STALKING
(N.J.S.A. 2C:12-10b) (Cases arising
before March 21, 2009)
Count _______ of this indictment charges
defendant with the crime of stalking.
(Read Indictment)
The applicable statute provides, in
pertinent part, that:
A person is guilty of stalking....if he
purposely or knowingly engages in a course
of conduct directed at a specific person
that would cause a reasonable person to fear
bodily injury to himself or a member of his
immediate family or to fear the death of
himself or a member of his immediate family.
In order for you to find defendant guilty,
the State must prove each of the following
elements beyond a reasonable doubt:
1. that defendant purposely or
knowingly engaged in a course of conduct
directed at a specific person,
2. that defendant purposely or
knowingly engaged in that conduct
repeatedly;
3. that when defendant engaged in
the course of conduct, he/she had a
conscious object or was aware that the
course of conduct would cause a reasonable
person to be in fear of bodily injury or
death to himself/herself or to his/her
immediate family.
(Charge if applicable:
4. that defendant’s conduct did not
occur during organized group picketing.
The first element that the State must prove
beyond a reasonable doubt is that defendant
purposefully or knowingly engaged in a
course of conduct directed at (name of
person).
A person acts purposefully with respect to
the nature of (his/her) conduct or a result
thereof if it is (his/her) conscious object
to engage in conduct of that nature or to
cause such a result. A person acts
purposefully with respect to attendant
circumstances if (he/she) believes or hopes
that they exist. A person acts purposefully
if (he/she) acts with design, with a
specific intent, with a particular object or
purpose, or if (he/she) means to do what
(he/she) does.
A person acts knowingly with respect to the
nature of (his/her) conduct or the attendant
circumstances if (he/she) is aware that
(his/her) conduct is of that nature, or that
such circumstances exist or if (he/she) is
aware of a high probability of their
existence. A person acts knowingly with
respect to a result of (his/her) conduct if
(he/she) is aware that it is practically
certain that (his/her) conduct will cause
such a result.
Purpose and knowledge are conditions of the
mind that cannot be seen and that can be
determined only by inferences from conduct,
words or acts. A state of mind is rarely
susceptible of direct proof but must
ordinarily be inferred from the facts.
Therefore, it is not necessary that the
State produce witnesses to testify that an
accused said that (he/she) had a certain
state of mind when (he/she) engaged in a
particular act. It is within your power to
find that such proof has been furnished
beyond a reasonable doubt by inference,
which may arise from the nature of
defendant’s acts and conduct, from all that
(he/she) said and did at the particular time
and place, and from all surrounding
circumstances.
Course of conduct means repeatedly
maintaining visual or physical proximity to
a person or repeatedly conveying, or causing
to be conveyed, verbal or written threats or
threats conveyed by any other means of
communication or threats implied by conduct
or a combination thereof directed at or
toward a person.
Communication means any form of
communication made by any means, including,
but not limited to, any verbal or written
communication, communications conveyed by
any electronic device, which includes, but
is not limited to, a wire, radio,
electromagnetic, photoelectric or
photo-optical system, telephone, including a
cordless, cellular or digital telephone,
computer, video recorder, fax machine,
pager, or any other means of transmitting
voice or data and communications made by
sign or gesture.
The second element that the State must prove
beyond a reasonable doubt is that defendant
purposely or knowingly engaged in that
conduct repeatedly. I have already defined
purposely and knowingly. Repeatedly means
on two or more occasions.
The third element that the State must prove
beyond a reasonable doubt is that when the
defendant engaged in the course of conduct,
he/she had the purpose or knew that the
course of conduct would cause a reasonable
person to be in fear of bodily injury or
death to himself/herself or to his/her
immediate family.
“Bodily injury” means physical pain, illness
or any impairment of physical condition.
“Immediate family” means a spouse, parent,
child, sibling or any other person who
regularly resides in the household or who
within the prior six months regularly
resided in the household.
(Charge if Applicable)
The fourth element that the State must prove
beyond a reasonable doubt is that
defendant’s conduct did not occur during
organized group picketing.
If you find that the State has proved every
element of the offense beyond a reasonable
doubt, then you must find defendant guilty
of stalking. If you find that the State has
failed to prove any element of the offense
beyond a reasonable doubt, then you must
find defendant not guilty.
[Where the degree of the offense is in
question, the following should be charged,
if applicable.]
Stalking is ordinarily a crime of the fourth
degree. It is, however, a crime of the
third degree if defendant, in committing the
crime of stalking:
[Charge the appropriate alternative]
a. Violated an existing court order
prohibiting the behavior;
or
b. Committed a second or subsequent
offense of stalking against the same victim;
or
c. Was serving a term of
imprisonment or was on parole or probation
as the result of a conviction for any
indictable offense under the laws of this
State, any other state or the United States.
If you find beyond a reasonable doubt that
defendant committed the crime of stalking,
but do not find that the State has proven,
beyond a reasonable doubt, that in
committing the crime, defendant (charge
as appropriate: violated an existing
court order prohibiting the behavior,
committed a second or subsequent offense of
stalking against the same victim, and/or was
serving a term of imprisonment or was on
parole or probation as a result of a
conviction for any indictable offense under
the laws of this State, any other state or
the United States), then your verdict must
be guilty of fourth-degree stalking.
If you find beyond a reasonable doubt that
defendant committed the crime of stalking
and further find that the State has proven,
beyond a reasonable doubt, that in
committing the crime, defendant (charge
the appropriate: violated an existing
court order prohibiting the behavior,
committed a second or subsequent offense of
stalking against the same victim, and/or
committed the crime while serving a term of
imprisonment or while on parole or probation
as a result of a conviction for any
indictable offense under the laws of this
State, any other state or the United
States), then your verdict must be guilty of
third-degree stalking.
In most cases, where
degree is in question, the trial
court, after the jury returns its
verdict of guilty to stalking,
should then try the issue of degree
before the same jury sequentially;
first taking whatever additional
proofs are necessary, then charging
the jury with this additional
language, under the principles set
forth in State v. Chenique-Puey,
145 N.J. 334 (1996) and
State v. Ragland, 105 N.J.
189 (1996).
This sentencing
alternative may require the trial
court to sanitize the prior
conviction. State v. Brunson,
132 N.J. 377 (1993). Further,
the trial court probably must grant
a defendant’s offer to stipulate to
this custodial element. Cf.
State v. Alvarez, 318 N.J.
Super. 137, 150-154 (App. Div.
1999).
