State Of Washington, Respondent V James S. Hurley Iii, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
JAMES STEPHEN HURLEY, I
Appellant.
No. 72545-9-1
DIVISION ONE
UNPUBLISHED OPINION
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 himselfor 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 I seen 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 or three 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 of inducement 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 of words 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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