State v. Gray

• Decision Date: 20 June 2011
• Docket Number: No. 2 CA–CR 2010–0235.,2 CA–CR 2010–0235.
• Citation: 227 Ariz. 424,611 Ariz. Adv. Rep. 4,258 P.3d 242
• Parties: The STATE of Arizona, Appellee,v.Ricky GRAY, Appellant.
• Court: Arizona Court of Appeals

227 Ariz. 424

258 P.3d 242

611 Ariz. Adv. Rep. 4

The STATE of Arizona, Appellee,

v.Ricky GRAY, Appellant.

No. 2 CA–CR 2010–0235.

Court of Appeals of Arizona, Division 2, Department B.

June 20, 2011.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani and Laura P. Chiasson, Tucson, Attorneys for Appellee.West, Christoffel & Zickerman, PLLC By Anne Elsberry, Tucson, Attorneys for Appellant.

OPINION

KELLY, Judge.

¶ 1 After a jury trial, appellant Ricky Gray was convicted of one count each of aggravated domestic violence, tampering with a witness, and influencing a witness. The trial court found Gray had two historical prior felony convictions and sentenced him to enhanced, presumptive, concurrent terms of imprisonment, the longest of which is five years. Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App.1999), avowing she had conscientiously searched the record and found no arguable issues to raise on appeal.

¶ 2 In our review of the record pursuant to Anders, we identified an issue arguably constituting fundamental error and ordered the parties to file supplemental briefs addressing whether, to support Gray's conviction for tampering with a witness under A.R.S. § 13–2804, the state was required to prove that a witness actually had unlawfully withheld testimony, testified falsely, or failed to obey a summons as a result of Gray's conduct and, if so, whether the state had sustained its burden of proof.¹ See Penson v. Ohio, 488 U.S. 75, 83–84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (further briefing required when Anders review presents arguable appellate issue); State v. Jones, 182 Ariz. 243, 244, 895 P.2d 1006, 1007 (App.1994) (state “must prove beyond a reasonable doubt every element of the offense charged”).

¶ 3 We view the facts in the light most favorable to sustaining the jury's verdicts. State v. Chappell, 225 Ariz. 229, n. 1, 236 P.3d 1176, 1180 n. 1 (2010). So viewed, evidence at trial established the following. Gray initially was charged with aggravated assault and aggravated domestic violence stemming from a May 2009 altercation with his girlfriend, Denise J. In early June 2009, Denise received a letter from Gray, in which he had asked her to avoid contact with attorneys and the court and to refrain from answering her door or responding to “court papers.” Denise destroyed the letter and obtained an order of protection prohibiting Gray from having any contact with her; the order was served on Gray on June 24, 2009.

¶ 4 When Denise received additional letters from Gray, she contacted Tucson Police Department detective Michael Kishbaugh, who had investigated the May altercation. She gave Kishbaugh two unopened letters, dated June 22 and July 28, 2009. Kishbaugh testified he was concerned about the contents of each of the letters and noted that, in the June 22 letter, Gray had exhorted Denise, “[J]ust tell them you don't want nothing [sic] to do with this case,” and, “Don't show up for any court dates.” Gray had made similar requests in his July 28 letter to Denise, adding, “I will make it up to you. When I get back to work, I will give you my check again.” Gray then was charged with tampering with a witness and aggravated domestic violence in connection with his June 22 letter and, in a separate indictment, with influencing a witness and aggravated domestic violence in connection with his July 28 letter. Both cases were consolidated for trial with the original aggravated assault and aggravated domestic violence charges for the May 2009 altercation. Denise appeared at Gray's trial and, consistent with her previous statements, testified that, in May 2009, Gray had beaten and choked her and had struck her in the head with a mirror, causing her to suffer a fractured nose and cheek. She also testified about the letters she subsequently received from Gray. The jury convicted Gray of tampering with a witness arising from his June 22 letter to Denise, and with influencing a witness and aggravated domestic violence, based on his interference with judicial proceedings, arising from his July 28 letter.²

Discussion

¶ 5 We review issues of statutory construction de novo. State v. Estrada, 201 Ariz. 247, ¶ 15, 34 P.3d 356, 359 (2001). In construing § 13–2804, we are mindful that “ ‘the best and most reliable index of a statute's meaning is its language and, when the language is clear and unequivocal, it is determinative of the statute's construction.’ ” State v. Aguilar, 209 Ariz. 40, ¶ 26, 97 P.3d 865, 873 (2004), quoting Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). We rely on the commonly accepted meaning of a statutory term, unless the legislature has defined it or it appears from its context that another meaning is intended. State v. Reynolds, 170 Ariz. 233, 234, 823 P.2d 681, 682 (1992). In doing so, “we may consider the definitions of respected dictionaries.” Rigel Corp. v. State, 225 Ariz. 65, ¶ 19, 234 P.3d 633, 637 (App.2010). Only if the plain meaning of the statute remains unclear will we then resort to other means of statutory construction, “such as the context of the statute, its historical background, its effects and consequences, and the spirit and purpose of the law.” State ex rel. Winkleman v. Ariz. Navigable Stream Adjudication Comm'n, 224 Ariz. 230, ¶ 24, 229 P.3d 242, 253 (App.2010).

¶ 6 Section 13–2804(A) provides, in relevant part:

A person commits tampering with a witness if such person knowingly induces a witness in any official proceeding or a person he believes may be called as a witness to:

1. Unlawfully withhold any testimony; or

2. Testify falsely; or

3. Absent himself from any official proceeding to which he has been legally summoned.

As reflected in Gray's indictment for tampering, and acknowledged by the state, Gray was charged with “induc[ing] [Denise J.] ... to unlawfully withhold testimony.” The term “induce” is not defined by statute.

¶ 7 In response to our request for further briefing, both Gray and the state rely on the following definition of “induce” once found in Black's Law Dictionary: “To bring on or about, to affect, cause, to influence to an act or course of conduct, lead by persuasion or reasoning, incite by motives, prevail on.” Black's Law Dictionary 775 (6th ed. 1990).³ Gray maintains this definition denotes “a cause and effect requirement” and therefore, to be convicted of tampering with a witness, “the defendant's actions must actually cause the potential witness to withhold testimony, testify falsely or absent himself from proceedings.” In contrast, the state argues that although “this definition includes inducement that actually results in another person engaging in the desired activity, ... inducement is complete when a person influences, leads, or prevails on another to take the course of action, and does not depend on whether the person actually takes that action.”

¶ 8 Whether the use of the term “induces” in § 13–2804 requires proof that a defendant has succeeded in causing another to unlawfully withhold testimony is a matter of first impression in Arizona courts. In other contexts, federal and other state courts have found dictionary definitions of induce “signif[y] a successful persua[s]ion; that the act has been effective and the desired result obtained.” State v. Miller, 252 A.2d 321, 324–25 (Me.1969) (charge of inducing another to take indecent liberties requires proof that “the persuasion has resulted in the doing of the indecent act”); see also Hautau v. Kearney & Trecker Corp., 179 F.Supp. 490, 492 (E.D.Mich.1959) (patent infringement; “the common, ordinary meaning of ‘induce’ seems to be one involving causation and ... the term ‘induce’ is to be strictly differentiated from ‘attempt to induce’ ”); Combs v. Commonwealth, 198 S.W.3d 574, 578 (Ky.2006) (construing statute prohibiting “unlawful transaction with a minor” to require minor's participation); Commonwealth v. Foley, 24 Mass.App.Ct. 114, 506 N.E.2d 1160, 1161 & n. 1 (1987) (construing charge of “ ‘induc[ing a] person under eighteen of chaste life to have unlawful sexual intercourse’ ” to require act of sexual intercourse) (alteration in original).

¶ 9 We agree with the court in Hautau that some definitions of induce “[are] not entirely unequivocal.” ⁴ 179 F.Supp. at 492. The following definition may be the most precise: “induce ... to move by persuasion or influence”; “to call forth or bring about by influence or stimulation”; “EFFECT, CAUSE”; or “to cause the formation of.” Merriam–Webster's Collegiate Dictionary (11th ed. 2004). We recognize that a dictionary definition may not be conclusive and, because “context gives meaning,” statutory terms should not be considered in isolation. United States v. Santos, 553 U.S. 507, 512, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). But, notwithstanding the state's arguments to the contrary, we find no reason to depart from the ordinary meaning of the term “induce” when we consider it in the context of title 13, chapter 28 and its legislative history. See Reynolds, 170 Ariz. at 234, 823 P.2d at 682.

¶ 10 The state concedes that, “when read in conjunction with other statutes in the same chapter, § 13–2804 arguably could be read to require that the witness actually change his conduct as a result of the defendant's efforts,” noting that A.R.S. § 13–2802(A) (“Influencing a Witness”), prohibits one from engaging in specific conduct, directed toward another, “with intent to ... [i]nduce that person to avoid legal process” or to “[i]nduce that person to absent himself from any official proceeding to which he has been legally summoned.” The state thus acknowledges that “the legislature may have used the word ‘induce’ [in § 13–2804] to define conduct which successfully effectuates a change in the witness'[s] behavior, while ‘with intent to induce’ [in § 13–2802] might refer to conduct that is intended (but...