1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 47215

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.

EMILIE MARIE BARKER ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) Filed: November 17, 2020
Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John T. Mitchell , District Judge.
Judgment of conviction for conspiracy to prepare false evidence and for conspiracy to intimidate a witness, affirmed

. Eric D. Fredericksen, State Appellate Public Defender; Jason C. Pintler , Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jo hn C. McKinney , Deputy Attorney General, Boise, for respondent.

________________________________________________ BRAILSFORD, Judge A jury convicted Emilie Marie Barker of destruction of evidence, Idaho Code § 18

- 2603; conspiracy to prepare false evidence
, I .C. §§ 18

- 1701, 18

- 2602; and conspiracy to intimidate a
witness
, I.C. §§ 18

- 1701, 18

- 2604 (3)

. On appeal, Barker challenges the co nvictions for conspiracy to intimidate a witness and conspiracy to prepare false evidence. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND The State presented evidence of the following facts at trial. In Oc tober 2018, Barker and
her five

- year

- old daughter, B.B., lived with Barker’ s fiancé , Corey McGrath
, and McGrath’s
mother , Sherri Wastweet , at Wastweet ’s residence in Coeur d’Alene

. Meanwhile, Barker’s2 twelve

- year

- old daughter, L.N., lived with Barker’s mother, Silvia , in Rathdrum . L.N. , however, stayed with Barker at the Wastweet residence on weekends. After B.B. tested positive for gonorrhea, l aw enforcement placed B.B. in shelter care with the Idaho Department of Health and Welfare (Department) , and the Department informed Si l via
that L.N. could not return to the Wastweet residence due to safety concerns

. A forensic child
examiner (examiner) interviewed B.B., and based on B.B.’s disclosures, McGrath was arrested and charged with lewd conduct with a minor under sixtee n

. After McGrath’ s arrest, law enforcement discovered numerous child pornography search results on his cell phone.
A lso a fter McGrath’s arrest , the examiner interviewed L.N. twice. Following L.N.’s second interview, McGrath was arrested again and charged with a second count of lewd conduct. Despite the pending charges against McGrath , Barker continued her relationship with McGrath
and continued living with him at the Wastweet residence

. 1 Based on the Department’s concern that Barker was unable to protect the children, a no

- contact order was issued in B.B.’s child protective case
, precluding Barker from contacting the children with out the Department’s approval. Thereafter, in late November, both children testified at McGrath’s preliminary hearing

. 2
L.N. testified that she met McGrath on Christmas 2014; the day after, he started touching her “private areas,” which she identified as her breasts and vagina; and she could not “count how many times” he touched her but that “it happened normally every weekend.” The magistrat e court found sufficient evidence to believe McGrath was guilty of the charges and bound him

over to the district court.
I n December 2018, Barker contacted a Department social worker and admitted that she
continued her relationship with McGrath and that sh e had recently been with L.N. at Silvia’s
residence despite the no

- contact order . Further, Barker told the social worker L.N. wanted to “make a recanting statement.” As a result of Barker ’s and Silvia’s inability to comply with the

no

- contact order, L.N. was placed in shelter care

.

1 McGrath bonded out of jail after both of his arrests and returned to live in the Wastweet residence.

2 L.N.’s preliminary hearing testimony in McGrath’s case was also presented to the jury in this case.3 Additionally, t he examiner interviewed L.N. a third time after law enforcement was “advised [L.N.] was being told by [Barker] to recant her testimony.” At trial, the social worker
testified that, during L.N. ’s third interview, L.N. disclosed that Barker came to Silvia’s house
, wrote a statement recanting L.N.’s testimony
, and had her read the statement to Wastweet over the phone. Specifically, the social worker testified:
So a conversation that had occurred with [L.N.] where she had indicated that [Barker] came to [Silvia’s house] and had required

-- had written out a letter that she was to read to [ Wastweet ] over the phone stating that what she had made up was a lie. She had disclosed that [Barker]

-- that if s he didn’t do this, that [Barker] was going to kill herself, [McGrath] was going to go to prison, and that he would kill himself. She also reported that if she did this, that the department, specifically myself, would return [B.B.] to the home, and so she called [Wastweet] and read this written

- out statement, and then indicated that after the phone call, [Barker] went out to the back porch and burned the note. The State presented evidence that these events occurred on December 3. A fter the
examiner intervi ewed L.N. about these events, Officer Sudol arrested both Barker and Wastweet
at the Wastweet residence. The State charged Barker with destruction of evidence and conspiring with Wastweet to intimidate L.N. to recant her testimony and to record her false statement. Barker proceeded to trial. At trial, Officer Sudol testified that while he was handcuffing Wastweet
, she “went from
kind of

. . . confused to like an excited nervous
, ” and that without prompting, she stated that “ a ll
I did was record a l ittle girl.” Further, Officer Sudol testified that when he interviewed
Wastweet , she played for him “directly off her phone” the recording of L.N. reading the

statement recanting her testimony

. Officer Sudol also testified at trial about his interview of Barker after her arrest

. According to Officer Sudol, Barker admitted that she asked Wastweet to put a recording application on Wastweet’s cellphone to record L.N. recanting her testimony; Barker had
McGrath drive he r to Silvia’s residenc e where L.N. was a lone while Silvia was at work; Barker

wrote a statement recanting L.N.’s testimony and told her to call Wastweet and to read the

statement to her ; Barker told L.N. that she needed to say she lied if she did not want to be taken away from Barker and that if L.N. did not say she lied, McGrath would go to prison and kill himself; and then after L.N. read the statement to Wastweet, Barker burned it

. In addition to Officer Sudol’s testimony, the State also admitted a videotape of his interview of Barker.4 Finally, Officer Sudo l testified at trial about extracting data from the cellphones of McGrath, Wastweet, and L.N. During this testimony, the State admitted numerous exhibits showing communications on Wastweet’s and L.N.’ s cellphones , including communicat ions on the date of the recording, December 3
, and the following days leading up to Barker disclosing to the social worker that L.N. wanted to recant her testimony. Additionally, the State played the recording Wastweet made of L.N. reading the statement B arker wrote and admitted a transcript of the recording in evidence. Wastweet did not testify at Barker’s trial. Regardless, a s stated above, the jury convicted
Barker of des truction of evidence and of conspiring with Wastweet to prepare false evidence an d
to intimidate a witness. The district court sentenced Barker to five years with three years fixed for conspiracy to prepare false evidence and consecutive terms of five years indeterminate for conspiracy to intimidate a witness and for destruction of ev idence. Barker filed a motion under
Idaho Criminal Rule 35 for a reduction of her sentence s , which the district court denied. Barker timely appeals only the conviction s for conspiracy to prepare false evidence and to intimidate a
witness

. 3

II.
ANALYSIS Barker challenges the sufficiency of the evidence supporting her convictions for conspiracy to prepare false evidence and conspiracy to intimidate a witness. Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt will not be overturned on appeal where there is substantial evidence upon which a reasonable trier of fact could have found that the prosecution sustained its burden of proving the essential elements of a crime beyond a
reasonable doubt. State v. Herrera

- Brito , 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson , 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991). We will not substitute our view for that of the trier of fact as to the credibility of the witnesses, the wei ght to be given to the testimony, and the reasonable inferences to be drawn from the evidence.
Knutson , 121 Idaho at 104, 822 P.2d at 1001; State v. Decker , 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light most favorable to the prosecution. Herrera

- Brito , 131 Idaho at 385, 957 P.2d at 1101; Knutson , 121 Idaho at 104, 822
P.2d at 1001. “The relevant inquiry is not whether this Court would find the defendant to be

3 Barker does not appeal her conviction for destruction of evidence, I.C. § 18

- 2603.5 guilty beyond a reasonable doubt, but whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Adamcik , 152 Idaho 445, 460, 272 P.3d 417, 432 (20 12) (internal quotations and citation omitted).
S ubstantial evidence may exist even when the evidence presented is solely circumstantial
or when ther e is conflicting evidence. State v. Severson , 147 Idaho 694, 712, 215 P.3d 414, 432 (2009); State v. Steve ns , 93 Idaho 48, 50

- 5 1, 454 P.2d 945, 947

- 48 (1969). In fact, even when circumstantial evidence could be interpreted consistently with a finding of innocence, it will be sufficient to uphold a guilty verdict when it also gives rise to reasonable inference s of guilt.
Severson , 147 Idaho at 712, 215 P.3d at 432; State v. Slawson , 124 Idaho 753, 757, 864 P.2d 199, 203 (Ct. App. 1993)

. To prove a conspiracy, the State had to prove
, beyond a reasonable doubt
, an agreement between two or more individuals to acc omplish an illegal objective, coupled with one or more overt acts in the furtherance of the illegal purpose accompanied by the requisite intent to commit
the u nderlying substantive offense. State v. Goggin , 157 Idaho 1, 12

- 13, 333 P.3d 112, 123

- 24 (2014) ; State v. Garcia , 102 Idaho 378 , 384, 630 P.2d 665, 671 (1981) ; see also I.C. § 18

- 1701 (defining criminal conspiracy). “ An agreement that is the foundation of a conspiracy charge need not be formal or express, and the evidence of the agreement need not b e direct.” State v.
Tankovich , 155 Idaho 221, 226, 307 P.3d 1247, 1252 (Ct. App. 2013). “Rather, the agreement may be inferred from the circumstances and proven by circumstantial evidence.” Id. Also, “ t he
motive of one co

- conspirator is probative, thou gh not necessarily conclusive, to prove the intent
of another co

- conspirator.” Id. The alleged conspiracy’s illegal objectives at issue in this case are intimidating a witness,

see I.C. § 18

- 2604(3) (setting forth elements of crime), 4 and preparing false evidence, see

4 Idaho Code § 18

- 2604 (3) provides: Any person who, by direct or indirect force, or by any threats to person or property, or by any manner willfully intimidates, influences, impedes, deters, threatens, harasses, obstructs or prevents, a witness, including a child witness, or any person who may be called as a witness or any person he believes may be called as a witness in any criminal proceeding or juv enile evidentiary hearing from testifying freely, fully and truthfully in that criminal proceeding or juvenile evidentiary hearing is guilty of a felony.6 I.C. § 18

- 2602 (setting forth elements of crime). 5 Barker asserts a necessary element of both of
these crimes is knowledge of falsity ; i.e., the conspirators must have know n the prepared
evidence wa s false
, and they must have intend ed to prevent the witness from testifying truthfully. Accordingly, Barker argues the State was required to prove that both Barker and Wastweet “knew [L.N.’s] recantation was false when they made the recording

. ” Barker concedes “the State pres ented sufficient

. . . evidence [Barker] cajoled L.N. into recording a false statement,”
but she contends “the State failed to present any evidence [Wastweet] knew L.N.’s recantation
was false.” As a result, Barker contends the State failed to prove a con spiracy between
Wastweet and Barker occurred. The State agrees that “if Wastweet did not know that L.N.’s recantation was false, she
could not have been a co

- conspirator because she would not be agreeing to commit either of the two underlying crimes, each of which requires . . . intent or knowledge.” The State argues
, however, that it presented sufficient evidence that the jury could find beyond a reasonable doubt
Wastweet knew that: (1) “ the recorded recantation by L.N. was false, ” and (2) “ L.N. was
inti midated, influenced, threatened or harassed to prevent her from testifying truthfully against
McGrath.” We agree with the State. A reasonable trier of fact could have found from the evidence
and inferences that Wastweet knew that L.N.’s recanting statement was false and that she was being intimidated to testify falsely. A review of that evidence shows that Barker instructed
Wastweet to install a recording applicat i on on her cellphone to record L.N. recanting he r testimony . On the evening of the recording, December 3, Wastweet’s personal contact
informat ion was added to L.N.’s cellphone for the first time a bout twenty minutes before L.N.
call ed Wastweet and read the statement Barker wrote. Wastweet record ed L.N .’s statement on
Wastweet’s cellphone, indicating she agreed to install a recording application on her phone per
Barker’s earlier instruction. In the recording, Wastweet repeatedly instruct ed L.N. not to talk to
the social worker assigned to protect L.N.; to contact McGrath’s attorney; and to write down

5 Idaho Code § 18

- 2602 provides: Every person guilty of preparing any false or antedated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced, for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding or inquiry whatever, authorized by law, is guilty of fe lony.7 L.N.’s recanted statement. T hen, t he next morning, Barker text ed Wastweet and ask ed
, “ P lease send the phone call to me either through txt [sic] or email.” A few days later on December 6, Wastweet exchanged numerous text messages with L.N. late in the evening beginning about 10 p.m. In those texts, Wastweet ask ed L .N. to call McGrath’s attorney and to tell the attorney “what you told me ” ; provide d L.N. the telephone
number of “the investigator trying to he l p” McGrath; and instruct ed L.N. to call him “[t] omorrow.” Additionally, on the following morning at about 7:30 a.m., L.N. create d a “note”
on her cell phone of a text message which stated
, “M ake sure you get ahold of [the investigator] and make your statement and delete all of our phone calls and messages.” Although Officer
Sudol was unable to determine who sen t this message to L.N., the jury could have reasonably
inferred that Wastweet sent the message based on its timing and content. Then, upon
Wa stweet’s arrest , she exclaimed that “all I did was record a little girl,” suggesting she understood the nature of her crime before being advised of the reason for her arrest. Viewing all of this evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Wastweet agreed to conspire with Barker to intimidate L.N. into making a false statement for purposes of recanting her prior testimony. The cumulative effect of the State’s evidence wa s more than adequate to establish a conspiracy between Wastweet and Barker. This evidence included Barker and Wastweet’s joint preparation to record L.N. recanting her testimony ; W astweet’s statements to L.N. on the recording ; her subsequent text message s ; her possession of the recording on her cellphone; the continued close association between Wastweet and Barker, including that Barker remained living at the Wastweet residence after McGrath’s charges; and Wastweet and Barker’ s shared motive of protecting McGrath. We disagree with Barker’s assertion that “there was simply no evidence presented to the jury that [Wastweet ] knew that L.N.’s recantation was false.” Although the State’s evidence was not direct, the State presented ample circumstantial evidenc e giving rise to a reasonable inference Wastweet knew that L.N.’s recanting statement was false and that she and Barker were intimidating L.N. into making the false statement. C ircumstantial evidence is sufficient to uphold a guilty verdict if it gives ri se to a reasonable inference of guilt
, even if that evidence could also give rise to a finding of innocence. State v. Adbullah , 158 Idaho 386, 430, 348 P.3d 1,8 45 (2015). Accordingly, we hold that substantial, competent evidence supports Barker’s
convict ion s for conspiracy to prepare false evidence and conspiracy to intimidate a witness.
III.
CONCLUSION Substantial and competent evidence supports the jury’s verdict finding Barker guilty of conspiring with Wastweet to prepare false evidence and to intimidate a witness. Accordingly,
the judgment of conviction for conspiracy to prepare false evidence and for conspiracy to
intimate a witness is affirmed

. Chief Judge HUSKEY and Judge GRATTON CONCUR

.