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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 47215

STATE OF IDAHO,

Plaintiff-Respondent,

v.

EMILIE MARIE BARKER,

Defendant-Appellant.

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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THIS IS AN UNPUBLISHED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; John 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 convictions 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 October 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’s 
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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, law enforcement placed B.B. in shelter care with 

the Idaho Department of Health and Welfare (Department), and the Department informed Silvia 

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 sixteen. After McGrath’s arrest, law 

enforcement discovered numerous child pornography search results on his cellphone.

Also after 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.

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 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 without the Department’s 

approval.

Thereafter, in late November, both children testified at McGrath’s preliminary hearing.

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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 magistrate 

court found sufficient evidence to believe McGrath was guilty of the charges and bound him 

over to the district court.

In December 2018, Barker contacted a Department social worker and admitted that she 

continued her relationship with McGrath and that she 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.
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Additionally, the 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 she 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. After the 

examiner interviewed 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 “all 

I did was record a little 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 her to Silvia’s residence where L.N. was alone 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.
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Finally, Officer Sudol 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 communications 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 Barker wrote and admitted a transcript 

of the recording in evidence.

Wastweet did not testify at Barker’s trial. Regardless, as stated above, the jury convicted 

Barker of destruction of evidence and of conspiring with Wastweet to prepare false evidence and 

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 evidence. Barker filed a motion under 

Idaho Criminal Rule 35 for a reduction of her sentences, which the district court denied. Barker 

timely appeals only the convictions for conspiracy to prepare false evidence and to intimidate a 

witness.

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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 weight 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. 
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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 

(2012) (internal quotations and citation omitted).

Substantial evidence may exist even when the evidence presented is solely circumstantial 

or when there is conflicting evidence. State v. Severson, 147 Idaho 694, 712, 215 P.3d 414, 432 

(2009); State v. Stevens, 93 Idaho 48, 50-51, 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 inferences 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 accomplish 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 underlying 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 be 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, “the 

motive of one co-conspirator is probative, though 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 

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 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 juvenile evidentiary hearing 

from testifying freely, fully and truthfully in that criminal proceeding or juvenile 

evidentiary hearing is guilty of a felony.
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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 known the prepared 

evidence was false, and they must have intended 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 presented 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 conspiracy 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 

intimidated, 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 application on her cellphone to record L.N. recanting her 

testimony. On the evening of the recording, December 3, Wastweet’s personal contact 

information was added to L.N.’s cellphone for the first time about twenty minutes before L.N. 

called Wastweet and read the statement Barker wrote. Wastweet recorded 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 instructed 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 felony.
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L.N.’s recanted statement. Then, the next morning, Barker texted Wastweet and asked, “Please 

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 asked L.N. to call 

McGrath’s attorney and to tell the attorney “what you told me”; provided L.N. the telephone 

number of “the investigator trying to help” McGrath; and instructed L.N. to call him 

“[t]omorrow.” Additionally, on the following morning at about 7:30 a.m., L.N. created a “note” 

on her cellphone of a text message which stated, “Make 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 sent this message to L.N., the jury could have reasonably 

inferred that Wastweet sent the message based on its timing and content. Then, upon 

Wastweet’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 was 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; Wastweet’s statements to L.N. on the 

recording; her subsequent text messages; 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 evidence 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. Circumstantial evidence is sufficient to 

uphold a guilty verdict if it gives rise 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, 
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45 (2015). Accordingly, we hold that substantial, competent evidence supports Barker’s 

convictions 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.