Before Judges Havey, Keefe and A.A. Rodr¡guez.
The opinion of the court was delivered by: Havey, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2000 - Decided March 8, 2000
On appeal from Superior Court of New Jersey, Law Division, Ocean County.
Defendant was convicted by a jury of third-degree criminal restraint pursuant to N.J.S.A. 2C:13-2, which provides in pertinent part that "[a] person commits a crime of the third degree if he knowingly: a. Restrains another unlawfully in circumstances exposing the other to risk of serious bodily injury . . . ." We agree with defendant that the jury instruction given here did not make clear that the requisite mental state of "knowledge" applies to all material elements of the offense, including the risk of serious bodily injury to the victim. We therefore reverse and remand for further proceedings. *fn1
The State presented evidence that sixteen-year old K.B., the alleged victim, had been defendant's friend since her childhood. During their long friendship, they communicated daily. They "went for rides" and defendant often took K.B. shopping.
On November 28, 1996, at approximately 11:30 p.m., K.B. and her friend, Wakeen Conover, walked towards Conover's vehicle, which was parked in front of K.B.'s sister's house on James Street in Lakewood. K.B. got into the passenger seat of the vehicle. When defendant suddenly appeared and got into the driver's seat, Conover ran back into the house. K.B. testified that she attempted to jump out of the vehicle, but was restrained by defendant. Defendant then drove the vehicle away at approximately thirty-five to forty miles per hour while K.B.'s feet were scraping along the street.
K.B.'s brother chased defendant in his own vehicle. According to Brown, during the chase his vehicle reached a speed of up to fifty-five miles per hour. He testified that defendant's vehicle made a "sharp" turn "all the way in the other lane" before coming to a stop.
According to K.B., during the chase she asked to be returned to her sister's home. Defendant responded that he would do so once her brother-in-law, who was also following them, stopped the chase. K.B. testified that defendant proceeded throughout the neighborhood at approximately twenty-five to thirty miles per hour for approximately thirty minutes. Defendant was "calm" and "under control" and insisted that he intended to return K.B. to her sister's home.
Eventually, defendant stopped the vehicle one block behind K.B.'s sister's home. Defendant and K.B. then walked around the neighborhood with defendant holding K.B.'s hand. Her attempts to run away were unsuccessful. They returned to the vehicle, drove by K.B.'s sister's home and noticed that police officers were present. Defendant then parked one block from K.B.'s sister's house and walked away.
K.B. acknowledged that she was testifying because her parents threatened that if she did not, a warrant would be issued for her arrest. She admitted that on the day of the episode she had been with defendant earlier and that defendant had paged her on her beeper. She also acknowledged that after the episode she explained to the police and the prosecutor's office that defendant had not threatened her or forced her "to do anything" while they were in the vehicle.
Defendant testified that on the day of the incident K.B. attempted to page him. She later called him and gave him directions to her sister's house. When defendant arrived at the house, he got into Conover's vehicle with K.B. The vehicle was running and in gear and began to "buck just like a horse" while his left leg was still outside the vehicle. He asked K.B. to get into the car and close the door for her safety. During the "bucking," the vehicle did not exceed seven miles per hour.
While driving through the neighborhood, a relative of defendant told him that the police were looking for him. When he proceeded toward K.B.'s sister's house, K.B. told him not to stop. He therefore parked the vehicle one block from the house, ...