(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In this appeal, the Supreme Court must determine whether a threat by a person against a witness who saw him commit a crime, made to avoid official action against him, is an attempt to silence a witness while "believing that an official proceeding or investigation is pending or about to instituted," as that language is used in N.J.S.A. 2C:28-5(a).
Defendant, D.A., was charged with committing five crimes: sexual assault, criminal sexual contact, endangering the welfare of a child, child abuse, and witness tampering. The issue in this appeal relates to the tampering charge.
The basic facts are not disputed. D.A. lived with his family in the same motel as his thirteen-year-old victim, Tracie (a false name used to protect her privacy). Tracie's best friend, Jessica (also a false name), often stayed in Tracie's room. Jessica witnessed D.A.'s regular sexual advances toward Tracie, including many French-kissing incidents. One day, when Tracie was not in the room, D.A. told Jessica that "if she said anything to anybody," he would "take full custody" of Tracie, and Jessica would never see her again. Jessica believed D.A. made a threat to keep her silent, but she did not think he could carry it out. At the time, Jessica did not intend to report what she saw to authorities, although she told her mother.
At trial, D.A. moved for a judgment of acquittal on the witness tampering charge. D.A. argued that from the evidence presented, the jury could not conclude that he believed an official proceeding or investigation was about to begin when he threatened Jessica; and thus he could not be found guilty of witness tampering. The trial court denied the motion. After the trial court dismissed the child abuse count for other reasons, the jury found D.A. guilty of the four remaining charges. After merging certain counts, the court sentenced D.A. to five years in prison for witness tampering and to a consecutive nine-year jail term for sexual assault.
D.A. appealed. The Appellate Division rejected D.A.'s claims, concluding that it was as much of a crime to try to prevent a witness from reporting information to authorities that could trigger an investigation, as it was to try to prevent that witness from talking to authorities who already had information that would justify starting an investigation.
The Supreme Court granted D.A.'s petition for certification solely on the tampering issue.
The opinion of the court was delivered by: Justice Long
On certification to the Superior Court, Appellate Division.
This case centers on the meaning of the language in the witness tampering statute, N.J.S.A. 2C:28-5(a), that criminalizes a defendant's knowing attempts to silence a witness while "believing that an official proceeding or investigation is pending or about to be instituted." In particular, we are asked whether a threat by a defendant against a person who has observed him in a crime, with the purpose to forestall official action, will satisfy the above-cited language.
On a motion for a judgment of acquittal, the trial judge answered that question in the affirmative. Thereafter, defendant was convicted of tampering and the Appellate Division affirmed. We now reverse. Because there can be no tampering, within the meaning of N.J.S.A. 2C:28-5(a), unless the defendant acted, believing that an official proceeding or investigation was pending or about to be instituted, and because there was no evidence that this defendant held such a belief, his conviction cannot stand.
Defendant, D.A., was charged by an Atlantic County Grand Jury with five separate offenses: (1) second-degree sexual assault, N.J.S.A. 2C:14-2(c); (2) fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); (3) third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); (4) fourth-degree child abuse, N.J.S.A. 9:6-3; and (5) third-degree witness tampering, N.J.S.A. 2C:28-5(a). At trial, defendant moved for a judgment of acquittal on the tampering charge on the ground that his conduct did not violate the statute because, at the time he acted, he did not believe "an official proceeding was about to be instituted."
The basic facts surrounding the tampering charge are not in dispute. Defendant lived with his family in the same motel as his victim, Tracie,*fn1 who was thirteen years old. Tracie's closest friend, Jessica, often stayed over at Tracie's and observed defendant's regular sexual advances toward Tracie, including multiple instances of French-kissing.
One day, when defendant and Jessica were in Tracie's room alone, defendant told Jessica that "if she [said] anything to anybody, [he would] take full custody of Tracie and [Jessica would] never see her again." Jessica understood defendant to be making a threat to keep her silent, but did not believe he could carry it out. Also, at the time of the threat, there was no evidence to indicate to defendant that Jessica had any intention of reporting what she saw to the authorities. She did, however, tell her mother about defendant's conduct when she returned home. Defendant's threat to Jessica is the focal point of this appeal.
The trial judge denied defendant's motion for judgment of acquittal on the tampering charge. The judge dismissed the child abuse count, and a jury found defendant guilty of the four remaining charges. After appropriate mergers, defendant was sentenced to a custodial term of five years for witness tampering and to a consecutive term of nine years with four and one-half years of parole ineligibility on the second-degree sexual assault count.
Defendant appealed, challenging among other things, denial of the motion to dismiss the tampering count. The Appellate Division rejected that claim, concluding "[i]t is no less an offense to seek to prevent a witness from conveying to authorities information that would trigger an investigation than to seek to prevent that witness from communicating with authorities who have received information from other sources that would justify the commencement of an investigation."
We granted certification solely on the tampering issue, 188 N.J. 220 (2006).
Defendant argues that from the evidence presented, the jury could not conclude that he "believ[ed] that an official proceeding or investigation [was] pending or about to be instituted" when he threatened Jessica; that without such a conclusion, the statutory elements could not be satisfied; and that even if ...