IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                        No. 72545-9-1
                     Respondent,
                                                        DIVISION ONE

                                                        UNPUBLISHED OPINION
JAMES STEPHEN HURLEY, I

                     Appellant.                         FILED: February 29, 2016


      Appelwick, J. — Hurley was convicted of witness tampering based on

recorded jail calls between him and a witness.       Hurley appeals, arguing the

evidence was insufficient to sustain his conviction. We affirm.

                                     FACTS


       On December 30, 2013, Nicole Guevarra called 911 from a pay phone to

report a domesticviolence incident. Guevarra informed the 911 operators that she

was from Spokane. She had traveled to Seattle with her husband, James Hurley,

in his semi-truck so that he could make a delivery. Guevarra told the 911 operator

that Hurley was " 'kicking the crap' " out of her in his truck. Guevarra had bitten

Hurley and was able to get away.

       When police officers located Guevarra, she was crying and out of breath.

Guevarra had visible facial injuries and red marks on her neck. Officers also
No. 72545-9/2




located Hurley. Hurley had injuries on his arm and back consistent with bite marks.

Officers arrested Hurley. On December 31, 2013, the court issued a domestic

violence no-contact order, preventing Hurley from contacting Guevarra.          On

January 2, 2014, Hurley was charged with assault in the second degree, felony

harassment - domestic violence, and unlawful imprisonment.

      Between January 5 and January 13, 2014, Hurley called Guevarra several

times from jail. The calls were recorded by the King County Jail's recording

system. Based on these recorded calls, the State charged Hurley with tampering

with a witness.1 Thejuryfound Hurley guilty of witness tampering. Hurleyappeals.

                                  DISCUSSION


       Hurleyargues that this court must reverse his witness tampering conviction

for lack of evidence. The standard of review on a challenge to the sufficiency of

evidence is whether, after viewing the evidence in a light most favorable to the

State, any rational trier of fact could have found the essential elements of the

charged crime beyond a reasonable doubt. State v. Sanders, 66 Wn. App. 878,

889, 833 P.2d 452 (1992).

       On appeal, we draw all reasonable inferences from the evidence in favor of

the State and interpret them most strongly against the defendant.         State v.

Andrews, 172 Wn. App. 703, 706-07, 293 P.3d 1203 (2013). In determining

whether the necessary quantum of proof exists, the reviewing court need not be

convinced of the defendant's guilt beyond a reasonable doubt, but only that


       1 The State also added charges for several misdemeanor violations of the
no-contact order.
No. 72545-9/3




substantial evidence supports the State's case. State v. Fiser, 99 Wn. App. 714,

718-19, 995 P.2d 107(2000).

       RCW 9A.72.120 outlines the elements of witness tampering:

       (1) A person is guilty of tampering with a witness if he or she
       attempts to induce a witness or person he or she has reason to
       believe is about to be called as a witness in any official proceeding
       or a person whom he or she has reason to believe may have
       information relevant to a criminal investigation or the abuse or
       neglect of a minor child to:

              (a) Testify falsely or, without right or privilege to do so, to
       withhold any testimony; or

              (2) Absent himself or herself from such proceedings; or

              (3) Withhold from a law enforcement agency information
       which he or she has relevant to a criminal investigation or the abuse
       or neglect of a minor child to the agency.
       Neither Guevarra nor Hurley testified at trial. Therefore, the State relied on

only the recorded phone calls between Hurley and Guevarra as the evidence to
support Hurley's witness tampering conviction. At trial, the jury was provided with
a transcript of recorded phone calls between Hurley and Guevarra from January
5, 6, 8, and 13, 2014. And, excerpts of the recorded phone calls were played for

the jury.

        During closing argument, the State played excerpts of the calls again and
highlighted portions of the calls for the jury. First, the State relied on the following
excerpt:

        HURLEY:         Anyway, though so.            So yeah, you gonna
                         (unintelligible). What are you gonna tell her that she
                         recommends—because one of the reasons that
                         they kept me here is 'cause they're sayin' that you
No. 72545-9/4


                      know that uh that you were worried about me gettin'
                      out. You know what I mean?

      [GUEVARRA]: Yeah.

     HURLEY:          So. You know. I mean hopefully, that's not a
                      problem no more, right?

      [GUEVARRA]: No.

      HURLEY:         You know hopefully that could be expressed to
                      the ... .


      [GUEVARRA]: Yeah, it will be.

The State cited to this excerpt as an example of Hurley trying to influence what

Guevarra says. Then, the State referenced the following excerpts:

      HURLEY:        Just get me out of here.

      [GUEVARRA]: I'm not getting' out. I'm just—I'm tryin to get it—

      HURLEY:         (Unintelligible).

      [GUEVARRA]: through you head—

      HURLEY:         Get me out of here.

      [GUEVARRA]: Huh?

      HURLEY:         Get me out of here.

      [GUEVARRA]: I can't. I can just send that-l can just send that stuff
                     to the advocate, and you know not go to court.

       HURLEY:       (Unintelligible).

       UNKNOWN:      (Unintelligible).

       HURLEY:       I love you—


       [GUEVARRA]: They want to nail you. I was like—I was—I was so
                      floored when Iseen what your—when they took—she
No. 72545-9/5



                       told me what your charges were. I was like what the
                       fuck.


     HURLEY:           Yeah, I know. That's what I'm sayin'. Well they're
                       sayin' because that you know—you know—they're
                       sayin' 'cause I—I guess because I uh so you're sayin'
                       that I fuckin' held you hostage in the truck and
                       wouldn't let you out. You know what I mean.

      [GUEVARRA]: Well I did, and I said I tried to get out like five times,
                  but you didn't want me out of the truck because the
                  guy that you worked with.

      HURLEY:          Well maybe (unintelligible) maybe you could just
                       exaggerating that many. You know what I'm sayin'.
                       (Unintelligible).

      [GUEVARRA]: No, it was four or five. I remember clearly.

      HURLEY:           No, you—you're not listenin' to what I'm sayin'.

      [GUEVARRA]: Uh, huh.

      HURLEY:          You know what I mean.

      OPERATOR: You have one minute—

       HURLEY:         You know.

       OPERATOR: remaining.

       HURLEY:         I mean if you want me out, maybe you know. It don't
                       matter. Whatever happens, happens, I love you okay.

       [GUEVARRA]: I love you too.

       HURLEY:         Get me the fuck out of here okay. If you can. If you
                       can't, you can't, whatever. You know what I mean.
The State noted that these were examples of Hurley trying to get Guevarra to

change her statement or not go to court. Finally, the State referenced a portion of
one additional call:

       HURLEY:         Yeah. Hey I love you (unintelligible).
No. 72545-9/6




      [GUEVARRA]: I love you too.

      HURLEY:         Sorry about all this.

      [GUEVARRA]: Me too.

      HURLEY:         Okay, You know what I'm sayin'? So you know—you
                      know.     I mean worse comes to worst—I mean if
                      they—you know how to do this. We—we've done it
                      before.

      [GUEVARRA]: Yeah.

      HURLEY:         But this time—hey listen—this time, I'll—I'll go get on
                      some medication when I get out okay.

      [GUEVARRA]: Yeah.

       HURLEY:         I promise.

In addition, in closing argument, the State noted that Hurley expresses love during

the calls multiple times, apologizes several times, and promises to get help for his

problems. The State noted thatthese were all ways Hurley attempted to influence
Guevarra into not testifying or changing her story.

       Hurley argues that the evidence is insufficient, because it does not show
that he ever asked Guevarra to testify falsely, withhold evidence, or absent herself

from proceedings. Hurley asserts that although the evidence indicates that he
wanted out of jail and wanted Guevarra to do what she could to make it happen,
the evidence does not establish witness tampering.          Hurley claims that the

evidence in his case is like the evidence deemed insufficient in State v. Rem pel,

114Wn.2d77, 785 P.2d 1134(1990).

       Rempel, who was charged with rape, called the alleged victim witness
several times from jail. Id at 81-82. The witness accepted only two orthree of his


                                              6
No. 72545-9/7




collect calls. Id at 81. The witness's testimony about the substance of the phone

calls constituted all of the evidence the State used to prove witness tampering at

trial. Id. The witness testified that Rempel said that he was sorry, that he would

never do it again, and that she was going to ruin his life. jd. She also testified that

Rempel asked her to drop the charges, jd. The witness testified that Rempel said

basically the same thing in each phone call. Id. at 82.

       After he was convicted of witness tampering, Rempel appealed, challenging

the sufficiency of the evidence, jd. at 79. The Rempel court noted that the sum of

the defendant's attempts were an apology, a statement that "it" was going to ruin

his life, and a request that the witness drop the charges. ]d at 83. The court

concluded that Rempel's literal words contained no express threat nor any promise

of reward. Id. The court continued, stating that an attempt to induce a witness to

withhold testimony does not depend upon only the literal meaning of the words

used. Id Rather, the State is entitled to rely also on the inferential meaning of the

words and the context in which they were used. ]d at 83-84. But, the Rempel

court reasoned that the entire context negated any inference that the request to

drop the charge was an inducement to withhold testimony from a later trial. Id at
84. The court noted that the witness testified that the calls did not concern her and

that she did not worry about them—testimony relevant to disproving the State's
claim that the context of the words spoken showed an attempt to induce the

witness to withhold testimony. ]d The Rempel court concluded that the evidence

was insufficient. See id. at 83.
No. 72545-9/8




      In so holding, the Rempel court distinguished Rempel's case from cases in

which the courts found sufficient evidence: State v. Stroh, 91 Wn.2d 580, 582, 588

P.2d 1182 (1979) (defendant asked the witness not to appear at an administrative

hearing or alternatively change his testimony) and State v. Winqard, 92 Wash. 219,

221, 158 P. 725 (1916) (defendant promised a reward, made a threat, and urged

the witnesses to ignore a subpoena), jd. at 84. Since Rempel, several other

Washington courts have found sufficient evidence to support a conviction for

witness tampering in other factual contexts. See, e.g., State v. Lubers, 81 Wn.

App. 614, 622, 915 P.2d 1157 (1996) (defendant asked a witness who was about

to be called to testify to write a letter recanting information that he had given the

police as a part ofa rape investigation); State v. Whitfield, 132 Wn. App. 878, 897-
98, 134 P.3d 1203 (2006) (defendant attempted to induce witness to give false

testimony by providing witness examples of how to do so).
       Had the phone conversations between Hurley and Guevarra been limited
to Hurley's confirmation that Guevarra no longer wanted him to remain in jail and
his encouragement that she relay that information, we agree that the evidence
would be insufficient under Rempel.       But, other portions of the conversations

between Hurley and Guevarra rise to a level ofinducement not present in Rempel.
Like in Lubers, Stroh, and Whitfield, the conversations between Hurley and

Guevarra demonstrate that Hurley was actively urging Guevarra—someone who

was about to be called as a witness—to change her statement and, therefore,

testify falsely. For instance, Hurley insinuated that Guevarra should change her
account about the struggle in the truck on the night of the incident, despite

                                              8
No. 72545-9/9




Guevarra emphasizing that she knew the facts as she had previously described

them to the police were accurate.

      Moreover, although Hurley never explicitly told Guevarra not to testify, he

was supportive of Guevarra's offer to absent herself from the proceedings and

incentivized her to do so. Hurley asked Guevarra to get him out of jail, and she

responded that she could refrain from going to court. Hurley responded that he

loved her. And, like in Winqard. Hurley later promised Guevarra a reward for her

actions. After telling Guevarra that she "know[s] how to do this," Hurley promised

Guevarra that he would get on medication when he got out of jail.

      Although Hurley's request for Guevarra to change her testimony and

Hurley's inducement for her to absent herself from the proceedings were not

explicit from the words used, the State may rely on the inferential meaning of the
words and the context in which they were used. Rempell, 114 Wn.2d at 83-84.

Considering the inferential meaning ofwords and the context is particularly salient

here, because both Hurley and Guevarra knew that they were being recorded and

needed to use veiled language.

       Moreover, here, the prior relationship between Hurley and Guevarra—an

abuser and a victim of domestic violence—is particularly illustrative to provide

context for the phone conversations. See Rempel. 114 Wn.2d at 84 ("[W]e
consider the entire context in which the words were used, which also includes the

prior relationship between defendant and [the witness], and her reaction to the
phone calls."). In the light most favorable to the State, it is clear from the phone
call transcript that Hurley's abuse was a pattern and that he exercised a certain
No. 72545-9/10




amount of control over Guevarra. Hurley noted that they had been in this situation

before. And, he promised that "this time" he would go on medication when he got

out—implying that there had been previous incidents. At one point, Guevarra

noted that she was not going to be the blame for Hurley's problem any longer,

implying that Hurley has blamed her for his problems in the past. That Guevarra

had remained in a relationship with Hurley and expressed a willingness to help him

get out of jail despite his abusive behavior illustrates that Hurley had a certain

degree of control over her. Their relationship provides context for the calls and

shows Hurley's attempt to control Guevarra yet again. And, unlike the witness in

Rempel. Guevarra did not contradict this by testifying at trial that Hurley's calls had

no effect on her. In fact, Guevarra did not testify at all.

       After viewing the evidence—the content of the recorded jail calls and the

context surrounding those conversations—in the light most favorable to the State,

we hold that the evidence supports Hurley's conviction for witness tampering.

       We affirm.




WE CONCUR:




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