On certification to the Superior Court, Appellate Division, whose opinion is reported at 220 N.J. Super. 550 (1987).
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, O'Hern and Stein. For affirmance -- Justices Handler, Pollock and Garibaldi. The opinion of the Court was delivered by O'Hern, J. Handler, J., dissenting. Justices Pollock and Garibaldi join in this opinion.
This is a difficult case that occasions little sympathy for the defendant-homeowner's position. But the issues transcend the circumstances of this defendant. The question presented is whether the presumption of owner responsibility that attends the disorderly persons offenses of utility-tampering under N.J.S.A. 2C:20-8(c) and -8(d) extends to the more serious crimes of theft of the utility's services under N.J.S.A. 2C:20-8(a) and -8(b).*fn1 Though the interpretation offers the attraction of symmetry, it would be inconsistent with the graduated structure of the Code, conflict with the language of the statute itself, and offend our usual rules of statutory construction. Accordingly, we reverse the judgment below, which erroneously extended the presumption to the more serious criminal offense of theft of electrical service under N.J.S.A. 2C:20-8(a) and -8(b).
The New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 to 98-4, represents a "clean break with the past," State v. Butler, 89 N.J. 220, 226 (1982), in its attempt to create a coherent and internally consistent structure of criminal offenses.
The Code seeks generally to consolidate conceptually similar offenses previously found scattered throughout our prior criminal statutes. See State v. Talley, 94 N.J. 385 (1983). Our discussions in State v. Lee, 96 N.J. 156 (1984), and State v. Harmon, 104 N.J. 189 (1986), explain how the Code has carefully graded offenses on the basis of the degree of an actor's moral culpability -- the state of the actor's mind.
It is the existence of the criminal purpose that explains why violations attended by a specific intent to commit a wrong are more serious offenses under the Code. State v. Lee, supra, 96 N.J. at 161. Thus, in State v. Lee we recognized that the Legislature might choose to attach culpability to the possession of certain objects under inappropriate circumstances even without any evidence of a criminal purpose (a fourth-degree offense). The mental-state provisions of the Code present a sensible structure and one that comports with our understanding of criminal responsibility. The lesser the grading of the offense, the less culpable need be the mental state of the actor.
A presumption that an actor has committed a wrong with the required criminal intent represents a legislative judgment of probable realities, balancing the quality of the actor's culpability with the gravity of the sanction to be imposed. For example, the complex grid of possessory offenses of weapons that the Legislature has created under N.J.S.A. 2C:39-1 to -15 reflects this balance of culpability with gravity. See State v. Lee, supra, 96 N.J. at 160-164. There is a common-sense appreciation that most people who have a license for a gun will produce it when asked. Hence, it is not unfair to suggest to the jury that in evaluating the third-degree offense of possessing an unlicensed weapon, it may infer from the nonproduction of the license that the gun is in fact unlicensed. State v. Ingram, 98 N.J. 489 (1985). But a jury may not infer that an unlawful purpose arises from that circumstance.
An example or two from the "Receiving stolen property" provision of the Code, N.J.S.A. 2C:20-7, suggests the balance that the Legislature makes between the actor's mental state and the degree of offense. Mere possession of stolen goods is not sufficient to constitute the offense unless the State can prove the defendant took possession either knowing the goods were stolen or believing they were probably stolen. See N.J.S.A. 2C:20-7(a). However, the Code sensibly allows a presumption of knowledge if a person either received other stolen goods within the previous year or currently has possession of more than one item stolen on separate occasions. N.J.S.A. 2C:20-7(b).*fn2 While it is possible that a person may buy or be given property without knowing that it is stolen, the chances of such behavior occurring without culpable intent surely decrease as the number of incidents increases.
The Legislature's structure of the theft offense in this case suggests the same considerations. Taken together, the provisions of N.J.S.A. 2C:20-8(a) and -8(b) represent an effort by the Code's drafters and the Legislature to deal with the reality that wealth today takes the form of both "property" and "services." Under prior false-pretenses-criminality statutes and case law, the object of the crime was limited to theft of property, leaving many forms of wealth unprotected. II Commentary: Final Report of the New Jersey Criminal Law Revision Comm'n 235 (1971). Hence, the Code's drafters proposed a generic crime of theft of services, and defined services, as 2C:20-8(a) now does, to include "labor, professional service, transportation, telephone, or other public service, accommodation in hotels, restaurants * * *" and so forth. This theft-of-services offense in turn was to be graded, like all other theft offenses, according to
the amount stolen.*fn3 N.J.S.A. 2C:20-2. Thus one who stole $75,000 or more worth of computer services would be guilty of a second-degree crime, N.J.S.A. 2C:20-2(b)(1), but one who stole less than $75,000 but more than $500 would be guilty of a third-degree crime. N.J.S.A. 2C:20-2(b)(2). One who stole less than $500, but at least $200, would be guilty of a fourth-degree offense, and one who stole less than $200 would be guilty of a disorderly persons offense. N.J.S.A. 2C:20-2(b)(3). As originally proposed then, the Code would have created no separate offense of utility-tampering. (We use the expression utility-tampering to refer as well to meter-tampering, splicing, shunting and other devices to steal utility services.) It contained only the two theft provisions covering purposeful acquisition with intent to avoid payment (now 2C:20-8(a)) and diversion of services (now 2C:20-8(b)).
Like so many other provisions of the Code, these went through a legislative evolution before final passage. Specifically, the Legislature tacked on the pre-Code utility-tampering offenses. N.J.S.A. 2A;170-63. See Appendix A for comparison of the Commission's recommendations and the pre-Code offense of utility-tampering. Unlike the theft offenses, the disorderly-persons offenses that were appended to the theft-of-services provisions of the Code of Criminal Justice have no gradation. N.J.S.A. 2C:20-8(c) and -8(d). The offenses deal with the condition of the metering device, or other physical apparatus of the utility. The legislative presumption in these provisions allows the fact-finder to infer that if the meter was tampered with, it was most probably the customer who did the tampering and thus had the covert purpose.
By its language and history then, the presumption that the customer has "created" the tampered condition is limited to the disorderly-persons offenses of connecting with the utility's
wires or cables, 2C:20-8(c)(1), disconnecting or tampering with the utility's meters or instrumentation, 2C:20-8(c)(2), or setting up one's own meter or shunting the service away from the meter, 2C:20-8(d).*fn4 Applying the presumption only to the lesser offenses is also consistent with the rest of the Code's approach of balancing the degree of criminal culpability with the gravity of the sanction imposed.
Our dissenting member argues that the logic of the situation suggests that the presumption ought to apply as well to the higher degree theft crimes. After all, most homeowners do not alter meters for benign purposes. We would not doubt his logic, but it should first find its way into the language of the statute.
The State argues that because 2C:20-8(c) states that "[t]he existence of any of the conditions with reference to meters, pipes, conduits or attachments, described in this section, is presumptive evidence" of customer tampering (emphasis added), the use of the word "section" was meant to refer to all of 2C:20-8, the theft offenses as well as the disorderly-persons offenses. The State deduces this from the fact that the Legislature made some slight amendments in the predecessor disorderly-persons law, N.J.S.A. 2A:170-6 (repealed 1979), changing the reference to "subsection" in carrying it over into 2C:20-8(d). The State suggests that the Legislature obviously intended that the term "subsection" refer to the particular subsection, (a), (b), (c), or (d), and "section" refer to the entire statute, and therefore concludes that the presumption described in N.J.S.A. 2C:20-8(c) clearly applies to all theft offenses of N.J.S.A. 2C:20-8. We are not as certain that the Legislature had such a nuance in mind.
Finally, basic principles of determining legislative intent counsel against recognizing a criminal presumption that the
Legislature has not clearly intended to create. If the presumption were applied to the theft offenses, 2C:20-8(a) and -8(b), then an entirely innocent customer, such as a dry cleaner whose lines have been tapped by another causing a loss of the utility's services in excess of $75,000, would be presumed guilty of a second-degree theft offense carrying a presumption of a five to ten year prison sentence. N.J.S.A. 2C:43-6(a)(2). We do not believe that the Legislature intended such a result.
"The [Supreme] Court has often stated that when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language." McNally v. United States, 483 U.S. 350, 359-360, 107 S. Ct. 2875, 2881, 97 L. Ed. 2d 292, 302 (1987). This is but another way of saying that statutes rendering behavior criminal and fixing the applicable penalties must do so in terms that cannot arguably be misunderstood and must be construed "so as to avoid the unfairness of arbitrary enforcement." State v. Maguire, 84 N.J. 508, 514 n. 6 (1980). Like the United States Supreme Court, "we adhere to the time-honored interpretive guideline that uncertainty concerning the ambit of criminal statutes should be resolved in favor of lenity." United States v. Kozminski, 487 U.S. , 108 S. Ct. 2751, 101 L. Ed. 2d 788, 810 (1988) (citation omitted); see also State v. Valentin, 105 N.J. 14, 18 (1987) ("Penal laws cannot be extended by implication or intendment. Where more than one reasonable interpretation may be made, or where the language is ambiguous * * * the construction must be drawn against the state." (citation omitted)).
Because at the very least the statute can arguably be misunderstood (notice how the majority and the dissent disagree on the meaning of the statute), it must be construed to avoid the unfairness of selective or arbitrary enforcement and to maintain the proper balance between Legislature, prosecutor and courts in the trial of criminal cases. In short, we should not be the ones to remold the statute when there is doubt about its application.
Having determined that the statutory presumption does not extend to the more serious theft offenses under 2C:20-8(a) and -8(b), we must ask whether the jury charge in this case, which allowed the jury to make the illicit presumption, was prejudicial error. To resolve that question, we must consider briefly the facts of this case.
For purposes of this appeal we shall accept the statement of facts in the State's brief. In August of 1984, the defendant experienced a partial loss of electrical service to his home and called the Jersey Central Power and Light Company (JCP & L) to repair the power outage. JCP & L linemen discovered the source of the outage and made the necessary repairs, but in the course of checking out his work a lineman noticed that defendant's electric meter was not working. He therefore removed the meter and replaced it with a new one, taking the malfunctioning meter back to JCP & L.
The following month, the defendant's wife, whose actions suggest that she was not part of any scheme, complained to the utility about the high electricity bill she had received. A meter tester from JCP & L found that the new electrical meter installed on August 27th was correctly calibrated but that the meter showed signs of having been tampered with, including evidence that the meter had been pulled out and replaced several times.
Further investigation disclosed that defendant had opened the original account with JCP & L in 1969, but that his average electrical use had increased substantially since the new meter was installed in August of 1984. In particular, the investigator noticed that from 1979 to August 1984 recorded consumption had been very low. The utility then checked the previously-removed meter. It was disassembled and it showed evidence of someone having tampered with it. Wires within the meter had been severed so that the meter would falsely measure a maximum of fifty percent of the electricity actually used. The
technique used led the investigator to conclude that only tampering and not malfunction could have produced that result. After comparing the earlier and later consumption figures, the utility concluded that defendant had stolen over $14,000 in electrical power over a five-year period. At trial, defendant denied tampering with the meter, contending that the first meter may have been altered by his son-in-law without defendant's knowledge or that the meter merely appeared to have been altered as a result of being dropped by the repairman.
Over the objection of the defendant, the trial court instructed the jury that if it found the existence of any type of tampering with respect to the defendant's electrical meter, then it could apply one of the presumptions found in N.J.S.A. 2C:20-8. As noted, these presumptions allowed the jury to find that the existence of the condition of tampering is sufficient to find that the defendant created or caused the condition with the intent to defraud the utility. The jury convicted defendant of theft of services. He was sentenced to five years probation and ordered to pay a $2500.00 fine, $14,284.61 restitution and $20.00 court costs. The trial court also imposed a $25.00 penalty payable to the Violent Crimes Compensation Board. On appeal, the Appellate Division ruled that "it was clearly the legislative intent to apply the statutory presumptions whenever a person was prosecuted for theft of services under N.J.S.A. 2C:20-8 and the requisite evidence of meter tampering produced to trigger its application, as occurred in this case." 220 N.J. Super. 550, 558 (1987). We granted certification, 110 N.J. 158 (1988), to review that judgment.
Since we have concluded that the presumption of criminal intent does not extend to the more serious theft offenses, we must only inquire whether the error in the charge had the capacity to affect the jury's verdict. On defendant's motion for new trial, the trial court concluded that even if you "take away the presumption and ask the question whether or not there was sufficient evidence from ...