State v. Ortiz-Saldana

A conviction for witness tampering must be based on evidence that a defendant intended to induce a person “not to testify or to testify falsely” in a hypothetical future criminal proceeding. The intent must be understood from Defendant’s mindset when making the threats. State v. Bailey, 346 Or 551 (2009).

Defendant appealed a judgment of conviction for tampering with a witness (ORS 162.285). Defendant assigned error to the trial court’s denial of Defendant’s motion for judgment of acquittal based on insufficient evidence to convict. On appeal, Defendant argued that the record was insufficient to support a finding “beyond a reasonable doubt that Defendant knowingly attempted to induce the complainant to offer false testimony in an official proceeding.” Defendant argued that his attempt to persuade complainant to change her police report accusing his son of assault does not alone qualify as “testimony in an official proceeding.” In response, the State argued that the record was sufficient to find witness tampering because Defendant attempted to induce the complainant to not testify against his son in a potential future proceeding. A conviction for witness tampering must be based on evidence that a defendant intended to induce a person “not to testify or to testify falsely” in a hypothetical future criminal proceeding. The intent must be understood from Defendant’s mindset when making the threats. State v. Bailey, 346 Or 551 (2009).  The Court of Appeals held that the trial court erred in denying Defendant’s motion for judgment of acquittal because Defendant’s belief that the complainant might testify against his son in a future official proceeding is not enough to conclude that he attempted to prevent or falsify her testimony in that potential official proceeding under Bailey. The Court found that Defendant’s attempt to induce a false statement was, at most, an intent to prevent an official proceeding from occurring. Reversed.