### FILED MAY 21, 2015 In the Office orthe ClerkorCourt W A StateCourtorAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 32566-1-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) DAVID LYLEGILMAN, ) ) Appellant. ) KORSMO, 

### J.

- David Lyle Gilman asked FrankieLariozto appear at a court hearing andlie onhis behalf. Mr. Larioz refused to do so. Ajury subsequently found Mr. Gilman guilty oftamperingwith a witness. RCW 9A.72.120. He appeals, contending the evidence was insufficientto supportthe convictionbecausethe State failed toprove the essential elementthatMr. Gilman hadreason tobelieve thatMr. Lariozwouldbecalled as a witness in an official proceeding. We find the evidence sufficientto support a finding ofguilt and affirm. FACTS Moses Lake Police Officers Kohl St. Peter and ScottEntresponded to a report ofa possible assault at the apartment ofRachelleThomas on November26,2013. TheyNo. 32566-1-III State v. Gilman
entered the home and saw Ms. Thomas, two children, and a man who identifiedhimself
as David Gilman. A few days later, while reviewing police reports filed by the two officers, Moses Lake Police Sergeant Mike Williams, who had been investigating Mr. Gilman on an unrelated case, noticed Mr. Gilman's name in the police reports. After additional investigation, Sergeant Williams discovered apretrial release orderprohibiting Mr. Gilman from having contact with Ms. Thomas or her daughter. The State subsequently askedthetrial courtto reconsider Mr. Gilman's conditions ofrelease. On January 22, 2014, the court held a hearing to determine whether Mr. Gilman had violated the terms ofhis conditional release. Ms. Thomas testified that Mr. Gilman
was not in her apartment on November 26, 20l3, but rather a man she identified as "Frankie Lazar." Report ofProceedings (RP) at 108. The next day, Sergeant Williams and Officer Ent contacted Mr. Larioz. Sergeant Williams photographed the contents of Facebook instant messages between Mr. Larioz and Mr. Gilman. The State chargedMr. Gilman with one count ofwitness tampering. At trial, officers Ent and St. Peter identifiedMr. Gilman as the person they saw in Ms. Thomas' apartment in November 20l3. Mr. Larioztestified thatMr. Gilman repeatedly approached him and asked him to stand in front ofajudge and testifY that he, not Mr. Gilman, was Ms. Thomas' Novembervisitor. He stated that on one such occasion, Ms.
2No. 32566-I-II1 State v. Gilman
ThomasjoinedMr. Gilman and that they asked him "to stand in front ofthejudge and say something where I was when I wasn't. And I told them that I hadjust got out ofprison, that I'mnot willing to go back and lie in front ofajudge for your faults." RP at 186. Mr. Larioz also identified the contents ofimages on his phone as communications between himselfand Mr. Gilman. The photographs show that on January 18,2014, Mr. Gilman asked Mr. Larioz to testify on his behalf, to which Mr. Larioz responded: Look dude you told the police officeryour first and last name I don't feel like lying to ajudgewhen he asked me that question why did you tell the police officer your name is David Gilman you know what I mean I can get charged for lying to ajudge and I'm not trying to do that. Exhibit 2 at 33-34. Mr. Larioz also testified that after being informed thatpolice had been to Mr. Larioz's house, Mr. Gilman deleted Mr. Larioz from his Facebook account. After the State rested its case-in-chief, Mr. Gilman moved to dismiss for insufficiency ofthe evidence. Specifically, he argued that he had not tampered with a witness as contemplated by RCW 9A.72.120 because Mr. Larioz had not been subpoenaedby the State or been named in a witness list. He also argued that although he asked Mr. Larioz to testify for him, he never expected him to do so because Mr. Larioz had consistently refused to lie in court for him. The court denied the motion. Thejury found Mr. Gilman guilty as charged. 3No. 32566-1-111 

### State v. 

### Gilman
ANALYSIS Mr. Gilman challenges his witness tampering conviction, contending the State failed to presentevidencethathe hadreason to believethe State would call Mr. Larioz as
a witness. In support ofhis position, he points to the State's failure to subpoenaMr. Larioz and Mr. Larioz's emphatic rejection ofMr. Gilman's request to testify falsely on his behalf. The Fourteenth Amendment Due Process Clauserequires the State to prove all essential elements ofa charged crime beyond a reasonable doubt. U.S. CONST. amend. XIV, § 1; 

### In re Winship, 397U.S. 358, 364,90 S. Ct. 1068,25 

### L. Ed. 2d 368 (1970). Evidence is sufficientto support a guilty finding if, afterviewingthe evidence in the light most favorable to the State, any rational trier offact could have found the crime's essential elements beyond a reasonable doubt. 

### State v. 

### Green, 94 Wn.2d 216,221,616 P.2d 628 (1980). 

### An evidence sufficiency challenge "admits the truth ofthe State's evidence and all inferences that reasonably can be drawn therefrom." 

### State v. 

### Salinas, 119 Wn.2d 192,201,829P.2d 1068 (1992). We defer to thejury's assessment ofwitness credibility and evidence weight orpersuasiveness. 

### State v. 

### Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989).



### 4No. 32566-1-111 State 

### v. Gilman
The witness tampering statute states in relevantpart: A person is guilty oftamperingwith a witness ifhe 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
...to: (a) Testify falsely or, ... withhold any testimony. RCW9A.72.120(1)(a). Contrary to Mr. Gilman's argument, the witness tampering statute does not require the State to subpoenathe tamperedperson orotherwise notify a defendant who it intends to call. 

### In construing a former version ofthe witness-tampering statute, our State Supreme Courtheld: "The offense is committedby endeavoringto prevent anyperson, whether subpoenaed as a witness ornot, from appearing and giving evidence." State v. Bringgold, 40 Wash. 12, 19-20, 82 P. 132 (1905), overruledon othergrounds byState v. Henshaw, 61 Wash. 390, 112 P. 379 (1910). Thus, while a subpoena or witness list would establish that the State intended to call a particularperson to testify, such evidence is not necessary. Our Supreme Courthas observed:**~~It** is difficult to conceive ofa situation in which an accused person might approach a person to absenthimselffrom proceedings or change his testimony without at the same time being aware that he was a witness or at least havingreason to believe that he was about to be called as such." State
v. Stroh, 91 Wn.2d 580,586,588 P.2d 1182 (1979). UnderStroh, all that is required is a
5No. 32566-1-II1 State v. Gilman showing that the accused had reason to believe the person is orprobably is about to be called as a witness. Stroh, 91 Wn.2d at 583. Mr. Gilman's second argument also fails. RCW 9A.72.120 does not criminalize a defendant's actions only ifhe believed he successfully induced a person to testify falsely. The statute only criminalizes an "attemptto induce" a witness to testify falsely at any official proceeding. State v. Williamson, 131 Wn. App. 1, 6, 86 P.3d 1221 (2004). We hold that sufficient evidence establishes that Mr. Gilman had reason to believe Mr. Larioz would be called as a witness. Mr. Gilman asked Mr. Larioz to stand in front ofajudge and lie to the court. Even though Mr. Larioz rejected Mr. Gilman's request, the evidence shows that at the moment ofinducement, Mr. Gilman had reason to believe that Mr. Larioz would testify at an official proceeding. Moreover, Mr. Gilman's attempt to cover the crime by deleting Mr. Larioz from his Facebook account supports an inference that Mr. Gilman recognized that Mr. Larioz would be called to testify. By conspiring with Ms. Thomas to lie, Mr. Gilman had reason to believe the State would investigate the claim and call Mr. Larioz to testify. Viewed in the light most favorable to the State, the evidence was sufficientto convict Mr. Gilman ofthe charge oftampering with a witness. Affirmed.

6No. 32566-I-III State 

### v. Gilman
A majority ofthepanelhas determinedthis opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

# ~mo,J. WE CONCUR:

Brown, 

### J.

7