N.J. Model Criminal Jury Charge, N.J.S.A. 2C:29-2a

Revised 5/7/07

RESISTING ARREST - FLIGHT ALLEGED

(N.J.S.A. 2C:29-2a)

[Count

of T]he indictment charges the defendant with committing the crime of

resisting arrest by flight [and by using or threat ening to use force or physical violence against

_________] AND/OR [using any (other) means to creat e a substantial risk of causing physical

injury to]. The indictment reads as follows:

(Read Indictment)

The statute on which this charge is based reads as follows:

A person is guilty ... if he, by flight, 1 purposely prevents or attempts to

prevent a law enforcement officer from effecting an arrest . . . [and uses or

threatens to use physical force or violence against the law enforcement

officer or another] AND/OR [uses any (other) means to create a substantial

risk of causing physical injury to the public servant or another].

2

In order to convict the defendant of this charge, the State must first prove beyond a

reasonable doubt that defendant committed the basic offense3 of resisting arrest. The four elements

of that offense are:

1. That was a law enforcement officer.

2. That was effecting an arrest.

1 P.L. 2000, c. 18, section 2, effective April 28, 2000, creates N.J.S.A. 2C:29-2a(2), which makes it a fourth

degree offense to resist arrest “by flight.”

2 N.J.S.A. 2C:29-2a(1) to (3).

3 In State v. Simms, 369 N.J. Super. 466, 472 (App. Div. 2004), the Court reversed a conviction for third degree

resisting arrest because, “although the jury was told which elements had to be found in order for defendant to be guilty of

some crime, that is, resisting, resisting by flight, or resisting by physical force, it was not made aware of the significance

of its findings in terms of the seriousness, i.e., the grading, of the offense. It should have been clearly apprised of that

consequence of its various findings.” This language, howev er, appears to depart from numerous appellate decisions

holding that juries should not be instructed as to the sentencing consequences of their decisions in order not to distract

them from their essential fact-finding function. Since this portion of Simms was intended to provide the “context that we

consider defendant’s plain-error argument that th e jury should have been charged on self-defense”( id. at 472), the

Committee has decided not to specify the degree of each form of resisting arrest in this model charge. Rather, in

describing the various elements of the offense, as well as in the final paragraphs that describe the various verdicts that the

jury can arrive at, the charge uses the terms “basic offense” (disorderly persons resisting), “more serious offense” (fourth

degree resisting with flight), and “the most serious offense charged in the indictment, which is the most serious form of

the crime” (third degree resisting pursuant to N.J.S.A. 2C: 29-2a(1)(a) or (b)).

RESISTING ARREST - FLIGHT ALLEGED

(N.J.S.A. 2C:29-2a)

3. That defendant knew or had reason to know that was a law

enforcement officer effecting an arrest.

4. That defendant purposely prevented or attempted to prevent from

effecting the arrest.

The first element that the State must prove beyond a reasonable doubt is that was a

law enforcement officer. A law enforcement offi cer is a person whose public duties include the

power to act as an officer for the detection, apprehension, arrest and conviction of offenders against

the laws of this State.4

The second element that the State must prove beyond a reasonable doubt is that _____ was

effecting an arrest. It is not a defense to a prosecution under this subsection that the law enforcement

officer was acting unlawfully in making the arrest, provided (he/she) was acting under color of

(his/her) official authority and provided the law enforcement officer announces (his/her) intention to

arrest prior to the resistance.

5

The third element that the State must prove beyond a reasonable doubt is that the defendant

knew or had reason to know that was a law enforcement officer effecting an

arrest.6 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 conduc t is of that nature, or that such circumstances

exist, or he/she is aware of a high probability of their existence. A person acts knowingly with

respect to a result of his/her conduc t if he/she is aware that it is practically certain that his/her

conduct will cause such a result. "Knowing," "with knowledge" or equivalent terms have the same

meaning.7

The fourth element that the State must pr ove beyond a reasonable doubt is that defendant

purposely prevented or attempted to prevent from effecting the arrest. A person acts

purposely with respect to the nature of his/her conduct or a result of his/her conduct if it is his/her

4 See N.J.S.A. 2C:25-19c.

5 Where the issue arises, the jury should also be inst ructed that the State must prove beyond a reasonable doubt

that the law enforcement officer was, in fact, acting under color of law and did announce (his/her) intention to arrest. See

State v. Kane, 303 N.J. Super. 167, 181-182 (App. Div. 1997).

6 State v. Parsons, 270 N.J. Super. 213, 222 (App. Div. 1994).

RESISTING ARREST - FLIGHT ALLEGED

(N.J.S.A. 2C:29-2a)

conscious object to engage in conduct of that nature or to cause such a result. That is, a person acts

purposely if he/she means to act in a certain way or to cause a certain result. A person acts

purposely with respect to attendant circumstances if he/she is aware of the existence of such

circumstances or he/she believes or hopes that they exist. “With purpose,” “designed,” “with

design,” or equivalent terms have the same meaning.

8

Purpose and knowledge are conditions of the mind which cannot be seen and can only be

determined by inference 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, members of the

jury, 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 his/her

acts and his/her conduct, and from all he/she said and did at the particular time and place, and from

all the surrounding circumstances.

If you find that the State has failed to prove any one of these elements beyond a reasonable

doubt, then you must find the defendant not guilty.

(THE FOLLOWING SHOULD BE USED WHEN DEFENDANT DENIES FLIGHT)

If you find that the State has proven the basic offense of resisting arrest beyond a reasonable

doubt, you must continue your deliberations to consider whether the State has proven beyond a

reasonable doubt that he/she committed the more seri ous offense of resisting arrest by the act of

flight. The defendant denies any flight (OR the defendant denies that the acts constituted flight).

Mere departure from a place where a crime has been committed does not constitute flight. The State

must prove beyond a reasonable doubt that the defendant, fearing that he/she would be arrested, fled

for the purpose of evading that arrest.

OR

(THE FOLLOWING SHOULD BE USED WHERE DEFENDANT HAS NOT

7 N.J.S.A. 2C:2-2b(2).

8 N.J.S.A. 2C:2-2b(1).

RESISTING ARREST - FLIGHT ALLEGED

(N.J.S.A. 2C:29-2a)

DENIED THAT HE/SHE LEFT THE SCENE BUT CLAIMS THAT

HE/SHE DID SO FOR A REASON OTHER THAN EVADING ARREST)

If you find that the State has proven the basic offense of resisting arrest beyond a reasonable

doubt, you must continue your deliberations to consider whether the State has proven beyond a

reasonable doubt that he/she committed the more seri ous offense of resisting arrest by the act of

flight. The defendant (OR the defe nse) has not denied that he/she left the scene, but claims that

his/her purpose was not to evade arrest, but, rather, was to:

[SET FORTH EXPLANATION SUGGESTED BY DEFENSE]

The State must prove beyond a reasonable doubt that the defendant, fearing that he/she

would be arrested, fled for the purpose of evading that arrest.

If you find that the State has proven beyond a reasonable doubt all five elements of the

offense, then you must find the defendant guilty of resisting arrest by flight. If the State has failed to

prove the fifth element beyond a reasonable doubt, you must find the defendant guilty only of the

basic offense of resisting arrest.

If you find that the State has proven all of the above elements either of resisting arrest or the

more serious offense of resisting arrest by flight beyond a reasonable doubt, you must continue your

deliberations to consider the offense charged in the indictment, which is the most serious form of the

crime of resisting arrest: namely,

[CHOOSE APPROPRIATE ALTERNATIVE]

whether the State has proven beyond a reasona ble doubt that, in resisting arrest, the

defendant used or threatened to use physical force or violence against a law enforcement officer or

another.9 “Another” against whom physical force or violence is used or threatened does not include

defendant himself/herself.10 Physical force means the exercise of strength or power against the

victim. That force need not entail pain or bodily harm and need not leave any mark. 11 Physical

9 N.J.S.A. 2C:29-2a(3)(a).

10 State v. Bunch, 180 N.J. 534, 546 (2004).

11 State v. Brannon, 178 N.J. 500, 504 and 510 (2004).

RESISTING ARREST - FLIGHT ALLEGED

(N.J.S.A. 2C:29-2a)

violence means dynamic power showing great strength, power, intensity, fury, and destructiveness.12

[OR]

whether the State has proven beyond a reasona ble doubt that, in resisting arrest, the

defendant used any (other) means to create a substantial risk of causing physical injury to a public

servant or another.13 “Another” against whom any (other) means of creating a substantial risk of

causing physical injury is used does not include defendant himself/herself.14 Physical Injury means

physical pain, illness, or any impairment of physical condition.15 A substantial risk is one that is of

such a nature and degree that, considering the nature and purpose of the defendant’s conduct and the

circumstances known to him/her, its disregard i nvolves a gross deviation from the standard of

conduct that a reasonable-person would observe in the defendant’s situation.

In other words, the

State must prove beyond a reasonable doubt that defendant knew that it was very likely that his/her

conduct would create a risk of causing physical in jury to ______, but that he/she went ahead

anyway, where a reasonable person would not. I have already defined knowing for you.

If you find that the State has proven beyond a reasonable doubt this (these) last element(s) of

the offense then you must find the defendant gu ilty of resisting arrest by [choose applicable

provision(s) of N.J.S.A. 2C:29-2a(3)], the offense charged in the indictment, the most serious form

of the crime of resisting arrest. If the State has failed to prove this last element beyond a reasonable

doubt, then you must find the defendant guilty of either the basic offense of resisting arrest, or the

more serious crime of resisting arrest by flight, depending on whether or not you find that the State

has proven the element of flight beyond a reasonable doubt.

16

12 Id. at 510.

13 N.J.S.A. 2C:29-2a(3)(b). Although the broad definition of “public servant” in N.J.S.A. 2C:27-1g is applicable

to Chapter 29 offenses, there is no need to define that term any differently than “law enforcement officer” in the context

of resisting arrest. “[N.J.S.A. 2C:29-2] was altered before enactment…to limit the broad category of ‘public servant’ to

‘law enforcement officer’…” Cannel, Criminal Code Annotated, Comment 1, N.J.S.A. 2C:29-2 (2006 Ed.).

14 State v. Bunch, 180 N.J. 534, 546 (2004).

15 N.J.S.A. 2C:11-1a. See State v. Wallace, 158 N.J. 552, 558 (1999).

16 N.J.S.A. 2C:1-13a and State v. Ragland, 105 N.J. 189 (1986). The jury should be provided with a verdict form

which will allow them to record which verdict they have entered.