State v. Lamantia ( 2021 )

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STATE OF CONNECTICUT v. JASMINE LAMANTIA
(SC 20190)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
Convicted, after a jury trial, of the crime of tampering with a witness, the
defendant appealed to the Appellate Court, claiming, inter alia, that there
was insufficient evidence to support her conviction. The defendant’s
boyfriend, R, and her former boyfriend, M, had engaged in an altercation
outside of her home. M, who was injured, called the police, after which
R left the premises. A state police officer who responded to the scene
spoke with M in the presence of the defendant, and M told the officer
that he had been assaulted by R and another person who was with R
at the time. The officer then went to R’s residence, where R showed
him his cell phone and told him that he should read the text messages
between the defendant and R. In those text messages, the defendant
informed R that the police were coming and instructed R to have blood
on his clothes. The defendant further told R that M had reported to the
police that R attacked him but that the defendant’s statement to the
police was that M was bloody when he arrived at her home because he
was in a bar fight somewhere else. The defendant directed R to tell the
police that M stalks her and emphasized that they needed to stick to
the same story. The officer subsequently confronted the defendant about
the text messages, and she stated that the text messages were taken
out of context. At trial, however, the defendant denied sending the
text messages. The Appellate Court upheld the defendant’s conviction,
concluding that the jury reasonably could have found that the defendant
tampered with a witness, R, by sending him text messages shortly after
his altercation with M. On the granting of certification, the defendant
appealed to this court, claiming that the Appellate Court improperly
had upheld her conviction because there was insufficient evidence from
which a jury reasonably could find that she had specifically intended
to interfere with a witness’ testimony at an official proceeding. Held
that the Appellate Court correctly determined that the jury reasonably
could have found that the defendant tampered with a witness when
she sent R text messages shortly after his altercation with M: the jury
reasonably could have inferred that, when the defendant sent the text
messages to R, she believed that an official proceeding was pending or
was about to be instituted at which R would likely be a witness, as
there was evidence presented at trial that the defendant knew of and
contributed to the investigation of the altercation, knew there were
witnesses to the altercation, including herself, knew there was physical
evidence of the altercation, namely, M’s injuries, knew the police were
taking M’s complaint against R seriously, and knew that the police were
interested in contacting R regarding the altercation; moreover, the jury
also reasonably could have inferred that the defendant induced or
attempted to induce R to testify falsely at that proceeding, as there was
evidence that the defendant knew that R was a critical witness to the
altercation under investigation and that she had instructed R on how
to fabricate his statement to the police so that it would match with her
statement, and the defendant’s own false testimony before the jury
regarding the nature of her relationship with R and her denial that she
ever had sent the text messages in question to R reasonably could have
led the jury to infer that, because she had no qualms about giving false
testimony herself, she intended for R to do the same when it was his
turn to testify.
(Three justices dissenting in two separate opinions)
Argued October 16, 2019—officially released September 3, 2020**
Procedural History
Substitute information charging the defendant with
the crimes of interfering with a police officer and tam-
pering with a witness, brought to the Superior Court
in the judicial district of New London, geographical
area number twenty-one, and tried to the jury before
A. Hadden, J.; verdict and judgment of guilty, from
which the defendant appealed to the Appellate Court,
DiPentima, C. J., and Alvord and Pellegrino, Js., which
reversed in part the trial court’s judgment and remanded
the case to that court with direction to render judgment
of not guilty on the charge of interfering with a police
officer, and the defendant, on the granting of certifica-
tion, appealed to this court. Affirmed.
Conrad Ost Seifert, assigned counsel, for the appel-
lant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Michael Regan, state’s
attorney, and Christa L. Baker, assistant state’s attor-
ney, for the appellee (state).
Opinion
KAHN, J. The defendant, Jasmine Lamantia,1 appeals
from the judgment of the Appellate Court affirming the
judgment of conviction, rendered after a jury trial, of
tampering with a witness in violation of General Stat-
utes § 53a-151 (a).2 State v. Lamantia, 181 Conn. App.
648, 671, 187 A.3d 513 (2018). The defendant claims
that the Appellate Court incorrectly concluded that
there was sufficient evidence to permit a jury to reason-
ably infer that, when she sent text messages to her
boyfriend, Jason Rajewski, after his altercation with
David Moulson, the defendant had the specific intent
to interfere with a witness’ testimony at an official pro-
ceeding. Specifically, the defendant contends that there
was no evidence to infer that she thought it was more
probable than not that a future criminal trial would
occur, or that she thought Rajewski would probably
testify at such a trial. The state responds that the evi-
dence was sufficient to prove beyond a reasonable
doubt that the defendant intended to induce Rajewski
to testify falsely in an official proceeding that she
believed to be imminent. We conclude that the Appel-
late Court correctly determined that the jury reasonably
could have found that the defendant tampered with a
witness by sending Rajewski text messages shortly after
his altercation with Moulson. Accordingly, we affirm
the judgment of the Appellate Court.
From the evidence presented at trial, the jury could
have reasonably found the following facts.3 On the eve-
ning of July 24, 2015, Earl F. Babcock and Rajewski
socialized for three or four hours at a bar in Norwich.
At that time, the defendant was in a romantic relation-
ship with Rajewski.4 At some point in the evening, the
defendant also arrived at the bar where Babcock and
Rajewski were socializing. After midnight and in the
early morning hours of July 25, 2015, at the defendant’s
suggestion, Babcock and Rajewski, in Babcock’s car,
followed the defendant from the bar to a house located
at 18 Bunny Drive in Preston, where some teenagers,
including the defendant’s son, Joshua Bivens, were hav-
ing a party. When they arrived, the defendant and Bab-
cock parked their cars, and the defendant immediately
went inside the house. Rajewski and Babcock lingered
near Babcock’s car, and, before they had the opportu-
nity to go inside the house, Moulson, the defendant’s
former boyfriend, arrived and pulled his car into the
driveway, shining the car’s headlights on Babcock and
Rajewski. Moulson exited his car, and he and Rajewski
had a verbal and physical altercation that resulted in
Rajewski striking Moulson and Moulson bleeding from
his face.
During the altercation, the defendant was inside the
house. One of the kids at the party came into the house
saying that Rajewski and Moulson were there, and the
defendant stepped back outside where she saw Moul-
son running toward the house with Rajewski and Bab-
cock behind him. Moulson ran into the house to call
the police, and the defendant told Babcock and Rajew-
ski that Moulson was calling the police and that they
should ‘‘get out of [there].’’ The defendant went back
into the house and stood beside Moulson, trying to
minister to his wound, while he called the police. Fol-
lowing the defendant’s warning that Moulson was call-
ing the police, Babcock and Rajewski left 18 Bunny
Drive. Babcock dropped Rajewski off at his home, and
then Babcock proceeded directly home himself.
Jonathan Baker, a Connecticut state trooper,
received a dispatch to 18 Bunny Drive for an active
disturbance at approximately 2:30 a.m.; he and another
trooper responded. Baker spoke to Moulson in the pres-
ence of the defendant, and Moulson told Baker that, as
he pulled into the driveway of the house, he was
assaulted by two males, one of whom he identified
as Rajewski. Moulson and the defendant gave Baker
Rajewski’s address, and Baker proceeded to that
address to continue the investigation. The other trooper
stayed at 18 Bunny Drive to continue speaking with
Moulson, which resulted in Moulson being taken into
custody in the presence of the defendant.
At Rajewski’s residence, Baker knocked on the door
and, when Rajewski answered, asked if Rajewski knew
why he was there. Rajewski indicated that he did know
why Baker was there and presented Baker with his cell
phone, telling Baker he should read the text message
conversation between the defendant and Rajewski. The
text messages from the defendant notified Rajewski
that the police were coming and instructed him to have
blood on his clothes. Baker further testified that the
defendant told Rajewski that Moulson reported to the
police that Rajewski had attacked him while he was in
his car but that the defendant’s statement to the police
was that Moulson was bloody when he got there
because he was in a bar fight somewhere else. The
defendant directed Rajewski to tell the police that Moul-
son stalks the defendant and Rajewski followed her to
18 Bunny Drive because he loves her. The defendant
emphasized to Rajewski that they needed to stick with
the same story, but Rajewski informed her that he was
going to tell the truth that Moulson attacked Rajewski
first. Based on his review of the text messages, Baker
concluded that the defendant had requested that Rajew-
ski lie to him.
While Baker was holding Rajewski’s cell phone,
Rajewski received a call from Babcock, and Baker
answered the call at Rajewski’s request, proceeding to
have a conversation with Babcock. Baker asked Bab-
cock if they could speak, and Babcock provided Baker
with his home address with the understanding that
Baker would be there shortly. Baker arrested Rajewski
and took him to the state police barracks, and then
Baker went to see Babcock at Babcock’s home. Baker
took Babcock into custody as well and transported him
to the barracks for processing. Later that morning, the
defendant arrived at the barracks to pick up Moulson.
At that time, Baker confronted the defendant about the
text messages she had sent to Rajewski. The defendant
told Baker that ‘‘it was autocorrect, spellcheck made
her do that,’’ and that the text messages were ‘‘taken
out of context and her phone made her do it.’’ Further,
when Baker asked what her intent was with respect to
the text messages, the defendant responded ‘‘that’s not
how I meant it.’’ Baker placed the defendant under
arrest on charges of tampering with a witness in viola-
tion of § 53a-151 (a) and interfering with a police officer
in violation of General Statutes § 53a-167a. See footnote
6 of this opinion.
We note that the jury’s verdict in the present case
was also informed by the following testimony offered
by the defendant at trial. The defendant testified that
she did not tamper with a witness because she did not
send the text messages to Rajewski at all. She denied
sending the text messages to Rajewski, claiming that
they were not sent from her phone or, if they were, that
someone else had sent them. During cross-examination,
the defendant denied that she was in a relationship with
Rajewski at the time of the altercation with Moulson,
claiming that their relationship spanned several
months, at the most, from ‘‘April to like June-ish.’’ When
confronted with a signed statement she gave to the
police5 stating that she had been in a relationship with
Rajewski until August, 2015, the defendant testified that
she ‘‘may have made a mistake . . . .’’ Regardless of the
timing of their relationship, the defendant was adamant
that she was not in love with Rajewski either at the
time of the altercation with Moulson or afterward. The
state introduced into evidence a Facebook message
that the defendant sent to Babcock on August 16, 2015,
in which she said, ‘‘I love [Rajewski] with all my heart
and would do anything for him! I’m sure [you] know
he just broke up with me. . . . I’m sure you know I
lied and said I saw [Moulson] get out of his car and go
after [Rajewski] in court. . . . I’m sure [you] know I
gave him 100 [percent] of me and loved him uncondi-
tionally when he was at his worst! [A]nd would give up
everything I have to be with him . . . . [S]o I’m sure
[you] know he broke my heart . . . . [P]lease tell him
I will be here waiting. And he’s my soulmate . . . .
[H]e brought out the real me after being abused for
[seven] years . . . .’’ When questioned about this mes-
sage, however, the defendant once again denied know-
ing anything about it or having sent it. The defendant
claimed, rather, that either the messages were not sent
from her account but from a fake account that someone
else set up, or that someone had hacked her account.
The jury returned a verdict of guilty of tampering
with a witness in violation of § 53a-151 (a), and the trial
court imposed a sentence of one year of incarceration,
execution suspended, and two years of probation.6 The
defendant appealed, claiming, inter alia, ‘‘that the evi-
dence was insufficient to support her conviction of
tampering with a witness. Specifically, she [argued] that
the state failed to prove that she sent the text messages
to Rajewski with the specific intent required for a con-
viction [under] § 53a-151 (a), that is, the intent to influ-
ence a witness at an official proceeding.’’ (Footnote
omitted.) State v. Lamantia, supra, 181 Conn. App.
663–64. The Appellate Court concluded that the ‘‘evi-
dence established that the defendant was aware of
Baker’s investigation of the physical altercation involv-
ing Rajewski, Babcock, and Moulson.’’ Id., 670. In addi-
tion, the Appellate Court stated that ‘‘[t]he jury could
also find that the defendant, knowing that Baker investi-
gated the physical altercation that had occurred at [18]
Bunny [Drive] and had learned the identity of the partici-
pants, including Rajewski, believed that an official pro-
ceeding probably would result therefrom.’’ Id. The
Appellate Court, therefore, affirmed the witness tam-
pering conviction, concluding that the jury reasonably
could have found that the defendant tampered with
Rajewski by sending him text messages shortly after
his altercation with Moulson. Id., 669–70. This appeal
followed.
We now turn to the defendant’s claim that there was
insufficient evidence for a jury to find that she specifi-
cally intended to interfere with a witness’ testimony at
an official proceeding. ‘‘When reviewing a sufficiency
of the evidence claim, we do not attempt to weigh the
credibility of the evidence offered at trial, nor do we
purport to substitute our judgment for that of the jury.’’
(Internal quotation marks omitted.) State v. Ortiz, 312
Conn. 551, 572, 93 A.3d 1128 (2014); see footnote 3 of
this opinion. ‘‘[W]e construe the evidence in the light
most favorable to sustaining the verdict. . . . We then
determine whether the jury reasonably could have con-
cluded that the evidence established the defendant’s
guilt beyond a reasonable doubt.’’ (Citation omitted.)
State v. Elmer G., 333 Conn. 176, 183, 214 A.3d 852(2019). ‘‘[W]e do not ask whether there is a reasonable
view of the evidence that would support a reasonable
hypothesis of innocence. We ask, instead, whether there
is a reasonable view of the evidence that supports the
[finder of fact’s] verdict of guilty.’’ (Internal quotation
marks omitted.) State v. Crespo, 317 Conn. 1, 17, 115
A.3d 447 (2015); see also State v. Rodriguez, 146 Conn.
App. 99, 110, 75 A.3d 798 (defendant who asserts insuffi-
ciency claim bears arduous burden), cert. denied, 310
Conn. 948, 80 A.3d 906 (2013). When a claim of insuffi-
cient evidence turns on the appropriate interpretation
of a statute, our review is plenary. See, e.g., State v.
Webster, 308 Conn. 43, 51, 60 A.3d 259 (2013).
‘‘A person is guilty of tampering with a witness if,
believing that an official proceeding is pending or about
to be instituted, he [or she] induces or attempts to
induce a witness to testify falsely . . . .’’ General Stat-
utes § 53a-151 (a). ‘‘An ‘official proceeding’ is any pro-
ceeding held or which may be held before any legisla-
tive, judicial, administrative or other agency or official
authorized to take evidence under oath, including any
referee, hearing examiner, commissioner or notary or
other person taking evidence in connection with any
proceeding.’’ General Statutes § 53a-146 (1). A ‘‘ ‘[w]it-
ness’ is any person summoned, or who may be sum-
moned, to give testimony in an official proceeding.’’
General Statutes § 53a-146 (6). Section 53a-151 (a)
applies to ‘‘any conduct that is intended to prompt a
witness to testify falsely or refrain from testifying in an
official proceeding that the perpetrator believes to be
pending or imminent.’’ State v. Cavallo, 200 Conn. 664,
668, 513 A.2d 646 (1986). Therefore, to support the
defendant’s conviction, the state had to demonstrate
beyond a reasonable doubt that (1) the defendant
believed that an official proceeding was pending or was
about to be instituted at which Rajewski would likely
be a witness, and (2) the defendant induced or
attempted to induce Rajewski to testify falsely at that
proceeding. See, e.g., State v. Ortiz, supra, 312 Conn.
554, 562; State v. Pommer, 110 Conn. App. 608, 614, 955
A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d 418(2008); State v. Bennett-Gibson, 84 Conn. App. 48, 52–
53, 851 A.2d 1214, cert. denied, 271 Conn. 916, 859 A.2d
570 (2004). It is important to note that ‘‘[i]ntent may
be, and usually is, inferred from the defendant’s verbal
or physical conduct. . . . Intent may also be inferred
from the surrounding circumstances. . . . The use of
inferences based on circumstantial evidence is neces-
sary because direct evidence of the accused’s state of
mind is rarely available. . . . Furthermore, it is a per-
missible, albeit not a necessary or mandatory, inference
that a defendant intended the natural consequences of
his voluntary conduct.’’ (Emphasis in original; internal
quotation marks omitted.) State v. Bennett-Gibson,
supra, 53.
An official proceeding that was pending or was about
to be instituted includes not only those proceedings
that have been initiated, but also those that are probable
or ‘‘readily apt to come into existence or [to] be contem-
plated’’ by a defendant. (Emphasis omitted; internal
quotation marks omitted.) State v. Ortiz, supra, 312
Conn. 570; State v. Foreshaw, 214 Conn. 540, 551, 572
A.2d 1006 (1990). ‘‘The crucial role police involvement
would play in that process cannot be disputed’’; State
v. Foreshaw, supra, 551; and, as a result, ‘‘attempts to
influence witnesses that happen to occur during a police
investigation are [not] excluded from the purview of
the statute,’’ so long as ‘‘the defendant acts . . .
believing that such a proceeding will probably occur
. . . .’’ State v. Ortiz, supra, 570–72. In coming to that
conclusion in Ortiz, this court analyzed the statutory
construction of § 53a-151 (a). Id., 561–67. We specifi-
cally considered whether, by not including the words
‘‘investigation,’’ ‘‘inform,’’ or ‘‘informant’’ as included in
Model Penal Code § 241.6 (1), the legislature intended
to exclude ‘‘situations in which the defendant seeks to
prevent an individual from speaking with the police.’’
(Internal quotation marks omitted.) Id., 568. ‘‘We
agree[d] that the legislature restricted the scope of the
witness tampering statute by omitting these words, but
the scope of the restriction was minimal.’’ Id. ‘‘[Section]
53a-151 (a) applies whenever the defendant believes
that an official proceeding will probably occur, even if
the police are only at the investigation stage.’’7 (Empha-
sis omitted.) Id., 568–69. Furthermore, ‘‘[a]s long as
the defendant believes that an official proceeding will
probably occur, it does not matter whether an official
proceeding is actually pending or is about to be insti-
tuted.’’ (Emphasis in original.) Id., 569. This court has
held that, ‘‘when [a] [defendant] knows that a witness
with relevant information already has spoken with the
police, a jury reasonably could infer that the [defendant]
believed that the investigation probably would progress
into an official proceeding.’’ Id., 571; see also State v.
Pommer, supra, 110 Conn. App. 619–20 (holding that
jury reasonably could have inferred that defendant
believed official proceeding was about to be instituted
when defendant knew police were aware of identities of
participants in robbery—one of whom was defendant—
and eyewitness had provided that information to
police).
In Ortiz, the court set forth two hypothetical scenar-
ios that illustrate with precision the minimal nature of
the restriction in instances in which the alleged witness
tampering has occurred during the police investigation
phase, before charges are brought or a suspect is
arrested. First, ‘‘consider a scenario in which an individ-
ual commits a crime that results in no physical evidence,
and in which the individual thereafter attempts to pre-
vent the one witness to the crime from speaking to the
police. The individual certainly could believe that the
police would investigate the crime, but he would have
no reason to believe that an official proceeding would
probably occur because there would be no evidence or
witnesses on which the police could rely to identify and
arrest the individual.8 In contrast, when an individual
knows that there is significant evidence connecting him
to the crime, or, even further, when the individual
knows that a witness with relevant information already
has spoken with the police, a jury reasonably could
infer that the individual believed that the investigation
probably would progress into an official proceeding.’’
(Footnote added.) State v. Ortiz, supra, 312 Conn. 570–
71.9 These two contrasting scenarios make clear that,
when the facts demonstrate that the defendant was
aware that there was significant evidence connecting
him to the crime or that at least one witness had spoken
to the police, an attempt to tamper with witnesses dur-
ing a police investigation falls under the purview of
§ 53a-151 (a).
The term ‘‘[w]itness,’’ as defined by § 53a-146 (6), is
broad, because it includes ‘‘any person summoned, or
who may be summoned, to give testimony . . . .’’
(Emphasis added.) If the jury reasonably could find that
the defendant knew that an individual had information
relevant to the underlying crime, and knew that the
individual ‘‘had provided a statement’’ to the police,
it would be ‘‘reasonable for the jury to infer that the
defendant believed that the [individual] probably would
be called to testify in conformity with that statement
at a future proceeding.’’ (Internal quotation marks omit-
ted.) State v. Sabato, 321 Conn. 729, 732, 748, 138 A.3d
895 (2016).
In the present case, the jury was presented with evi-
dence that the defendant had more than mere knowl-
edge of an investigation. The jury heard evidence that
the defendant knew there had been a physical alterca-
tion between Moulson, Rajewski, and Babcock;
observed head injuries on Moulson; was present when
Moulson called 911 to report the assault; knew that
Baker and the other responding state trooper were
investigating the altercation; provided the state troop-
ers with the name and home address of Rajewski; and
was aware that the troopers had the names of all three
men involved in the altercation. The defendant testified
that she was present at 18 Bunny Drive at the time of
the altercation, and, although she was inside of the
house and did not see the start of the altercation, she
saw Moulson running from Rajewski and Babcock and
into the house with blood on Moulson’s face. The defen-
dant and Babcock testified that the defendant warned
Rajewski and Babcock that Moulson was calling the
police and instructed them to leave 18 Bunny Drive,
further indicating that she knew they had been in an
altercation and that the police had been summoned.
The defendant and Moulson both confirmed that the
defendant was present when Moulson called the police
to report the incident, and Baker testified that the defen-
dant was present while he spoke with Moulson. The
defendant testified that she provided Baker with
Rajewski’s home address. Under these circumstances,
a jury reasonably could conclude that the defendant
(1) had knowledge of—and contributed to—the investi-
gation, (2) knew there were—and identified for the
police—witnesses to the incident, including herself, (3)
knew there was physical evidence of the crime as evi-
denced by Moulson’s injuries, and (4) knew that the
police were taking the complaint seriously enough to
track down witnesses in the middle of the night. On
the basis of this evidence, the jury could reasonably
infer that the defendant believed that the investigation
probably would progress into an official proceeding.10
See State v. Ortiz, supra, 312 Conn. 570–71.
In addition, the jury was presented with evidence,
including the defendant’s own testimony, that she knew
that Baker was interested in contacting Rajewski
regarding the altercation, and that he would probably
be called as a witness. The defendant testified that,
after Rajewski was identified as a participant in the
altercation, she provided his address to Baker, who left
18 Bunny Drive to go to Rajewski’s home. Rajewski
testified that the defendant, knowing that Baker was en
route to Rajewski’s home, sent Rajewski text messages
telling him to get away because the police were coming.
Baker’s testimony confirmed that the text messages
from the defendant to Rajewski ‘‘essentially [said] the
cops [were] coming, make sure you’re bloody and . . .
[Moulson was] abusive to her.’’ Baker further testified
that ‘‘[the defendant] want[ed] [Rajewski] to tell the
police or [Baker] that [Moulson] stalks her. [The defen-
dant] said [Moulson] was bloody when he got there.
[The defendant] told [the troopers] that [Moulson] was
in a bar fight somewhere else. And . . . [Rajewski]
only followed [the defendant] to that residence [at 18
Bunny Drive] because he loves her.’’ Baker also stated
that the defendant told Rajewski ‘‘that they need to
stick with the same story and it would be good. They
have to match.’’ Baker testified that Rajewski was upset
with the defendant’s text messages and told her ‘‘no,
I’m telling the truth. [Moulson] tried to kick my ass, so
I beat him up. And then . . . enough is enough.’’ Baker
further testified that the defendant responded that
‘‘[Rajewski’s] story has to match [hers]. [Moulson] looks
crazy. [Moulson] deserves it because of the beatings
he’s [done] to [her].’’ Baker testified that the crux of
the text conversation was that the defendant wanted
Rajewski to lie to the troopers, specifically, Baker. On
the basis of this evidence, a jury reasonably could infer
that, knowing that an official proceeding was probable,
the defendant’s text messages to Rajewski warning him
that the police were coming, directing that Rajewski
be bloody when Baker arrived, and providing Rajewski
with a false narrative of events that matched the false
information she allegedly gave to Baker, demonstrated
a clear understanding by the defendant that Rajewski’s
testimony would be critical at a future proceeding. See
State v. Sabato, supra, 321 Conn. 748 (‘‘[i]ndeed, the
defendant stated in one of those messages, ‘it’s YOUR
statement that is gonna fuck it up,’ thereby demonstra-
ting the defendant’s clear understanding that [the wit-
ness’] testimony would be critical at such a proceed-
ing’’).
The same evidence introduced by the state to prove
that the defendant believed an official proceeding was
about to be instituted at which Rajewski would likely
be a witness was also sufficient to allow the jury to
infer that the defendant induced or attempted to induce
Rajewski to testify falsely at that proceeding.11 ‘‘[A] jury
may consider a defendant’s attempt to prevent an indi-
vidual from giving a statement to the police as evidence
of [her] intent to influence the testimony of that individ-
ual at a future official proceeding. This conclusion is
limited, of course, by the statutory requirements that
(1) the defendant believe[d] an official proceeding [had]
been or [was] about to be instituted, and (2) the individ-
ual probably [would] be called to testify at that proceed-
ing.’’ State v. Ortiz, supra, 312 Conn. 560. When these
statutory requirements are met, it is reasonable to infer
that the defendant ‘‘intended the natural consequences
of [her] act, that is, to induce the [individual] to testify
falsely at the [proceeding].’’ Id., 565. Furthermore, ‘‘it
does not matter whether the police are at the investiga-
tion stage, the official proceeding stage, or any other
stage; [so] long as the defendant acts with the intent
to prevent a witness from testifying at an official pro-
ceeding, believing that such a proceeding will probably
occur, the defendant has tampered with a witness
within the meaning of § 53a-151 (a).’’ Id.; see also State
v. Pommer, supra, 110 Conn. App. 618 (‘‘[w]e reject the
contention that discouraging the witness from speaking
to the police could not suffice when there was evidence
that the defendant believed an official proceeding was
imminent’’).
The jury was presented with evidence that the defen-
dant knew Rajewski had been involved in a physical
altercation with Moulson and Babcock, Baker was
actively investigating Moulson’s complaint that he was
assaulted by Rajewski and Babcock, and Baker was on
his way to Rajewski’s home to continue his investigation
of the alleged assault on Moulson. Evidence was also
presented that the defendant knew Rajewski was a criti-
cal witness to the investigation and that she instructed
Rajewski on how to fabricate his statement to Baker
so it matched hers.
As with the first element, the defendant’s own testi-
mony supported an inference that she attempted to
induce Rajewski to testify falsely at a future official
proceeding. This is not a case in which the defendant
declined to take the stand to testify and the jury did
not have the benefit of her version of events from which
to assess her credibility or infer her intent. Nor did the
defendant take the stand and testify, as she now claims
on appeal, that she only wanted to protect Rajewski
and to prevent him from being charged with assault
because she loved him.12 Instead, at trial, the defendant
adamantly denied being in a relationship with Rajewski,
being in love with him, and sending him any text mes-
sages the night of the altercation. She maintained these
claims even when repeatedly impeached by her own
conflicting testimony, official statements to the police,
and incriminatory messages from her Facebook
account. The jury obviously found the defendant to be
dishonest and not credible because it rejected her claim
that someone else had sent the text messages to Rajew-
ski. In other words, the jury reasonably could have
concluded that the defendant had no qualms about per-
juring herself on the witness stand and, from such a
finding, could have inferred, in light of all the other
evidence, that the defendant intended Rajewski to do
the same thing when the time came. This undermines
any suggestion that the defendant could not be pre-
sumed to have contemplated that Rajewski should lie
at any trial that resulted from the police investigation
of the altercation. The defendant’s own testimony, cou-
pled with all the other evidence, was sufficient to allow
the jury to reasonably infer that the defendant
attempted to induce Rajewski to testify falsely at a
future official proceeding.13
In support of her claim, the defendant states that the
required inference that she believed an official proceed-
ing was about to be instituted was not reasonable
because the underlying crime was assault and not mur-
der, and ‘‘the probability of murder prosecutions
resulting in trials is much higher than a garden variety
G.A. prosecution . . . .’’14 We, however, find no prece-
dent that stands for the proposition that varying levels
of criminal severity alone determine a defendant’s belief
as to the probability of a future proceeding or whether
it was reasonable for the jury to reach the same conclu-
sion.15 To the contrary, this court and the Appellate
Court have upheld convictions for tampering with a
witness related to a range of criminal and noncriminal
activity. See footnote 14 of this opinion.
In addition, if the severity of the underlying crime
were a determinative factor when deciding whether an
official proceeding was probable, that could lead to
unfortunate consequences by encouraging the very
behavior the statute seeks to prevent. For example,
considering the severity of the underlying crime could
leave domestic violence victims vulnerable, because
perpetrators could engage in manipulative or control-
ling behavior designed to prevent victims from being
truthful with the police, without fear of being charged
with tampering with a witness. While the state does not
choose to prosecute every crime, and the state is more
likely to prosecute some crimes than others, preempt-
ing tampering charges for crimes perceived to be less
severe would shield a defendant from charges even
when other evidence and surrounding circumstances
clearly support a reasonable inference that a defendant
believed an official proceeding was probable. This is
the situation in the present case. Moulson testified that,
as a result of the assault, he was ‘‘bleeding pretty
severely’’ and needed ‘‘seven stitches in [his] eye.’’ The
defendant testified that she observed and initially
tended to this injury while Moulson called 911. Even if
we assume that Moulson’s injury, which required pro-
fessional, medical attention, was minor in nature—and
we certainly recognize that it is less severe than other
crimes including, but not limited to, murder—that fact
was not presented to the jury in isolation. The defendant
did not have mere passing knowledge that Moulson had
been assaulted, but, rather, she was present at the scene
of the crime, witnessed the end and aftermath of the
altercation, was involved in the police investigation,
provided Rajewski’s address to Baker, and knew the
police were taking the allegations seriously as Baker
left to immediately speak to Rajewski despite the early
morning hour. Even considering the severity of the
underlying crime, this evidence is sufficient for a jury
to reasonably conclude that the defendant thought an
official proceeding was probable.
In light of both the evidence presented at trial, includ-
ing the defendant’s own discredited testimony, and the
reasonable inferences that could be drawn therefrom,
we conclude that there was sufficient evidence for the
jury to have found beyond a reasonable doubt that,
at the time she sent text messages to Rajewski, the
defendant (1) believed that an official proceeding was
pending or was about to be instituted at which Rajewski
would likely be a witness, and (2) induced or attempted
to induce Rajewski to testify falsely at that proceeding.
See State v. Ortiz, supra, 312 Conn. 554, 562. Therefore,
the jury reasonably concluded that the defendant was
guilty of tampering with a witness pursuant to § 53a-
151 (a).
The judgment of the Appellate Court is affirmed.
In this opinion ROBINSON, C. J., and PALMER and
MULLINS, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** September 3, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
At the time of trial, the defendant had changed her last name to Bernardi.
For the purposes of this opinion, we continue to refer to her as Lamantia.
2
This court granted the defendant’s petition for certification to appeal,
limited to the following issue: ‘‘Did the Appellate Court properly conclude
that the evidence was sufficient to prove beyond a reasonable doubt that
the defendant intended to induce a witness to testify falsely in an official
proceeding that she believed to be pending or imminent, in violation of
General Statutes § 53a-151 (a)?’’ (Internal quotation marks omitted.) State
v. Lamantia, 330 Conn. 919, 194 A.3d 290 (2018).
3
As the Appellate Court noted, ‘‘this case is replete with conflicting testi-
mony regarding the timing and nature of the relationships between the
various parties, as well as the events of the night of July 24, 2015, and the
early morning of July 25, 2015. It was for the jury, and not this court, to
resolve discrepancies in the testimony.’’ State v. Lamantia, supra, 181 Conn.
App. 650 n.1. We observe that one would be hard-pressed to find a criminal
case without some degree of conflicting testimony and muddled motivations,
and we emphasize that, ‘‘[n]otwithstanding our responsibility to examine
the record scrupulously, it is well established that we may not substitute
our judgment for that of the trial court when it comes to evaluating the
credibility of a witness. . . . It is the exclusive province of the trier of
fact to weigh conflicting testimony and make determinations of credibility,
crediting some, all or none of any given witness’ testimony. . . . Questions
of whether to believe or to disbelieve a competent witness are beyond our
review. As a reviewing court, we may not retry the case or pass on the
credibility of witnesses. . . . We must defer to the trier of fact’s assessment
of the credibility of the witnesses that is made on the basis of its firsthand
observation of their conduct, demeanor and attitude.’’ (Internal quotation
marks omitted.) State v. DeMarco, 311 Conn. 510, 519–20, 88 A.3d 491 (2014).
The presence of conflicting testimony is the hallmark of an adversarial
system, not the basis upon which to reverse the reasonable findings of a jury.
4
In July, 2015, the defendant and Moulson lived together and may have
also been in a relationship.
5
The defendant became aware that Rajewski had stolen her credit cards
in the two weeks prior to the events at issue in the present case. The
defendant gave a statement to the police on October 21, 2015, in conjunction
with her filing of a complaint against Rajewski alleging that he had stolen
her credit cards, a crime for which Rajewski was arrested.
6
The defendant was also convicted of interfering with a police officer in
violation of § 53a-167a. The trial court imposed a concurrent sentence, as
to that conviction, of one year of incarceration, execution suspended, and
two years of probation. The defendant claimed on appeal that the evidence
was insufficient to support her conviction of interfering with a police officer.
State v. Lamantia, supra, 181 Conn. App. 653–54. The Appellate Court agreed
with the defendant, concluding that there was insufficient evidence to sustain
her conviction for interfering with a police officer, and remanded the case
to the trial court with direction to render a judgment of acquittal on that
charge and to resentence the defendant on the conviction of tampering with
a witness. Id., 663, 671.
7
It is well established that, in interpreting a statute, this court is bound
by our prior constructions of the statute. See, e.g., Kasica v. Columbia, 309
Conn. 85, 93–94, 70 A.3d 1 (2013); Hummel v. Marten Transport, Ltd., 282
Conn. 477, 494–95, 923 A.2d 657 (2007). We must presume that the legislature
is aware not only of this rule of statutory construction, but also of our
interpretation of § 53a-151 (a) in Ortiz. See, e.g., State v. Courchesne, 296
Conn. 622, 717, 998 A.2d 1 (2010). It is through this interpretive lens that
we must view the legislature’s determination to amend General Statutes
§ 53a-155, effective October 1, 2015, by adding a reference to a ‘‘criminal
investigation conducted by a law enforcement agency,’’ but failing to make
a similar amendment at that time to § 53a-151 (a). See Public Acts 2015,
No. 15-211, § 9. ‘‘Although we are aware that legislative inaction is not
necessarily legislative affirmation . . . we also presume that the legislature
is aware of [this court’s] interpretation of a statute, and that its subsequent
nonaction may be understood as a validation of that interpretation.’’ (Internal
quotation marks omitted.) State v. Courchesne, supra, 717. By choosing not
to adopt changes to the language of § 53a-151 (a) that were proposed one
year after our decision in Ortiz, we agree with the conclusion in Justice
D’Auria’s dissent that ‘‘we can infer that the legislature did not reject our
interpretation in Ortiz, leaving Ortiz in place as good law . . . .’’ Put another
way, in light of this court’s interpretation of § 53a-151 (a) in Ortiz, which
made clear that the omission of the term ‘‘investigation’’ effected only a
minor limit on the scope of § 53a-151 (a); State v. Ortiz, supra, 312 Conn.
568–69; we must infer that the legislature, being aware of that interpretation,
did not see any need to amend the statute.
8
Just four months following its decision in Ortiz, this court considered
under what circumstances a jury could reasonably infer that a defendant
thought that an official proceeding was probable to support a conviction
of tampering with physical evidence in violation of § 53a-155 (a). State v.
Jordan, 314 Conn. 354, 376–79, 102 A.3d 1 (2014) (In considering whether
defendant believed that official proceeding was pending or likely to be
instituted, this court concluded that ‘‘§ 53-155 (a) applies, no matter what
stage the police have actually reached in their investigation, as long as the
defendant believes that it is probable that an official proceeding will arise.
This interpretation is consistent with the commentary to the Model Penal
Code . . . . It is also consistent with our interpretation of an identical
phrase in . . . § 53a-151 (a).’’ (Citation omitted; emphasis in original; foot-
note omitted; internal quotation marks omitted.)). Jordan provided scenar-
ios similar to those provided in Ortiz: ‘‘For instance, in a scenario in which an
individual commits a crime with no witnesses, and he immediately thereafter
discards the one piece of physical evidence connecting him to the crime,
the individual certainly could believe that the police would investigate the
crime, but he would have no reason to believe that an official proceeding
would likely occur because there would be no evidence or witnesses upon
which the police could rely to locate and arrest him. In contrast, when an
individual knows that there is significant evidence connecting him to the
crime, a jury reasonably could infer that the individual believed that the
investigation probably would progress into an official proceeding. We
emphasize, however, that it is not the existence of an investigation that is
key but, rather, whether the defendant believes an official proceeding is
pending or probable.’’ (Footnote omitted.) Id., 382–83.
With those distinctions in mind, this court concluded in Jordan that the
defendant discarded the only physical evidence tying him to the crime and
that there was no evidence that the police officer knew his identity or of
any other information connecting him to the crime. Id., 386. In other words,
at that point in time, the discarded physical evidence was the only evidence
linking the defendant to the crime. Id. The defendant discarded it to prevent
detection or to avoid being implicated in the crime in the first instance,
and, without such evidence, the police would not know of his involvement
in the crime. Id., 381, 384. These facts were similar to the first illustrative
scenario outlined previously, and, therefore, a jury could not reasonably
infer that the defendant believed that an official proceeding was probable.
Id., 386.
Jordan is distinguishable from the present case. In the present case, the
defendant claims that she attempted to convince Rajewski to lie to the
police to help prevent him from being arrested and charged with assault.
However, Rajewski had already been implicated in the crime by Moulson
and the defendant, and Babcock was also aware of Rajewski’s identity.
Even without Rajewski’s statement, the police would have known of his
involvement in the assault. These facts more closely align with the second
illustrative scenario posited by this court in both Ortiz and Jordan, whereas
the facts in Jordan more closely align with the first scenario.
9
Justice Ecker’s dissent misconstrues this court’s decision in State v.
Ortiz, supra, 312 Conn. 551. That dissent states that, ‘‘[o]ur inquiry in Ortiz
. . . ultimately and necessarily turned on the defendant’s intent with respect
to the official proceeding itself.’’ The determination of whether the defendant
believed that an official proceeding is pending or about to be instituted is
not wholly independent of interference in a prearrest police investigation.
A jury may consider a defendant’s attempt to induce a potential witness to
lie to the police during a prearrest investigation as evidence of his intent
to affect that witness’ conduct at a future, official proceeding. State v. Ortiz,
supra, 564–65; see also State v. Cavallo, supra, 200 Conn. 673–74. It is
immaterial whether a warrant has been issued or an arrest has been made,
and ‘‘it does not matter whether the police are at the investigation stage,
the official proceeding stage, or any other stage . . . .’’ State v. Ortiz,
supra, 571.
10
Justice Ecker’s dissent takes umbrage at the state’s assertion during
closing arguments that it ‘‘had satisfied its burden of proof with respect to
the defendant’s belief that an official proceeding was pending or imminent
because it had established that the defendant ‘knew the cops were involved’
and, therefore, ‘[c]learly . . . knew that a proceeding ha[d] been insti-
tuted,’ ’’ calling that argument an ‘‘egregious misstatement of law.’’ A review
of the state’s closing argument relating to the witness tampering charge
suggests that the state’s argument contained more than a simple reference
to knowing ‘‘the cops were involved,’’ by accurately reciting the elements of
the offense and the evidence the state felt proved both elements. Specifically,
during that portion of the state’s closing argument, it argued: ‘‘With regards
to the charge of tampering with a witness, in order to prove that charge,
the state needs to prove two elements, the defendant believed that an official
proceeding was about to be instituted and that [Rajewski] was likely to
be a witness, and the defendant induced or attempted to induce him to
testify falsely or with false testimony. This requirement, the requirement
of the defendant believing an official proceeding was about to be instituted
can be satisfied if the defendant knew that she could have been implicated
in a crime and she asked, threatened, or induced a witness to withhold
evidence from [the] police. It does not matter that it was in the investigative
phase of the criminal justice process. It doesn’t matter that the police were
still figuring out what happened. It just matters that she intended to prevent
that witness from speaking with [the] police or [from] telling the police
the truth.
‘‘The state feels it has met its burden of proof with regards to both of
these elements in that [the defendant] spoke with the police. She knew the
cops were involved. She told them to leave, the cops were coming. She
spoke with them at the home. Clearly, she knew that a proceeding has been
instituted. Clearly, she knew an investigation was currently in the process.
She knew [Rajewski] was likely to be a witness. How did she know this?
By her own testimony, she gave the police [Rajewski’s] name. [Moulson]
knew that [Rajewski] was likely to be a witness because he told the police
he was the one who assaulted him. As far as her inducing or attempting to
induce a witness to testify falsely, you heard the officer testify to the text
messages that she sent that night. Again, we’ll get into that more later. She
sent those text messages telling him, hey, this is my story, basically. This
is my story, this is what I told the cops. We need to match. This is what
you need to tell them. [Rajewski] resisted. He said, no, let’s just tell them
the truth. Let’s tell them the truth. This is what happened. No, our stories
need to match. You need to tell them this. So, I feel the state has met its
burden of proof with regards to both elements of this crime, and we will
we be asking you find the defendant guilty.’’ (Emphasis added.)
Viewed in its entirety, the state’s closing argument relating to the witness
tampering charge was not misleading. See, e.g., State v. Felix R., 319 Conn.
1, 9, 124 A.3d 871 (2015) (‘‘[w]hen reviewing the propriety of a prosecutor’s
statements, we do not scrutinize each individual comment in a vacuum but,
rather, review the comments complained of in the context of the entire
trial’’ (internal quotation marks omitted)). The state’s argument was consis-
tent with its theory of the case as articulated on the first day of trial, when
the state’s attorney noted that ‘‘the crux of the state’s claim during the
course of this case is going to be that [the defendant] lied to [the] police
and attempted to get [Rajewski] to lie to [the] police in order to protect
him and herself.’’ The state’s argument clearly places this case in the second
scenario illustrated in Ortiz, described previously in this opinion, because,
at the time the defendant tampered with a witness, she had knowledge of the
existence of multiple witnesses and significant evidence. This is a perfectly
permissible line of argument consistent with Ortiz. Even if the state had
misstated the law during closing argument, the trial court properly instructed
the jury on the essential elements of the offense, as the dissent concedes.
Further, the court repeatedly instructed the jury, including prior to closing
arguments, that, ‘‘[i]f in any way counsel makes a statement regarding the
law that differs from what I instruct you on, it’s what I say that counts.’’
See, e.g., State v. Williams, 258 Conn. 1, 15 n.14, 778 A.2d 186 (2001) (‘‘[i]t
is a fundamental principle that jurors are presumed to follow the instructions
given by the judge’’ (internal quotation marks omitted)). It is also important
to note that the defendant did not challenge the claim that an official proceed-
ing was probable. Rather, the defendant’s theory of the case was that the
text messages and witness tampering claims were fabricated by Rajewski
in order to get the defendant in trouble because she previously had him
arrested for stealing her credit cards.
11
The defendant contends that, by sending the text messages to Rajewski,
she was solely attempting to prevent Rajewski’s arrest. The jury, however,
‘‘is not required to accept as dispositive those inferences that are consistent
with the defendant’s innocence. . . . The trier may draw whatever infer-
ences from the evidence or facts established by the evidence it deems to
be reasonable and logical. . . . This does not require that each subordinate
conclusion established by or inferred from the evidence, or even from other
inferences, be proved beyond a reasonable doubt . . . because this court
has held that a [jury’s] factual inferences that support a guilty verdict need
only be reasonable. . . .
‘‘[A]s we have often noted, proof beyond a reasonable doubt does not
mean proof beyond all possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of innocence posed by
the defendant that, had it been found credible by the [jury], would have
resulted in an acquittal.’’ (Internal quotation marks omitted.) State v. Seeley,
326 Conn. 65, 72–73, 161 A.3d 1278 (2017).
12
This may have been a closer case if the jury had not heard—and clearly
discredited—the defendant’s own testimony, in which she adamantly denied
sending any text messages to Rajewski for any purpose, rather than claim,
as she does on appeal, that she sent them to protect him. In essence, the
defendant asks this court to determine that the jury could have reasonably
inferred an intent from conduct that the defendant herself disavowed under
oath at trial.
13
Justice D’Auria contends that the defendant’s trial testimony simply is
irrelevant to the determination of whether the jury reasonably could have
concluded that the defendant was attempting to induce Rajewski to testify
falsely at a likely future prosecution, apparently because that testimony
occurred sixteen months after the conduct at issue. We disagree with Justice
D’Auria. Although the defendant did not testify directly about that element
of the offense—instead, she falsely and repeatedly asserted that she did not
try to corruptly influence Rajewski at all, an assertion that, for good reason,
the jury rejected as incredible—her testimony at trial afforded the jury
the opportunity to evaluate firsthand her demeanor, credibility, character,
sophistication, and motive. For obvious reasons, all of these considerations
are highly relevant to the ultimate determination of the defendant’s intent
when she urged Rajewski to lie to the police. This is particularly true because
state of mind is most often ascertained, as it was here, on the basis of
inferences rather than direct evidence, and, so, the ability of the jury to
assess the defendant’s intent on the basis of her sworn testimony on the
witness stand is an important factor supporting the jury’s conclusion regard-
ing that element of the offense. The fact that the defendant’s testimony was
given sixteen months after the events in question does not deprive that
testimony of probative value with respect to what the defendant did or
intended at that earlier date. Indeed, we are aware of no support in our
case law, or anywhere else for that matter, for the proposition that testimony
by a witness about past events is irrelevant to the jury’s assessment of that
witness’ intent.
14
In addition to her claim that the severity of the underlying crime should
be a factor to consider, the defendant advances several additional arguments
for which we conclude there is no legal basis. First, she claims that the
required inference that Rajewski would likely be a witness at a future official
proceeding was not reasonable because the case ‘‘may be resolved by means
of nolle prosequi, diversionary programs, or a guilty plea,’’ or, even if there
were a trial, Rajewski could ‘‘[exercise] his [f]ifth [a]mendment right to not
testify.’’ (Internal quotation marks omitted.) Witness tampering charges may
be brought in connection with any official proceeding, regardless of the
seriousness of the underlying crime alleged in that proceeding, and the
myriad possible future resolutions of the underlying charges are immaterial
to a determination of whether the defendant believed an official proceeding
was probable when he or she engaged in the alleged witness tampering
conduct. See, e.g., State v. Sabato, supra, 321 Conn. 732 (defendant instructed
friend not to cooperate with investigation of cell phone theft); State v.
Cavallo, supra, 200 Conn. 665 (police officer tampered with likely witness
at noncriminal arbitration proceeding). It is also immaterial whether there
are circumstances that could excuse a potential witness from testifying at
an official proceeding, including the investigation not resulting in an official
proceeding. See, e.g., State v. Ortiz, supra, 312 Conn. 569 (‘‘it does not
matter whether an official proceeding is actually pending or is about to be
instituted’’ (emphasis omitted)); see also State v. Sabato, supra, 732, 748 (it
was reasonable for jury to infer that, when defendant knew that an individual
had relayed relevant information to police, defendant believed that individual
would likely be called to testify about that information at future proceeding).
Second, the defendant argues that she did not know how the assault
allegations would be resolved because she was not a party to the underlying
crime. Any individual—including, but not limited to, friends, family members,
and associates—can engage in and be charged with tampering with a witness
under § 53a-151 (a), and such charges are not restricted to the targets or
defendants of the underlying proceeding. See, e.g., State v. Bennett-Gibson,
supra, 84 Conn. App. 50–51 (sister of defendant in underlying sexual assault
case was charged with tampering with witness when she attempted to induce
witness to drop charges against her brother). Finally, the defendant claims
that, even if the jury could reasonably infer that the defendant believed that
Rajewski would be a witness at an official proceeding, the defendant’s text
messages were nonthreatening and intended merely to protect Rajewski.
Any attempt to induce a witness to testify falsely, whether by force or
otherwise, may result in witness tampering charges. See, e.g., id., 48 (sister
of defendant offered to help witness with bills, obtain an apartment, or
anything else necessary for witness to drop charges against her brother);
State v. Coleman, 83 Conn. App. 672, 675–76, 851 A.2d 329 (defendant
provided nonthreatening instruction on what witnesses were to say in order
to create alibi for defendant), cert. denied, 271 Conn. 910, 859 A.2d 571(2004), cert. denied, 544 U.S. 1050, 125 S. Ct. 2290, 161 L. Ed. 2d 1091 (2005).
Nor do we believe that tampering with a witness charges require the
tamperer to benefit personally by avoiding criminal charges or a conviction,
or that the defendant personally witness the underlying crime, arguments
that were not raised by the defendant. We find no precedent to support
either of these considerations. Even if being a witness to the underlying
crime were a requirement—which it is not—in the absence of the alleged
tampering, the defendant in the present case was nonetheless a witness to
the underlying crime. If any of the participants in the altercation itself were
charged, the defendant could have expected to be called as a witness. She
was with Rajewski and Babcock immediately prior to their arrival at the
location of the altercation and had a relationship with each of the parties.
While she was in the home when the altercation began, she observed the
end of it when she saw a bleeding Moulson running toward the house and
away from Rajewski and Babcock, who were chasing Moulson.
15
Likewise, Justice Ecker’s dissent looks to the severity of the underlying
crime as a factor to consider when assessing whether a jury reasonably
concluded that the defendant believed an official proceeding was probable.