STATE OF NEW JERSEY v. PHILIP J. ANTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PHILIP J. ANTER, a/k/a

PHILLIP ANTER,

Defendant-Appellant.

_______________________________

January 26, 2015

Submitted October 21, 2014 Decided

Before Judges Koblitz and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-01-00085.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen Nazaire, Assistant Deputy Public Defender, of counsel and on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Philip Anter, was convicted of third-degree witness tampering in violation of N.J.S.A. 2C:28-5(a)(2). At the conclusion of trial, the court sentenced Anter to a three-year term of probation, and imposed appropriate fines and penalties.

Defendant raises the following issues on appeal

I. THE WITNESS-TAMPERING CONVICTION MUST BE VACATED AND JUDGMENT OF ACQUITTAL ENTERED BECAUSE THE STATE FAILED TO INTRODUCE EVIDENCE OF THE ELEMENT OF THE OFFENSE THAT DEFENDANT DID ANYTHING THAT WOULD CAUSE THE WITNESS TO WITHHOLD ANY TESTIMONY, INFORMATION, DOCUMENT OR THING. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, 1, 10. (Not Raised Below).

II. THE CONVICTION WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE, NECESSITATING REVERSAL. U.S. CONST., AMEND XIV; N.J. CONST., ART. I, PAR. 10. (Not Raised Below).

After reviewing the record and contentions advanced on appeal, we affirm defendant's conviction.

The State produced the following evidence. On October 6, 2009, defendant's girlfriend, Jeanann Jergenson, was arrested and charged with stealing prescription medication out of Scott Baur's unlocked motor vehicle. Six days later, on October 12, 2009, defendant approached Baur, and asked him to drop the charges against Ms. Jergenson. It is from the content of this altercation, discussed below, that defendant was convicted of witness tampering.

Prior to the October 12, 2009 confrontation, Baur was in a neighbor's home, helping to install a boiler. While he was in the basement, a friend informed him that defendant was outside looking for him. Baur went outside, saw defendant, and asked, "what is it that I can help you with." Defendant responded by asking Baur to drop the charges, and when Baur refused, defendant told him, "if you don't drop the charges something bad is going to happen to you." (Emphasis added). At trial, the contents of this conversation were corroborated by the testimony of Baur's friend, who observed the interaction.

After the above exchange, Baur called the police because he feared for his safety, the safety of his wife, and the safety of his children. Baur testified that his wife and children were living directly across the street from defendant while Baur was in the military. Notwithstanding, Baur testified that defendant made no threatening or aggressive motions toward him. On cross-examination, Baur testified to the following

Q. Mr. Anter at no point said to you if you testify bad things will happen to you, did he?

A. No.

Q. Mr. Anter at no point said to you if you go back down to police headquarters and give them any more information bad things will happen to you, did he?

A. He did not state that.

[(Emphasis added).]

Defendant was found guilty on the above evidence.

On appeal, defendant argues for the first time that the State failed to introduce evidence that he "did anything that would cause the witness to withhold any testimony, information, document or thing," and that his conviction was against the weight of the evidence adduced at trial.

Pursuant to a defendant's motion for a new trial, the trial court should not overturn the jury verdict as against the weight of the evidence "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witness, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. On appeal, "[t]he trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; see also State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006) (explaining that no miscarriage of justice will be found where the "trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present"). To embark on that appellate review, however, a motion for a new trial should have been made to the trial court. Ibid. In the absence of such a motion, "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal . . . ." R. 2:10-1. While we need not entertain a weight of the evidence argument in the absence of a new trial motion, we may nevertheless choose to do so in the interest of justice, particularly in criminal appeals, because the "evidence may implicate constitutional rights which are not at stake in a civil appeal." Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 363 n.1 (App. Div. 1998) (citing State v. Smith, 262 N.J. Super. 487, 511-12, (App. Div.), certif. denied, 134 N.J. 476 (1993)).

When substantively reviewing a jury's verdict, an appellate court must accept as true the supporting evidence and all permissible inferences therefrom. Bell Atl. Network Servs., Inc. v. P.M. Video Corp., 322 N.J. Super. 74, 83 (App. Div.), (citation omitted), certif. denied, 162 N.J. 130 (1999); Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 489 (App. Div.), (citation omitted), certif. denied, 212 N.J. 198 (2012). As our Supreme Court stated in State v. Afanador, "[f]aith in the ability of a jury to examine evidence critically and to apply the law impartially serves as a cornerstone of our system of criminal justice." 134 N.J. 162, 178 (1993). "Unless no reasonable jury could have reached such a verdict, a reviewing court must respect a jury's determination." Ibid.

As for the crime of witness tampering,

[a] person commits [the] offense if, believing that an official proceeding or investigation is pending or about to be instituted, he knowingly attempts to induce or otherwise cause a witness or informant to

. . . .

(2) [w]ithold any testimony, information, document or thing.

[N.J.S.A. 2C:28-5(a)(2).]

Therefore, in this case the prosecution had to prove beyond a reasonable doubt that (1) defendant believed there was an official proceeding pending, and (2) defendant knowingly did something that a reasonable person would believe would cause somebody to withhold any information, testimony, document, or thing. Ibid.

We first note again that defendant failed to file a motion for a new trial, and therefore his claims are procedurally barred. R. 2:10-1. In any event, we find supporting evidence in the record from which the jury could have reasonably rendered its verdict. In State v. D.A., our Supreme Court held the first element of witness tampering is satisfied "when a defendant acts believing an official proceeding has or is about to be instituted." 191 N.J. 158, 170 (2007). Defendant's allusion to Ms. Jergenson's charges, when confronting Mr. Baur, plainly satisfies this requirement.

As for the second element, a rational jury could have interpreted Anter's comments to Baur as both threatening and an effort to cause Baur to drop the charges, and thereby not testify about the basis of Ms. Jergenson's charges. Defendant's statement that "if you don't drop the charges something bad is going to happen to you" can reasonably be interpreted as an attempt to cause Baur to withhold testimony or information. Thus, the State introduced evidence of both elements of witness tampering, and the jury's verdict was not against the weight of the evidence.

Affirmed.