                                                                      FILED
                                                                   APRIL 27, 2017
                                                             In the Office of the Clerk of Court
                                                           WA State Court of Appeals, Division Ill




I               IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                   DIVISION THREE

j    STATE OF WASHINGTON,                         )         No. 34055-4-111
                                                  )
i                          Respondent,            )
                                                  )
           V.                                     )         UNPUBLISHED OPINION
                                                  )
     JUSTIN RYAN GRAHAM,                          )
                                                  )
                           Appellant.             )

           PENNELL, J. -    Justin Graham was convicted of one count of intimidating a

     witness under RCW 9A. 72.110( 1)(a). He appeals, arguing the evidence is insufficient to

     support his conviction because there is no evidence he intended to influence the

     witnesses' testimony. We affirm.

I'                                           FACTS1
i
I          On June 28, 2015, Justin Graham's neighbors observed him assaulting his
I
lI   girlfriend and called the police. After law enforcement responded, Mr. Graham was

     arrested and taken to a police car. During this process, Mr. Graham's brother, Brandon


l          1
              Because Mr. Graham appeals the sufficiency of the State's evidence, we construe
     the facts and inferences therefrom in the light most favorable to the State. State v.
     Salinas, 119 Wn.2d 192,201, 829 P.2d 1068 (1992).
     No. 34055-4-111
     State v. Graham


     Graham, arrived at the scene. Mr. Graham told Brandon2 his neighbors, Don Maupin and

     his girlfriend, had called the police on him. Mr. Graham also said, "You're dead," as he

     passed by Mr. Maupin under police escort. 1 Verbatim Report of Proceedings (VRP)

     (Sept. 28, 2015) at 141. Brandon subsequently confronted Mr. Maupin and repeated the

     same warning.


I          In either late June or early July, Brandon went back to the apartment complex and


l    again confronted Mr. Maupin. This time, Brandon tried to attack Mr. Maupin with brass



l    knuckles. However, someone alerted Brandon that he was being recorded. Brandon then

     left the scene, threatening Mr. Maupin that he would be back.



I          On July 2, 2015, the Graham brothers participated in a recorded jail call and

     engaged in the following discussion:

                   JUSTIN GRAHAM: Well I just talked to [Department of
           Corrections] today and I got, I got twenty days violation, that's it. But I'm
           trying to figure out what's up on the, on the [domestic violence] assault
           charge cause fuckin, uh, fuckin, Don and his girl, fuckin, are, are my
           witnesses, our witness saying that they fucking, that I, uh, they, they said all
           kinds of shit on my shit dude. They need to get their faces smashed in, both
           them.
                   BRANDON GRAHAM: Yeah, I tried to run em over and fucking
           hop out the car and break his face, last night when there was I saw I was on
           camera so I had to take off, came back next morning, had him hemmed up,
           got my mother fucking (INAUDIBLE) but I need to get him off camera.


lI         2   For ease of reference, Brandon Graham is referred to by his first name.


l!                                                 2

i
I
l
i
No. 34055-4-III
State v. Graham


               JUSTIN GRAHAM: I know. Um, yeah, cause they, uh, and then I
       went to court and they're saying that Don, Don went there saying that I did
       all kinds of shit to [my girlfriend] and all bunch of weird of shit. But hey I
       was told that, uh, somebody in here told me that if you put money on my
       books on Fri[ day] or on Saturday that I, uh, that they won't take it from me.

Ex. 103 at 6-7.

       About a week after the call, Brandon returned to Mr. Maupin's apartment

complex. He assaulted one of Mr. Maupin's associates and then turned on Mr. Maupin

and punched him in the face. Brandon told Mr. Maupin, "This is for snitching on my

brother." 1 VRP (Sept. 28, 2015) at 149.

       Justin Graham was charged with one count of intimidating a witness in an attempt

to influence the witness' testimony. RCW 9A.72.l 10(1)(a). He was found guilty after a

bench trial. This appeal follows.

                                        ANALYSIS

       A person is guilty of intimidating a witness if a person, by use of a threat against a

current or prospective witness, attempts to influence the testimony of said witness. RCW

9A.72.110(l)(a). The nature of the threat contemplated by the witness intimidation

statute is very specific. It is not enough that the threat was made in an attempt to deter a

witness from providing information to the police, as opposed to testifying in court. State

v. Brown, 162 Wn.2d 422, 430, 173 P.3d 245 (2007). In addition, the statute does not



                                              3
No. 34055-4-III
State v. Graham


cover a defendant's ill-informed attempt to negotiate an out-of-court settlement with a

victim witness. State v. Jensen, 57 Wn. App. 501, 509-10, 789 P .2d 772 (1990), ajf'd,

116 Wn.2d 466,805 P.2d 806 (1991). In evaluating the meaning of a defendant's

statements, the trier of fact must consider both the inferential and literal meaning of the

words used by the threatening party. State v. Scherck, 9 Wn. App. 792,794,514 P.2d

1393 (1973); State v. Gill, 103 Wn. App. 435,445, 13 P.3d 646 (2000).

       The State's evidence supports the trial court's finding that, in commenting to his

brother that Mr. Maupin needed his face smashed in, Mr. Graham intended to influence

Mr. Maupin's testimony at his upcoming trial. 3 During the recorded phone call, Mr.

Graham did not merely state he wished to harm Mr. Maupin. He made threatening

comments while referencing Mr. Maupin and his girlfriend as "witnesses" to his pending

"[domestic violence] assault charge." Ex. 103 at 6. This context connects Mr. Graham's

assaultive intentions with Mr. Maupin's anticipated testimony thereby permitting an

inference that the threat to Mr. Maupin was motivated, at least in part, by a desire to

influence Mr. Maupin's testimony.




       3  The fact that Mr. Graham's threat was communicated through a third party is no
bar to the State's charge. State v. Ozuna, 184 Wn.2d 238, 247, 359 P.3d 739 (2015) (a
threat is still a threat even if communicated to a third party and not the intended target).

                                              4
     No. 34055-4-III
1    State v. Graham


II                                    APPELLATE COSTS

            In his opening brief, Mr. Graham requests this court decline to award appellate

     costs to the State. Because Mr. Graham has not complied with our general order

     requiring a report of continued indigency, we deny his request at this juncture. If the

     State seeks costs, Mr. Graham may attempt to seek relief under RAP 14.2.

                                          CONCLUSION

           The trial court's judgment of conviction is affirmed.

           A majority of the panel has determined this opinion will not be printed in the

     Washington Appellate Reports, but it will be filed for public record pursuant to RCW

     2.06.040.




                                               Pennell, J.
     WE CONCUR:




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