On certification to the Superior Court, Appellate Division, whose opinion is reported at 265 N.J. Super. 577 (1993).
Stein, Clifford, Handler, Pollock, O'Hern, Garibaldi
The opinion of the Court was delivered by STEIN, J.
In this appeal we consider whether the trial court erred in failing to instruct the jury at defendant's request on the offense of criminal restraint as a lesser-included offense of kidnapping. The jury convicted defendant of first-degree kidnapping and first-degree aggravated sexual assault. The Appellate Division reversed the kidnapping conviction, holding that the trial court had
improperly declined to give the criminal-restraint charge, because in the Appellate Division's view the evidence provided a basis for the charge and defendant had requested it. 265 N.J. Super. 577, 590 (1993).
A Union County grand jury indicted defendant on charges of first-degree kidnapping, contrary to N.J.S.A. 2C:13-1b, and first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a, in connection with the abduction and rape of a thirteen-year-old girl. The victim, M.C., testified at trial that defendant had seized her as she was walking to school and had carried her across the street to the front of an undeveloped lot. Defendant threw M.C. to the ground and struck her several times in the face. He then dragged her behind the foliage of the densely wooded lot to a spot from which she could not see the street, and there he raped her. A witness, Judy Barlow, testified that she had observed defendant from her apartment window carry M.C. across the street, throw her to the ground, and strike her in the face. Barlow left the window to call the police. When she returned, she could no longer see defendant and M.C. but could hear screams and muffled noises emanating from the shrubbery of the lot.
Officer Gilliam, who was patrolling in the area, responded to Barlow's call within minutes. Gilliam testified that when he arrived at the wooded lot, he did not see defendant and the victim from the street. Gilliam covertly entered the shrubbery and observed defendant on top of M.C. Unsure whether defendant was armed, Gilliam retreated to call for assistance and then reentered the wooded area. At that point defendant appeared to hear the officer because he quickly stood up and ran out of the lot. Gilliam, on foot, pursued defendant, who at one point "ran right out of his black shorts," but then Gilliam lost sight of defendant when he entered an apartment building. Another police officer apprehended defendant on a street behind the apartment building, and testified at trial that when apprehended defendant had pieces
of leaves and shrubbery in his hair and on his clothes and wore only undershorts below the waist. Gilliam identified defendant at the scene and at trial as the same man he had observed on top of the victim in the wooded lot and as the same man he had closely pursued.
While the police officers were chasing defendant, M.C. left the wooded area and encountered a private ambulance that had responded to the scene. M.C. told an ambulance worker that a man had followed her, had picked her up off the street, and had dragged her into the wooded area, where he had raped her. The ambulance, at the direction of a police detective, took M.C. to the street where the police officers had detained defendant. She identified defendant as the man who had seized and assaulted her.
The kidnapping statute requires that a removal be accomplished by force, threat, or deception, or, in the case of a child under fourteen years old, without the consent of a parent, N.J.S.A. 2C:13-1d. The parties stipulated at trial that the parents of M.C. did not consent to her being removed from the street. Defendant's defense at trial was misidentification. He testified that he had been walking to his brother's house, the address of which he did not know, when a police officer had come up behind him and had struck him over the head with a night stick. Defendant, fearing for his safety, had begun running, with the officer in pursuit. Defendant testified that at one point he had hidden in some bushes to avoid being captured. Defendant denied having carried, struck, or raped M.C., and disclaimed any knowledge of the wooded lot where the sexual assault occurred.
Prior to jury deliberations, defense counsel requested that the court charge the jury on third-degree criminal restraint, N.J.S.A. 2C:13-2, as a lesser-included offense of the first-degree-kidnapping charge on which defendant had been indicted. The trial court declined to give the requested charge, stating that it did not find criminal restraint to be a lesser-included offense of the "kidnapping by asportation" charged in this case, although the court acknowledged that criminal restraint might be a lesser-included
offense of kidnapping by confinement. The court further stated, "I don't think there's any facts which would give the jury the basis to bring that particular statute into play." The court charged the jury on first- and second-degree kidnapping and on first-degree aggravated sexual assault and second-degree sexual assault.
The jury convicted defendant of first-degree kidnapping and first-degree aggravated sexual assault. The trial court, in accordance with N.J.S.A. 2C:13-1c(2), sentenced defendant on the kidnapping conviction to life imprisonment with a twenty-five-year parole-ineligibility period. The court merged the aggravated-sexual-assault conviction into the kidnapping conviction as required by N.J.S.A. 2C:13-1c(2). The Appellate Division reversed defendant's kidnapping conviction on the basis that the trial court had erred in failing to charge the jury at defendant's request on criminal restraint. 265 N.J. Super. at 590. The Appellate Division determined that regardless of whether criminal restraint "is an elemental lesser included offense of the kidnapping for which defendant was indicted," id. at 587, the trial court should have instructed the jury on criminal restraint because the defendant had requested the lesser charge and the evidence provided a basis for the charge. Id. at 590. We granted the State's petition for certification and denied defendant's cross-petition. 134 N.J. 563 (1993).
N.J.S.A. 2C:1-8e provides that a court "shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." The statute has been characterized and construed as requiring not only a rational basis in the evidence for a jury to convict the defendant of the included offense but requiring also a rational basis in the evidence for a jury to acquit the defendant of
the charged offense before the court may instruct the jury on an uncharged offense. See 2 Final Report of the New Jersey Criminal Law Revision Commission, § 2C:1-7 (renumbered when enacted as 2C:1-8) commentary at 26 (1971) ("Subsection e states that the Court shall not charge the jury on an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense."); State v. Sloane, 111 N.J. 293, 299, 544 A.2d 826 (1988) ("When a lesser-included offense charge is requested by a defendant, the trial court is obligated * * * to examine the record thoroughly to determine if there is a rational basis in the evidence for finding that the defendant was not guilty of the higher offense charged but that the defendant was guilty of a lesser-included offense.").
In drafting N.J.S.A. 2C:1-8e, the Criminal Law Revision Commission relied substantially on section 1.07 of the Model Penal Code. See 1 Final Report of the New Jersey Criminal Law Revision Commission, supra, § 2C:1-7 source at 8. As originally drafted that Model Penal Code section provided that a court "shall not charge the jury" on a lesser offense unless a rational basis exists in the evidence. Prior to adoption of the official draft, the American Law Institute amended the provision to read that a court "shall not be obligated to charge the jury." Model Penal Code and Commentaries § 1.07 cmt. at 134 (Official Draft and Revised Comments 1985). The drafters added those words "to allow a court to submit an illogical included offense if the court believes that it is proper to do so. This, in effect, recognizes the jury's right to return a compromise verdict * * * ." Ibid. Our Code does not contain the change, and instead retains the "shall not" language. N.J.S.A. 2C:1-8e. The refusal to adopt the Model Penal Code amendment reflects "an unwillingness to accede to the reasoning offered to support the revision. Accordingly, under our Code it is improper for a trial court to charge [an offense], even when requested by the defendant, if there is no evidence in the record to support a * * * conviction." State v. Crisantos, 102 N.J. 265, 276, 508 A.2d 167 (1986). See also Model Penal Code
and Commentaries, supra, § 1.07 cmt. at 135 ("Most courts * * * adhere to the view that it is not proper for a trial Judge to submit a lesser included offense unless some reasonable interpretation of the evidence would support an acquittal of the greater inclusive offense and a conviction of the lesser included offense.").
Thus, our Code follows the earlier form of Model Penal Code section 1.07(5) (formerly numbered 1.08(5)). The commentary to the original Model Penal Code draft discusses the rationale and application of that section:
Where the proof goes to the higher inclusive offense and would not justify any other verdict except a conviction of that offense or an acquittal, it would be improper to instruct the jury with respect to included offenses. Instructions with respect to included offenses in such cases might well be an invitation to the jury to return a compromise or otherwise unwarranted verdict. The submission of an included crime is justified only where there is some basis in the evidence for finding the defendant innocent of the crime charged and yet guilty of the included crime. The presence of such evidence is the determinative factor. For example, if the prosecution's evidence tends to show a completed robbery and there is no ...