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.
¶ 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.
¶ 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:
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).
¶ 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."
¶ 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
¶ 11 But in its supplemental brief and at oral argument, the state argued we should reject this construction because it would render meaningless the statute's prohibition against tampering with "a person [the defendant] believes may be called as a witness." According to the state, the legislature used this language to prohibit conduct intended to dissuade any person from testifying truthfully, even a person whom the defendant "mistakenly" believes might be called to testify. Because such a person would never actually be in a position to withhold or falsify testimony, the state argues we would render this prohibition meaningless if we construe "induce" as requiring a defendant's conduct to effect that result. See, e.g., Williams v. Thude, 188 Ariz. 257, 259, 934 P.2d 1349, 1351 (1997) (courts avoid statutory construction rendering clause void, inert, redundant, or trivial).
¶ 12 After review of other statutes found in title 13, chapter 28, as well as their predecessor statutes and related case authority, we conclude that according "induce" its common meaning would not nullify the legislature's reference to "a person [a defendant] believes may be called as a witness." Contrary to the state's assertion, the legislature may have used this phrase to include potential witnesses not yet identified or summoned who, as a result of the defendant's inducements, may successfully evade process. Cf. A.R.S. § 13-2810(A)(2), (3) (prohibiting interfering with judicial proceedings by knowingly resisting process). In the absence of such language, one charged with the offense of tampering with a witness might defend on the ground that, at the time he exerted his influence, the other person had neither been named as a witness nor been called to testify.
¶ 13 Our supreme court addressed a similar concern in State v. Ferraro, 67 Ariz. 397, 399-400, 198 P.2d 120, 121-22 (1948) (construing Ariz.Code Ann. § 43-3906 (1939)). In that case, the court rejected a defendant's suggestion that a statute prohibiting bribery of "any witness or person about to be called as a witness" was restricted to "those already served with subpoena or under legal process to appear as witnesses in pending actions." The court instead concluded that the statute prohibited bribing "`any person in contemplation of his becoming a witness'" and held the phrase encompassed "those who are as yet only prospective or contemplated witnesses." Id., quoting People v. McAllister, 99 Cal.App. 37, 277 P. 1082, 1084 (1929); see also State v. Bailey, 346 Or. 551, 213 P.3d 1240, 1244 (2009) (Oregon statute prohibiting tampering with witness or person one "believes may be called as a witness in any official proceeding" prohibited conduct that preceded initiation of official proceeding).
¶ 14 The legislature's inclusion of "a person who [the defendant] believes may be called as a witness" similarly precludes a defense based on a restrictive construction of the term "witness" and clarifies the application of the statute. Thus, this language is not rendered meaningless by requiring that, before a defendant is convicted of having induced a person to withhold testimony or testify falsely, both cause and effect must be shown. Moreover, even if we were to conclude that the meaning of § 13-2804 is unclear or subject to more than one interpretation, "`the rule of lenity requires us to resolve any ambiguity in favor of the defendant.'" State v. Lockwood, 222 Ariz. 551, ¶ 4, 218 P.3d 1008, 1010 (App.2009), quoting Reinesto v. Superior Court, 182 Ariz. 190, 192, 894 P.2d 733, 735 (App.1995).
¶ 15 Had the legislature intended to draft § 13-2804 to prohibit both the accomplished act and an unsuccessful attempt, it could have done so, as it has in other circumstances. See § 13-2802(A)(2) (prohibits threatening witness or offering benefit to witness or person one believes may be called as a witness "with intent . . . to [i]nduce" avoidance of process or summoned attendance); 1969 Ariz. Sess. Laws, ch. 133, § 13 (under former A.R.S. § 13-1825, illegal to "willfully prevent[], dissuade[], or attempt[] to prevent or dissuade, a person who is or may become a witness from attending . . . any proceeding or inquiry authorized by law"); former A.R.S. § 13-289 (1956) (prohibiting "attempts by any other means fraudulently to induce a person to give false testimony, or withhold true testimony"); former
¶ 16 We do not disagree with the state's contention that it "would be consistent with the legislature's goal of barring persons from improperly interfering with official proceedings" to prohibit unsuccessful attempts to persuade a witness to withhold her testimony. But the legislature has addressed the issue of unsuccessful attempts under A.R.S. § 13-1001, which prohibits persons from attempting to commit a crime, even if the crime is not completed. The legislature appears to have regarded this as sufficient prohibition.
¶ 17 Nor do we doubt the state's assertion that our construction of the statute requires the state to prove more to convict a defendant of witness tampering than would an interpretation that permitted prosecution based on an unsuccessful attempt to persuade a person to withhold or falsify testimony. But the legislature defines crimes and their elements, and we may neither add nor subtract elements to those definitions. See State v. Cheramie, 218 Ariz. 447, ¶ 9, 189 P.3d 374, 376 (2008); Ferraro, 67 Ariz. at 401, 198 P.2d at 123. To the extent this potentially could "produce[] an absurd or undesirable result the remedy lies with the legislature, for we must interpret the statutes as we find them." Ferraro, 67 Ariz. at 402, 198 P.2d at 123.
¶ 18 Accordingly, we conclude a conviction for tampering with a witness under § 13-2804 requires proof that a defendant knowingly caused a witness or a person he believed might be called as a witness to unlawfully withhold testimony, testify falsely, or fail to appear at an official proceeding when summoned. The state concedes it did not prove that Denise had altered her conduct or testimony as a result of Gray's conduct. But the jury, which had not been informed of this requirement, could not have found Gray guilty of the completed offense of tampering with a witness without also implicitly finding, beyond a reasonable doubt, that he had "attempted" to do so, in violation of §§ 13-1001 and 13-2804. We therefore conclude modification of Gray's judgment, to reflect his conviction for the lesser-included offense of attempted tampering with a witness, is appropriate in this case. See, e.g., State v. Rowland, 12 Ariz.App. 437, 437-38, 471 P.2d 322, 322-23 (1970) (modifying judgment, when evidence only insufficient to prove element of greater offense, to reflect conviction for proven, lesser-included offense); State v. Garcia, 138 Ariz. 211, 214, 673 P.2d 955, 958 (App.1983) (same).
¶ 19 Accordingly, we vacate Gray's conviction and sentence for tampering with a witness, modify the judgment to reflect his conviction for attempted tampering with a
CONCURRING: GARYE L. VÁSQUEZ, Presiding Judge, and PETER J. ECKERSTROM, Judge.