State v. Bernal

33 P.3d 1106, 109 Wash. App. 150

• Court: Court of Appeals of Washington
• Decided: November 9, 2001
• Docket: No. 25652-5-II
• Status: Published

Opinions

Morgan, J.

— The State appeals the trial court’s dismissal of charges filed against Marlena Denece Bernal. The basis of the trial court’s ruling was the State could not prove the necessary corpus delicti. We affirm.

In early December 1999, Zachariah Reid, age 14, was living in a trailer rented by his father’s girl friend. His father lived elsewhere.

At 3:00 a.m. on December 5, 1999, Reid was seen in good health. At 1:30 p.m. on the same date, his body was found inside the trailer. He had died from a heroin overdose.

On December 7,1999, the police interviewed Bernal, who lived in the same trailer park. She admitted selling heroin to Reid on the evening of December 4, 1999.

Based on the foregoing — the record contains no other material evidence — the State charged Bernal with homicide by controlled substance (Count I) and distributing a controlled substance to a minor (Count II). Bernal filed a pretrial motion to dismiss in which she alleged that the State could not prove the necessary corpus delicti and that the State lacked sufficient evidence to take the case to a jury. Ruling that the State could not prove the necessary corpus delicti, the trial court granted the motion. The State then filed this appeal.

Washington’s version of the corpus delicti rule requires that the State produce evidence, independent of the accused’s statements, sufficient to support a finding that the charged crime was committed by someone.¹ ****&The rule does not require the State to establish who committed the charged crime.² A court considering whether the State has met its burden must take the evidence in the light most favorable to the State.³

Count I charged Bernal with controlled substances homicide. According to RCW 69.50.415, a person is guilty of that crime if he or she unlawfully delivers heroin that “is subsequently used by the person to whom it was delivered, resulting in the death of the user.” To prove a corpus delicti for Count I, the State had to produce evidence, independent of Bernal’s statements, sufficient to support findings that heroin was delivered to Reid, and that his use of it resulted in his death.

Count II charged delivery of heroin to a minor in violation of RCW 69.50.401(a)(i) and RCW 69.50.406(a). According to the first of those statutes, a person is guilty of that crime if he or she knowingly delivers heroin to another.⁴ According to the second of those statutes, a person is subject to increased penalties if, while he or she is at least 18, he or she delivers to one who is under 18.⁵ To prove a corpus delicti for Count II, the State had to produce evidence, independent of Bernal’s statements, sufficient to support a finding that heroin was delivered to Reid by someone.

Bernal does not dispute that the State produced evidence sufficient to support a finding that Reid’s use of heroin resulted in his death. The remaining question is the same for both counts: Did the State produce evidence, independent of Bernal’s statements, sufficient to support a finding that the heroin was delivered to Reid by someone else?

The State did not produce such evidence. The record shows that Reid was found dead of a heroin overdose. Excepting Bernal’s statement, the record shows absolutely nothing about how Reid acquired the heroin that caused his death. We can speculate that he acquired it by delivery, by stealing it, by finding it, or by some other means — but the record gives no rational basis for inferring one possibility over the others.

According to the dissent, it is simply speculation unsupported by evidence that Reid could have found or stolen the heroin. We agree entirely — but it is equally speculative to infer that Reid obtained the heroin by delivery. There is simply no evidence, independent of Bernal’s statements, from which to infer how Reid obtained heroin.

Washington’s corpus delicti rule has not been satisfied, and the trial court correctly dismissed the case. Its judgment is affirmed.

Seinfeld, J., concurs.

1 City of Bremerton v. Corbett, 106 Wn.2d 569, 574-75, 723 P.2d 1135 (1986); see also State v. Ray, 130 Wn.2d 673, 679, 926 P.2d 904 (1996); State v. Lung, 70 Wn.2d 365, 371-72, 423 P.2d 72 (1967); State v. Meyer, 37 Wn.2d 759, 763, 226 P.2d 204 (1951); State v. Flowers, 99 Wn. App. 57, 59-60, 991 P.2d 1206 (2000); State v. Pineda, 99 Wn. App. 65, 76-77, 992 P.2d 525 (2000); State v. Solomon, 73 Wn. App. 724, 728, 870 P.2d 1019, review denied, 124 Wn.2d 1028 (1994); 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 1.4(b), at 24 (1986) (rule “embraces the fact that a crime has been committed by someone”). For other jurisdictions’ versions of the rule, see 4 Francis Wharton, Wharton’s Criminal Evidence § 648, at 201-05 (Charles E. Torcia ed., 14th ed. 1987).

2 Corbett, 106 Wn.2d at 574; see also Meyer, 37 Wn.2d at 763; Flowers, 99 Wn. App. at 60; Pineda, 99 Wn. App. at 76-77; Solomon, 73 Wn. App. at 728; State v. Neslund, 50 Wn. App. 531, 542, 749 P.2d 725, review denied, 110 Wn.2d 1025 (1988); LaFave, supra, § 1.4(b), at 24 n.1.

3 Ray, 130 Wn.2d at 679; State v. Aten, 130 Wn.2d 640, 658, 927 P.2d 210 (1996); State v. Smith, 115 Wn.2d 775, 782 n.1, 801 P.2d 975 (1990); Corbett, 106 Wn.2d at 571; Lung, 70 Wn.2d at 372; Flowers, 99 Wn. App. at 59-60; Pineda, 99 Wn. App. at 77; Solomon, 73 Wn. App. at 727; Neslund, 50 Wn. App. at 544.

4 See State v. Langworthy, 92 Wn.2d 148, 152, 594 P.2d 908 (1979) (“delivery necessarily requires the participation of two persons”). I omit State v. Boyer’s requirement of knowledge, as it makes no difference here. See State v. Boyer, 91 Wn.2d 342, 344, 588 P.2d 1151 (1979).

5 See State v. Nass, 76 Wn.2d 368, 372, 456 P.2d 347 (1969) (former RCW 69.33.410(4) (1967) provided for increased penalties but did not establish separate offense), superseded by statute on other grounds, State v. Hernandez, 53 Wn. App. 702, 705, 770 P.2d 642, review denied, 112 Wn.2d 1028 (1989).