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# l FILED APRIL 27, 

### 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, V. 

### JUSTIN RYAN GRAHAM, Appellant. ) ) ) ) ) ) ) ) ) 

### No. 34055-4-111

UNPUBLISHED OPINION

PENNELL, J.

- Justin Graham was convicted ofone count ofintimidating a witness underRCW 9A.72.110(1 )(a). He appeals, arguingthe evidence is insufficientto supporthis convictionbecausethere is no evidence he intended to influence the witnesses' testimony. We affirm. FACTS1 OnJune 28, 2015, Justin Graham's neighbors observedhim assaulting his girlfriend and calledthe police. After law enforcementresponded, Mr. Graham was arrested andtaken to apolice car. Duringthis process, Mr. Graham'sbrother, Brandon

1

### Because Mr. Graham appeals the sufficiency ofthe State's evidence, we construe the facts and inferences therefrom inthe light most favorable to the State. State v. Salinas, 119 Wn.2d 192,201, 829 P.2d 1068 (1992).

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# i 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. 1Verbatim Report ofProceedings (VRP) (Sept. 28, 2015) at 141. Brandon subsequently confronted Mr. Maupin and repeated the
same warning. In either late June or early July, Brandon wentbackto the apartment complex and again confronted Mr. Maupin. This time, Brandon tried to attack Mr. Maupin withbrass knuckles. However, someone alerted Brandonthat he was being recorded. Brandonthen left the scene, threatening Mr. Maupin that he would be back. On July 2, 2015, the Graham brothers participated in a recordedjail call and engaged in the following discussion: JUSTIN GRAHAM: Well Ijusttalked 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, ourwitness saying thatthey fucking, that I, uh, they, they said all kinds ofshit on my shit dude. They need to gettheir faces smashed in, both them. BRANDON GRAHAM: Yeah, I tried to run em over and fucking hop outthe car and breakhis face, last night when there was I saw I was on camera so I had to take off, came back next morning, hadhim hemmed up, got my mother fucking (INAUDIBLE) but I need to get him offcamera.

2For ease ofreference, Brandon Graham is referred to by his first name. 2No. 34055-4-III State v. Graham
JUSTIN GRAHAM: I know. Um, yeah, cause they, uh, and then I wentto court and they're saying that Don, Donwentthere sayingthat I did all kinds ofshit to [ my girlfriend] and all bunch ofweird ofshit. Buthey I was told that, uh, somebody in here told me that ifyouputmoney 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, Brandonreturned to Mr. Maupin's apartment complex. He assaulted one ofMr. Maupin's associates and thenturned onMr. Maupin and punchedhim in the face. Brandon told Mr. Maupin, "This is for snitching on my brother." 1VRP (Sept. 28, 2015) at 149. Justin Graham was charged with one count ofintimidating 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 ofintimidating a witness ifa person, by use ofa threat against a current orprospective witness, attempts to influence the testimony ofsaid witness. RCW 9A.72.110(l)(a). The nature ofthe threat contemplated bythe witness intimidation statute is very specific. 

### It is not enoughthat the threat was made in an attemptto 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
3No. 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 ofa defendant's statements, the trier offact must consider both the inferential and literal meaning ofthe 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 brotherthat Mr. Maupin needed his face smashed in, Mr. Graham intendedto influence Mr. Maupin's testimony at his upcoming trial. 3 During the recordedphone 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 barto the State's charge. 

### State v. 

### Ozuna, 184 Wn.2d 238, 247, 359 P.3d 739 (2015) (a threat is still a threat even ifcommunicated to a third party and not the intendedtarget). 4

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# I I No. 34055-4-III State v. Graham


### 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 ofcontinued indigency, we deny his request at thisjuncture. Ifthe State seeks costs, Mr. Graham may attempt to seekreliefunder RAP 14.2. 

### CONCLUSION The trial court'sjudgmentofconviction is affirmed. A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

Pennell, 

### J. WE CONCUR:

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