State v. Cardenas-Flores

• Court: Washington Supreme Court
• Decided: August 17, 2017
• Docket: 93385-5
• Status: Published

Opinion

/Fl L'E This opinion was filed for record g ,'0~) 4-wi on UJ0a-<5vS:7\f- :) / IN CLERKS OFFICE aJPflBIE COURT, 8TATE OF WAflHINGTON at /-7, ).,.o I , I "\ DATE AUG 1 7.J017 ''.1M;\ lvyw,t . ('~ CHIEF JUSTICE ~~ SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent, NO. 93385-5

V. ENBANC ZAIDA YESENIA CARDENAS-FLORES,

Petitioner. Filed AUG 1 7 2017

STEPHENS, J.-The doctrine of corpus delicti protects against convictions

based on false confessions, requiring evidence of the "'body of the crime.'" State v.

Aten, 130 Wn.2d 640, 655-57, 927 P.2d 210 (1996). The primary question in this

case is whether, in light of State v. Dow, 168 Wn.2d 243, 227 P.3d 1278 (2010), a

criminal defendant may bring a corpus delicti challenge for the first time on appeal.

Zaida Yesenia Cardenas-Flores did not make a corpus delicti objection at trial,

raising it for the first time on appeal. Viewing the objection as solely a challenge to

the admissibility of her confession, the Court of Appeals held that Cardenas-Flores State v. Cardenas-Flores (Zaida Yesenia), 93385-5

waived her evidentiary claim. We disagree and hold that a criminal defendant may

raise corpus delicti for the first time on appeal as a sufficiency of the evidence

challenge. On the merits of Cardenas-Flores's claims, we hold that the State

presented sufficient evidence to establish the corpus delicti and all elements of the

crime charged, and we reject her challenge to the jury instructions. Accordingly, we

affirm her conviction.

FACTS AND PROCEDURAL HISTORY

On December 18, 2013, Cardenas-Flores and Carlos Austin brought their

infant son, C.A., to the emergency room. They reported that earlier that night, Austin

had accidentally rolled over onto C.A.' s leg while they were sleeping near each other

on a bed. Both parents were concerned that C.A. had been injured as a result of the

rollover. A doctor examined C.A. and ordered X-rays, noting some initial swelling

and tenderness around his left leg. After reviewing the X-rays, the doctor reported

that "everything looked normal." Report of Proceedings (RP) (Aug. 19, 2014) at

182-83.

A few days later, Cardenas-Flores took her son to his regular pediatrician for

a wellness exam. The pediatrician manipulated C.A. 's leg and found no deformities,

noting the child had full range of motion. The pediatrician and a supervising doctor

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reviewed C.A.'s X-rays and agreed with the emergency room doctor that everything

looked normal.

On December 23, Cardenas-Flores and Austin once more rushed C.A. to the

emergency room with concerns about C.A. 's leg. The hospitalist reported that

C.A.'s left thigh was very swollen and tender, and that the infant was "obviously in

a lot of pain whenever [the leg] was ... moved." RP (Aug. 18, 2014) at 65-66.

Another X-ray was taken, this time showing a displaced femur fracture. 1 The doctor

concluded that the fracture occurred recently because it showed no healing in the

area and a child as young as C.A. would typically begin healing within 7 to 10 days,

if not sooner. Such an injury, according to the physician, would have been

"immediately obvious, immediately symptomatic [and] ... caus[ing] immediate

pain and swelling." Id. at 72. The only time C.A. would not feel "excruciating pain"

is when his leg was stabilized. Id. at 69, 75.

When asked how C.A. was injured, both parents responded that the December

18 rollover caused the fracture and that the swelling had worsened, prompting them

to bring C.A. back to the hospital. The physician concluded that the rollover incident

could not have injured C.A. for three reasons: (1) displaced fractures do not typically

1A "displaced fracture" is one in which the bone is in two separate pieces, unlike a fracture where the bone remains together with a line through it. RP (Aug. 18, 2014) at 64.

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occur in rollovers because the bed absorbs most of the energy; (2) the time frame did

not support that cause because earlier X-rays clearly showed no fracture from the

accident; and (3) multiple medical providers examined C.A. between the rollover

and the final hospital visit and found no fracture. Fearing that C.A.'s injury was the

result of nonaccidental trauma, the doctor contacted the police and Child Protective

Services.

Law enforcement officers interviewed Cardenas-Flores, asking why she took

C.A. back to the emergency room. She initially responded that C.A. was fine, though

somewhat fussy after the rollover accident on December 18, and that she did not

know what happened to him on December 23 that caused his leg to worsen. Upon

further questioning, Cardenas-Flores altered her response and said she tried to take

her son out of his car seat too fast, which could have caused the fracture. At one

point in the interview, Cardenas-Flores said she believed in God and did not want to

lie; she explained that she wanted to believe the car seat caused C.A. 's injury but

that it was not the cause. She further confessed that she may have put "too much

pressure" on C.A.'s leg when trying to get him out of the car seat faster and pushed

C.A. 's "left leg out and down to straighten it ... hard enough that it actually did

straighten the leg." RP (Aug. 19, 2014) at 201-02. Cardenas-Flores further admitted

that after pushing his leg, C.A. began crying differently from his normal cry, and

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when she was told that her son's leg had been fractured, she said she knew it was

because of her actions.

The State charged Cardenas-Flores with second degree child assault. At trial,

she denied pushing her son's leg or pulling him from his car seat too quickly. She

claimed that she lied to appease the police and that her confession was false. A jury

convicted Cardenas-Flores, and the court sentenced her to 31 months in prison, the

bottom of the standard sentencing range.

Cardenas-Flores appealed her conviction to Division Two of the Court of

Appeals. Among other things, she argued that the State did not produce independent

evidence corroborating her confession to establish corpus delicti. State v. Cardenas-

Flores, 194 Wn. App. 496, 501, 374 P.3d 1217 (2016). The Court of Appeals

affirmed Cardenas-Flores' s conviction, concluding that she had waived any corpus

delicti claim by failing to raise it at trial. 2 The appeals court stated that a corpus

delicti challenge must be preserved because it "is a judicially created rule of

2 Although the Court of Appeals refused to entertain Cardenas-Flores's corpus delicti challenge directly, it conducted a corpus delicti analysis when reviewing her ineffective assistance of counsel claim. See Cardenas-Flores, 194 Wn. App. at 501 (acknowledging Cardenas-Flores's claim that defense counsel was ineffective for failing to object to the admission of her statements on corpus delicti grounds), 517-18 (finding Cardenas-Flores could not demonstrate the requisite prejudice to support her ineffective assistance of counsel claim because the State presented sufficient independent evidence of the corpus delicti).

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evidence[,] ... not [a] constitutionally mandated" sufficiency of the evidence rule.

Id. at 507-08. Acting Chief Judge Bradley A. Maxa concurred in the result but

argued that procedurally, Cardenas-Flores was not precluded from raising her corpus

delicti challenge for the first time on appeal. Id. at 522.

Cardenas-Flores filed a petition for review in this court, which we granted.

State v. Cardenas-Flores, 186 Wn.2d 1017, 383 P.3d 1015 (2016).

ANALYSIS

This case presents four issues for review: (1) whether corpus delicti may be

raised for the first time on appeal; (2) if so, whether the State presented sufficient

evidence to establish the corpus delicti; (3) whether the State presented sufficient

evidence to sustain a conviction for second degree child assault; and (4) whether jury

instructions properly informed the jury that a parent who intentionally touches a

child and causes harm may be convicted of assault. We address each issue in turn.

I. A Criminal Defendant May Raise Corpus Delicti for the First Time on Appeal Because It Permeates Any Conclusion on the Sufficiency of the Evidence To Convict

We must first decide whether to consider Cardenas-Flores's corpus delicti

challenge on appeal. Our decision turns on how we characterize corpus delicti: as

concerning only the admissibility of a confession, or as affecting any review of the

sufficiency of the evidence to convict. At trial, either characterization should yield

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the same result if the defendant's confession is uncorroborated. Under the

admissibility characterization, the jury will not be allowed to hear the defendant's

confession and without other evidence, the State cannot prove its case. Under the

sufficiency characterization, the prosecution should be dismissed for want of

evidence. The two characterizations, however, yield different results on appeal.

Under the admissibility characterization, the defendant's corpus delicti challenge

will be deemed waived if not raised at trial, as it is only an evidentiary objection.

Under the sufficiency characterization, the defendant can raise corpus delicti for the

first time on appeal, as it is a challenge to the sufficiency of the evidence. See State

v. McGill, 50 Kan. App. 2d 208, 257-58, 328 P.3d 554 (2014) (Atcheson, J.,

dissenting) (explaining consequences of two characterizations of corpus delicti).

Cardenas-Flores relies on our opinion in Dow, which described corpus delicti

as a rule of both admissibility and sufficiency. Pet. for Review at 10 (citing Dow,

168 Wn.2d at 251). She criticizes the Court of Appeals for failing to interpret her

corpus delicti claim as a sufficiency of the evidence claim that can be raised for the

first time on appeal. Id. at 10-11. The State counters that corpus delicti is a rule of

evidence, and that any challenge is waived absent a timely objection at trial. Suppl.

Br. ofResp't at 15. We believe that Cardenas-Flores has the better argument based

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on our case law, the United States Supreme Court's case law, and the underlying

purpose of the corpus delicti rule.

A. While Corpus Delicti Contains Traces of an Admissibility Rule, It Is Principally a Rule of Sufficiency

"Corpus delicti means the 'body of the crime."' State v. Brockob, 159 Wn.2d

311, 327, 150 P.3d 59 (2006) (internal quotation marks omitted) (quoting Aten, 130

Wn.2d at 655). The body of the crime "usually consists of two elements: (1) an

injury or loss (e.g., death or missing property) and (2) someone's criminal act as the

cause thereof." City of Bremerton v. Corbett, 106 Wn.2d 569, 573-74, 723 P.2d

1135 (1986). The corpus delicti "must be proved by evidence sufficient to support

the inference that" a crime took place, and the defendant's confession "alone is not

sufficient to establish that a crime took place." Brockob, 159 Wn.2d at 327-28.

Specifically, "[t]he State must present other independent evidence ... that the crime

a defendant described in the [corifession] actually occurred." Id. at 328. 3

Essentially, corpus delicti is a corroboration rule that "prevent[ s] defendants from

being unjustly convicted based on confessions alone." Dow, 168 Wn.2d at 249; see

3 A variety of terms have been used to describe defendants' statements when analyzing corpus delicti claims. Brockob, 159 Wn.2d at 328 n.11 ("referring to 'admissions,' 'confessions,' 'statements,' 'incriminating statements,' 'inculpatory statements,' 'exculpatory statements,' and 'facially neutral' statements" (quoting Aten, 130 Wn.2d at 655-57)). We generally refer to them as confessions.

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also l KENNETH s. BROUN ET AL., McCORMICK ON EVIDENCE§ 145, at 802 n.7 (7th

ed. 2013) ("The corroboration requirement rests upon the dual assumptions that [the]

risk[] of inaccurac[ies] are serious ... and that juries are likely to accept confessions

uncritically.").

Washington appears to have used the rule in at least two distinct senses. First,

it refers to the sufficiency of the evidence to support a conviction. State v. Angulo,

148 Wn. App. 642, 648, 200 P.3d 752 (2009), review denied, 170 Wn.2d 1009

(2010); see also State v. Marcy, 189 Wash. 620,623, 66 P.2d 846 (1937) ("'[B]efore

there can be a lawful conviction of a crime, the corpus delicti ... must be proved."'

(quoting 7 RULING CASE LAw View Upholding Preference Given Stockholder or

Officer § 774 (1915))). Second, it refers to the evidentiary foundation required

before admitting a defendant's confession into evidence. Angulo, 148 Wn. App. at

648; see also Brockob, 159 Wn.2d at 339 (finding that one of the defendant's

confessions was properly admitted under the corpus delicti rule). Unsure of this

duality, a few Court of Appeals opinions have applied a forfeiture rule when the

defendant failed to challenge the admissibility of a confession at trial on corpus

delicti grounds. See State v. CD. W., 76 Wn. App. 761, 762-63, 887 P.2d 911 (1995)

(holding that the defendant waived his corpus delicti challenge on appeal by failing

to raise it at trial because corpus delicti is not constitutionally mandated, and is

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therefore only a rule of evidence); State v. Page, 147 Wn. App. 849, 855, 199 P.3d

437 (2008) ("[The defendant] did not raise this issue at trial, so we need not consider

the issue directly on appeal."); State v. Dodgen, 81 Wn. App. 487,492,915 P.2d 531

(1996) ("The corpus delicti rule is a judicially created rule of evidence, not a

constitutional sufficiency of the evidence requirement."). While these courts have

couched corpus delicti as only an evidentiary rule, our cases confirm that corpus

delicti permeates considerations of sufficiency of the evidence. This is apparent not

only in the language we have used to describe corpus delicti, but also in the remedy

we have awarded after a finding of insufficient evidence of the corpus delicti and the

charge. 4

Originally, this court used corpus delicti in the sufficiency context to describe

the State's burden of proving the body of the crime beyond a reasonable doubt. For

4 While the concurrence agrees that corpus delicti refers to both the sufficiency of the evidence to support a conviction and the evidentiary foundation required before admitting a defendant's confession into evidence, the concurrence concludes that corpus delicti and "the corpus delicti rule" are distinct concepts. Concurrence at 2. For this proposition, the only case the concurrence cites to is City ofBremerton v. Corbett, 42 Wn. App. 45, 49, 708 P.2d 408 (1985), aff'd, 106 Wn.2d 569, which cites to State v. Fagundes, 26 Wn. App. 477,614 P.2d 198, 625 P.2d 179 (1980). While the court in Corbett explicitly stated that corpus delicti and the corpus delicti rule "are different," 42 Wn. App. at 49 n.2, the court in Fagundes did not distinguish between the two and stated only that "corpus delicti must be considered for two purposes," 26 Wn. App. at 484. This aligns with Dow, in which we stated corpus delicti, as a whole, pertains both to admissibility and sufficiency. See 168 Wn.2d at 251. We treat corpus delicti and the corpus delicti rule as a single concept with distinct aspects.

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example, in State v. Pienick, 46 Wash. 522, 523, 525, 529, 90 P. 645 (1907), this

court reversed the defendant's conviction because the evidence was insufficient to

establish the corpus delicti and to convict, but remanded for a new trial based on the

defendant's motion. The court in Pienick suggested that it would have dismissed the

charge, rather than remand for a new trial, had the defendant moved for a directed

verdict before the case was submitted to the jury. Id. at 529. Similarly, in State v.

Marselle, 43 Wash. 273, 276-77, 86 P. 586 (1906), this court reversed the

defendant's conviction because the evidence was insufficient to establish corpus

delicti and to convict, but remanded for a new trial because there was evidence of a

lesser included offense. The court in Marselle explained that "[bJut for this element

of the lesser offense, the [defendant] would, upon the record, be entitled to a

discharge instead of a new trial." Id. at 277. Indeed, in conducting the corpus delicti

analysis, the court in Marselle stated, "A confession not corroborated by

independent evidence of the corpus delicti is not sufficient to support a conviction

of crime." Id. at 276 (second emphasis added).

Our more recent cases also regard corpus delicti as a sufficiency of the

evidence rule. In Aten, the defendant confessed to suffocating a child in her care.

130 Wn.2d at 648-50. Death was attributed to sudden infant death syndrome, but

the cause, whether natural or manual strangulation, could not be determined. Id. at

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646. At trial, the defendant moved to exclude her confessions and moved to dismiss

the charge. Id. at 654. The trial court denied both motions and convicted the

defendant as charged. Id. The Court of Appeals reversed the conviction and

dismissed the charge. Id. at 655. This court affirmed based on its conclusion that

there was insufficient independent evidence of the corpus delicti and insufficient

evidence to convict. Id. at 662, 667. Notably, in upholding the dismissal, this court

stated that the "corpus delicti issue permeate[d] any conclusion on sufficiency of the

evidence." 5 Id. at 667; see also State v. Ray, 130 Wn.2d 673, 681, 926 P.2d 904

(1996) (reinstating the trial court's order dismissing the charge because the State

failed to establish corpus delicti independent of the defendant's confession).

This court most recently examined corpus delicti in Dow. The defendant there

was charged with molesting a child. 168 Wn.2d at 247. The only evidence at trial

was the defendant's recorded out-of-court statements. Id. at 246-47. The defendant

sought to exclude his statements about the alleged abuse as inadmissible for failure

to satisfy corpus delicti. Id. at 24 7. The State conceded it had no other corroborating

5 The concurrence contends that the sufficiency characterization is obsolete because defendants now challenge the sufficiency of the evidence under the standard announced in Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) and State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980) (plurality opinion). Concurrence at 5. But this ignores Aten, 130 Wn.2d at 667, and Dow, 168 Wn.2d at 251, both of which were decided after Green and linked corpus delicti to sufficiency of the evidence review.

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evidence, but argued that the defendant's statements were admissible under RCW

10.58.035.6 Id. After finding the statements were exculpatory and insufficient to

convict, the trial court dismissed the case. Id. at 248.

This court affirmed, holding that even though the statements were trustworthy

and admissible under RCW 10.58.035, the trial court did not err because the statute

pertains only to "admissibility" of statements and does not relieve the State of its

burden to establish corpus delicti and present sufficient evidence to support a

conviction. Id. at 253-54. Because there was no independent corroborating evidence

of the defendant's statements to the police and the State had no other evidence

besides the defendant's statements to prove its case, the trial court properly

dismissed the case. Id. at 254-55.

Dow's characterization of corpus delicti frames the primary issue before us.

We stated in Dow that even though corpus delicti is "not constitutionally mandated"

under the Washington Constitution or its federal counterpart, the rule operates as

6 RCW 10.58.035(1) provides that "where independent proof of the corpus delicti is absent, and the alleged victim of the crime is dead or incompetent to testify, a lawfully obtained and otherwise admissible ... statement of the defendant shall be admissible into evidence if there is substantial independent evidence that would tend to establish the trustworthiness of the ... statement." The legislature provided a nonexclusive list of factors to consider in determining trustworthiness. See RCW 10.58.035(2).

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"both a rule of admissibility and a rule of sufficiency." Id. at 249-51.7 In explaining

and applying the rule to the defendant's statements, we noted that our "corpus delicti

cases have always required sufficient evidence independent of a defendant's

confession to support a conviction [and] RCW 10.58.035 does nothing to change

this requirement." Id. at 254. In other words, even if the requirements of RCW

10.58.035 are met, "something more must exist in order to support the State's case,

both under the statute and the corpus delicti doctrine." Id. at 253; see also RCW

10.58.035(4) ("Nothing in this section may be construed to prevent the defendant

from arguing ... that the evidence is otherwise insufficient to convict." (emphasis

added)). The court in Dow thus reaffirmed our longstanding view that, at heart,

corpus delicti is a rule of sufficiency.

The Court of Appeals below distinguished Dow on the ground that the

defendant in that case had timely moved to suppress his statements for lack of corpus

delicti. Cardenas-Flores, 194 Wn. App. at 508 (citing State v. Dow, 142 Wn. App.

7 The Dow court properly used the term "sufficiency" to describe both the quantum of proof necessary to corroborate a confession (admissibility) and the quantum of proof necessary to sustain a conviction (sufficiency of the evidence). 168 Wn.2d at 249, 254 (corpus delicti "tests the sufficiency or adequacy of evidence, other than a defendant's confession, to corroborate the confession"; corpus delicti requires "sufficient evidence independent of a defendant's confession to support a conviction" because "[t]he purpose of the corpus delicti rule is to prevent defendants from being unjustly convicted based on confessions alone").

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971,974, 176 P.3d 597 (2008), rev'd, 168 Wn.2d 243). This procedural difference

is immaterial; as Dow made clear, corpus delicti relates to questions of evidentiary

sufficiency, which appellate courts consider for the first time on review. Indeed,

following Dow, this court remanded a case in which the defendant failed to raise a

corpus delicti challenge at trial. State v. Grogan, 147 Wn. App. 511,195 P.3d 1017

(2008) (Grogan I), aff'd on remand, 158 Wn. App. 272, 246 P.3d 196 (2010)

(Grogan II). In Grogan I, the Court of Appeals refused to entertain the defendant's

corpus delicti challenge because the defendant raised it for the first time on appeal.

147 Wn. App. at 519. This court then accepted review and remanded for

reconsideration in light of Dow. Order, State v. Grogan, No. 82609-9 (Wash. June

2, 2010). On remand, the Court of Appeals properly entertained the defendant's

corpus delicti challenge. Grogan II, 158 Wn. App. at 277. In doing so, the appeals

court stated:

The corpus delicti rule does not merely set a standard for the admission of statements into evidence; it establishes that an uncorroborated confession is insufficient evidence to sustain a conviction as a matter of law unless independent proof shows that a crime occurred.

Id. at 275 (emphasis added).

Having established that Washington case law treats corpus delicti as a rule of

sufficiency, not merely a rule of evidence, we consider our rule in the broader

context of United States Supreme Court decisions interpreting corpus delicti.

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B. United States Supreme Court Case Law Embracing a "Trustworthiness" Standard Recognizes Corpus Delicti as a Rule of Sufficiency

Criticized as outdated, corpus delicti has been modified in some jurisdictions

and abandoned in others. See 1 BROUN, supra, § 148, at 816-17 & n.2 (collecting

authorities); see also Ray, 130 Wn.2d at 685-86 (Talmadge, J., concurring)

(collecting cases from states that have modified or abandoned corpus delicti).

"Notably, we are among a minority of courts that has declined to adopt a more

relaxed rule." Brockob, 159 Wn.2d at 328. Generally, there are two variations of

the corpus delicti rule: Washington's "corroboration" nlle and the United States

Supreme Court's "trustworthiness" rule. See id. at 328-29.

"Under the Washington rule, . . . the evidence must independently

corroborate, or confirm, a defendant's" confession. Id. "The independent evidence

need not be of such a character as would establish the corpus delicti beyond a

reasonable doubt, or even by a preponderance of the proof. It is sufficient if it prima

facie establishes the corpus delicti." State v. Meyer, 37 Wn.2d 759, 763-64, 226

P.2d 204 (1951). "Prima facie corroboration ... exists if the independent evidence

supports a 'logical and reasonable inference of the facts"' the State seeks to prove.

Brockob, 159 Wn.2d at 328 (internal quotation marks omitted) (quoting Aten, 130

Wn.2d at 656).

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Federal courts and some state courts have rejected this corroboration rule for

confessions in favor of a trustworthiness standard announced by the United States

Supreme Court in Opper v. United States, 348 U.S. 84, 75 S. Ct. 158, 99 L. Ed. 101

(1954). See l BROUN, supra,§ 147, at 813-14. Under this federal standard, the

Government "need only present independent evidence sufficient to establish that the

[confession] is trustworthy." Brockob, 159 Wn.2d at 328. The United States

Supreme Court stated,

[T]he better rule [is] that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement. Thus, the independent evidence serves a dual function. It tends to make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense. It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth. Those facts plus the other evidence besides the admission must, of course, be sufficient to find guilt beyond a reasonable doubt.

Opper, 348 U.S. at 93 (citation omitted). This passage demonstrates that the

Supreme Court has relaxed the requirement that independent evidence support the

whole of the corpus delicti. Instead, the independent evidence must corroborate the

confession's description of the crime (the "essential facts admitted") and establish

other elements of the crime not described in the confession (the "other necessary

elements of the offense"). Id.; see also Smith v. United States, 348 U.S. 147, 156,

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75 S. Ct. 194, 99 L. Ed. 192 (1954) ("All elements of the offense must be established

by independent evidence or corroborated admissions, but one available mode of

corroboration is for the independent evidence to bolster the confession itself and

thereby prove the offense 'through' the statements of the accused.").

In opting for a more relaxed rule, the Supreme Court did not change the

requirement that a confession alone cannot sustain a conviction. Rather, it suggested

that the trustworthiness rule, like Washington's corroboration rule, is concerned with

sufficiency of the evidence. In Opper, the Supreme Court stated that "the essential

facts admitted" plus "the other evidence besides the admission must, of course, be

sufficient to find guilt beyond a reasonable doubt." 348 U.S. at 93. And in Smith,

the Supreme Court stated that corpus delicti "prevent[s] 'errors in convictions based

upon untrue confessions alone"' and "restrict[s] ... the power of the jury to convict."

348 U.S. at 153 (quoting Warszower v. United States, 312 U.S. 342, 347, 61 S. Ct.

603, 85 L. Ed. 876 (1941)). Holding that the corpus delicti was satisfied, the

Supreme Court stated that there was "sufficient corroboration ... to permit the case

to go to the jury." Id. at 159. Opper and Smith therefore demonstrate that corpus

delicti operates as a rule of sufficiency. See also United States v. Calderon, 348 U.S.

160, 161, 75 S. Ct. 186, 99 L. Ed. 202 (1954) ("The issue in this case is similar to

the question presented in Smith . . . . The admissibility of [the defendant's]

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statements is not questioned."); 1 BROUN, supra, § 148, at 817 (recommending

Opper' s trustworthiness rule and explaining that there "is insufficient justification

for treating the nlle as one related to admissibility of [a] defendant's admissions"). 8

Both Washington and federal case law recognize that corpus delicti operates

primarily as a rule of sufficiency. While the "trustworthiness" rule and the

"corroboration" n1le differ in application, neither rule regards corpus delicti as

merely an evidentiary challenge subject to preservation of error rules. As we will

now explain, sound practical concerns support maintaining the focus on sufficiency.

C. Recognizing Corpus Delicti as a Rule of Sufficiency Better Adheres to Its Purpose and Practical Value

As noted, the underlying purpose of corpus delicti is to prevent convictions

based solely on confessions. Dow, 168 Wn.2d at 249. Focusing on sufficiency

recognizes this underlying purpose because a defendant is entitled to an acquittal if

the State fails to satisfy corpus delicti and offer proof of each element of the crime.

Thus, an appellate court must reverse and dismiss a conviction that rests solely on

8 The court in Dow recognized this and found that the legislature had adopted the Opper trustworthiness standard only insofar as it pertained to admissibility. See Dow, 168 Wn.2d at 251 (the Opper rule does not "permit a defendant's confession to be the sole evidence used to support a conviction"), 253 ("In contrast to the Opper rule ... RCW 10.58.035 addresses only admissibility."); see also FINAL B. REP. ON ENGROSSED H.B. 1427, at 2, 58th Leg., Reg. Sess. (Wash. 2003) (under Opper, a confession "may be admitted . . . if there is substantial independent evidence that tends to establish the trustworthiness of the confession" (emphasis added)).

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an uncorroborated confession, even if the confession would be sufficient to establish

all the elements of the crime.

In contrast, under the admissibility approach that deems a defendant's corpus

delicti challenge waived absent an objection at trial, the appealing defendant would

have to rely on a separate due process sufficiency challenge to contest the evidence

used to convict. Under such a challenge, reviewing courts examine whether "any

rational trier of fact could have found guilt beyond a reasonable doubt," viewing the

evidence, including the erroneously admitted confession, in the light most favorable

to the State. State v. Salinas, 119 Wn.2d 192,201, 829 P.2d 1068 (1992). A purely

evidentiary corpus delicti n1le therefore would not further its purpose of preventing

the introduction of uncorroborated confessions because, should a false confession be

admitted, the reviewing court would accept it as true. See 1 BROUN, supra,§ 145, at

805 ("On balance, there is no reason for the corroboration requirement to be framed

or discussed as one of admissibility. The courts should stop pretending that it is a

rule of this sort.").

At least three practical values support the conclusion that corpus delicti should

be regarded as pertaining to sufficiency of the evidence. First, the sufficiency

approach acknowledges the reality that individuals sometimes confess to imaginary

crimes. See State v. Unga, 165 Wn.2d 95, 115 n.10, 196 P.3d 645 (2008) ("We must

-20- State v. Cardenas-Flores (Zaida Yesenia), 93385-5

disabuse ourselves of the notion that an innocent person would not confess to a crime

he or she did not commit."); Steven A. Drizin & Richard A. Leo, The Problem of

False Confessions in the Post-DNA World, 82 N.C. L. REV. 891, 920-21 (2004)

("While it is not presently possible to provide a valid quantitative estimate of the

incidence or prevalence of interrogation-induced false confessions in America, the

research literature has established that such confessions occur with alarming

frequency. Social psychologists, criminologists, sociologists, legal scholars, and

independent writers have documented so many examples of interrogation-induced

false confession[ s] in recent years that there is no longer any dispute about their

occurrence." (footnotes omitted)).

Second, the sufficiency approach properly focuses on the merits of a claim

without conferring a windfall to either party. Were we to hold that corpus delicti is

purely an evidentiary rule, a defendant who failed to raise corpus delicti at trial

would likely raise the issue on appeal through the lens of an ineffective assistance

of counsel claim. See Angulo, 148 Wn. App. at 647, 659 (entertaining the

defendant's ineffective assistance of counsel claim for counsel's failure to raise

corpus delicti at trial); Page, 147 Wn. App. at 855, 858 (same); CD. W., 76 Wn. App.

at 764-65 (same). Cardenas-Flores did just that, and the Court of Appeals therefore

indirectly considered the merits of her corpus delicti challenge. Cardenas-Flores,

-21- State v. Cardenas-Flores (Zaida Yesenia), 93385-5

194 Wn. App. at 501, 517-18 (rejecting Cardenas-Flores's ineffective assistance of

counsel claim because the State presented sufficient independent evidence of the

corpus delicti). This seems an inefficient and inadequate approach when sufficiency

remains, at heart, the focus of any review.

Third, recognizing that corpus delicti is a sufficiency rule accords with the

remedy that courts afford when evidence is insufficient: dismissal of unsupported

charges. On appeal, any error in the admission of a confession under corpus delicti

is necessarily considered in light of all the evidence at trial, not simply the

foundation laid when the confession is offered. See State v. Lung, 70 Wn.2d 365,

372,374,423 P.2d 72 (1967) (affirming the trial court's admission of the defendant's

confession before the State established the corpus delicti because the "facts and

circumstances which established the corpus delicti were overwhelming"); see also

1 BROUN, supra, § 145, at 803 (noting that appellate courts are "unwilling to enforce

any requirement of admissibility by reversing convictions supported by sufficient

evidence because the trial court failed to require that evidence before admitting the

confession"). "[A]ny formal requirement of admissibility" is thus "relatively

meaningless" because a trial court's "noncompliance" will not result in reversal.

1 BROUN, supra, § 145, at 804. A finding of insufficiency, on the other hand,

necessitates reversal and dismissal. Indeed, "most appellate courts treat the

-22- State v. Cardenas-Flores (Zaida Yesenia), 93385-5

corroboration requirement as applied on appellate review as relating to evidence

sufficiency, perhaps as well as admissibility. Consequently, a convicted defendant

who prevails on appeal is entitled to acquittal." Id.

These practical considerations support our holding that corpus delicti is, at

heart, a rule of sufficiency. While corpus delicti also concerns admissibility, as

modified by RCW 10.58.035, focusing on it as a rule of sufficiency prevents

convictions based on uncorroborated confessions alone and furthers its purpose and

practical values. Because corpus delicti pertains to sufficiency of the evidence, we

conclude it can be addressed for the first time on appeal, and we disapprove of Court

of Appeals opinions that have held to the contrary. We now turn to the merits of

Cardenas-Flores' s claims.

IL The State Presented Adequate Evidence of Corpus Delicti

Given our conclusion that corpus delicti can be raised for the first time on

appeal, we consider the merits of Cardenas-Flores' s claims. Cardenas-Flores argues

that the State failed to prove the corpus delicti of second degree child assault. Pet 'r's

Suppl. Br. at 13. She argues that the State was required, but failed, to introduce

independent evidence proving she intended to assault her child. Id. at 15-17. Even

if the State was not required to prove her specific intent, Cardenas-Flores contends

the State still failed to prove the corpus delicti because the medical evidence and

-23- State v. Cardenas-Flores (Zaida Yesenia), 93385-5

testimony did not establish a criminal cause for her son's injury. Id. at 15, 17-18.

We reject this argument.

We have consistently held that corpus delicti involves two elements: (1) an

injury or loss (2) caused by someone's criminal act. Corbett, 106 Wn.2d at 573-74.

While the State must establish the mental element of the crime beyond a reasonable

doubt to sustain a conviction, mens rea is not required to satisfy corpus delicti. See

id. 9

To establish the corpus delicti of second degree child assault, the State had to

present prima facie evidence that (1) a specific injury occurred and (2) someone's

criminal act likely caused the injury. See id. As described above, the independent

evidence need not be of such a character that would establish

9 Similarly, we have not required criminal elements such as identity to be established by independent evidence to satisfy corpus delicti. See Aten, 130 Wn.2d at 655 (corpus delicti consists of two elements); Lung, 70 Wn.2d at 371 (same); Meyer, 37 Wn.2d at 763 (same); see also Angulo, 148 Wn. App. at 656 (corpus delicti rule satisfied because independent evidence corroborated the "gravamen" of child rape--a sexual act with a minor). This is consistent with the generally prevailing view that corroborating evidence need "only tend to show the 'major' or 'essential' harm involved in the offense charged and not all of the elements technically distinguished." 1 BROUN, supra,§ 146, at 810. In Brockob, we stated that independent evidence must corroborate "not just a crime but the specific crime with which the defendant has been charged." 159 Wn.2d at 329. We ultimately held there that mere unlawful possession of Sudafed, a misdemeanor, is insufficient to establish the corpus delicti of possession of a controlled substance with intent to manufacture methamphetamine, a felony. Id. at 331-33. We read Brockob as requiring independent evidence of the gravamen of the crime charged, 1.e., methamphetamine production, and thus consistent with the general rule.

-24- State v. Cardenas-Flores (Zaida Yesenia), 93385-5

the corpus delicti beyond a reasonable doubt or even by a preponderance of the

proof. Jvleyer, 37 Wn.2d at 763. The evidence is sufficient if it supports a logical

and reasonable inference of the facts the State seeks to prove. Brockob, 159 Wn.2d

at 328. The independent evidence '"must be consistent with guilt and inconsistent

with a[] hypothesis of innocence."' Id. at 329 (alteration in original) (internal

quotation marks omitted) (quoting Aten, 130 Wn.2d at 660). In determining whether

there is sufficient evidence of the corpus delicti independent of the defendant's

statements, we assume the "truth of the State's evidence and all reasonable

inferences from it in a light most favorable to the State." Aten, 130 Wn.2d at 658.

Sufficient evidence supported the fact that the crime of second degree child

assault occurred. The earlier X-rays of C.A.'s left leg taken after the rollover

accident showed no injury. RP (Aug. 18, 2014) at 59, 61. Multiple doctors agreed

that these X-rays were "normal." RP (Aug. 19, 2014) at 156, 182-83. The second

set of X-rays taken at the hospital showed no healing around that wound that would

have been present had the rollover injury caused the fracture. RP (Aug. 18, 2014) at

68-69. The amount of force necessary to cause C.A.'s injury was more than would

occur in everyday life and consisted of a compression and twisting of C.A. 's leg. Id.

at 7 6, 80. And nothing suggested that C.A. had a genetic disorder or that the fracture

was self-inflicted by a nonambulatory, month-old child. Id. at 83. This evidence

-25- State v. Cardenas-Flores (Zaida Yesenia), 93385-5

supports the logical inference that nonaccidental trauma caused C.A.'s fracture.

Further, it is consistent with guilt and inconsistent with innocence, establishing

prima facie the corpus delicti of the crime of second degree child assault. The State

presented sufficient evidence to satisfy corpus delicti in this case.

UL The State Presented Sufficient Evidence to Convict Cardenas-Flores of Second Degree Child Assault

Cardenas-Flores next contends that regardless of whether corpus delicti was

established, the State failed to present sufficient evidence that she intentionally

assaulted C.A. Pet'r's Suppl. Br. at 16-18. Though she did not clearly present this

argument in her petition for review, it is appropriate to liberally construe her

insufficient evidence claim and thus reach this issue. See RAP 1.2(a) ("These rules

will be liberally interpreted to promote justice and facilitate the decision of cases on

the merits."). Cardenas-Flores does not succeed on this claim.

Evidence is sufficient to support a guilty verdict if any rational trier of fact,

viewing the evidence in the light most favorable to the State, could find the elements

of the charged crime beyond a reasonable doubt. Salinas, 119 Wn.2d at 201. When

a defendant challenges the sufficiency of the evidence, he or she admits the truth of

all of the State's evidence. Id.; State v. Drum, 168 Wn.2d 23, 35, 225 P.3d 237

(2010). In such cases, appellate courts view the evidence in the light most favorable

-26- State v. Cardenas-Flores (Zaida Yesenia), 93385-5

to the State, drawing reasonable inferences in the State's favor. Salinas, 119 Wn.2d

at 201. Circumstantial and direct evidence are to be considered equally

reliable. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). "Credibility

determinations are for the trier of fact" and are not subject to review. State v.

Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

To convict the defendant of second degree child assault based on battery, 10

the State was required to prove that Cardenas-Flores (1) intentionally assaulted

another person (2) under the age of 13 and thereby (3) recklessly inflicted

(4) substantial bodily harm. See RCW 9A.36.021(l)(a), .130(l)(a).

"Unlike the other forms of assault, assault by actual battery (physical contact)

does not require proof of specific intent to cause apprehension or inflict substantial

bodily harm." State v. Stevens, 158 Wn.2d 304, 314, 143 P.3d 817 (2006).

"Instead, assault by actual battery is an intentional touching or striking of another

person that is harmful or offensive, regardless whether it results in any physical

injury." Id. Rather than "'specific intent to inflict harm or cause apprehension ...

10 The definition of "assault" "is threefold and includes common law definitions of battery, attempted battery, and assault." State v. Stevens, 158 Wn.2d 304, 313, 143 P.3d 817 (2006) (Madsen, J. dissenting). "Battery" refers to physical contact; "attempted battery" refers to attempt to cause injury; "common law assault" refers to attempt to cause fear of injury. Id. at 314. Cardenas-Flores' s case fits into the first category, as C.A. was physically harmed.

-27- State v. Cardenas-Flores (Zaida Yesenia), 93385-5

battery requires intent to do the physical act constituting assault."' Id. (alteration in

original) (quoting State v. Hall, 104 Wn. App. 56, 62, 14 P.3d 884 (2000)).

Here, because the State satisfied corpus delicti, Cardenas-Flores's statements

to the police were properly considered by the jury. She admitted to the officers that

she had pushed her son's leg down and out to straighten it. RP (Aug. 19, 2014) at

201-02. As a result, C.A. cried differently from his normal cry. Id. at 202.

Cardenas-Flores also admitted that she knew her actions had caused her son's injury.

Id. These statements plus the physical evidence introduced at trial demonstrate

sufficient evidence that Cardenas-Flores intentionally committed the physical act of

assault-in this case, pushing and straightening C.A.'s leg. The jury properly

considered her inculpatory statements and judged her credibility. The State

presented sufficient evidence of assault by actual battery to sustain Cardenas-

Flores' s conviction.

IV. The Instructions Properly Informed the Jury of the Essential Elements of Second Degree Assault of a Child

Lastly, Cardenas-Flores argues that the jury instructions were erroneous

because a parent who intentionally touches a child and causes harm cannot be

convicted of assault. Pet'r's Suppl. Br. at 7-13. Although Cardenas-Flores failed to

object to the instructions at trial, which generally precludes appellate review of jury

-28- State v. Cardenas-Flores (Zaida Yesenia), 93385-5

instructions, State v. Scott, 110 Wn.2d 682, 685-86, 757 P .2d 492 (1988) (citing CrR

6.15(c)), instructional errors of constitutional magnitude may be challenged for the

first time on review. RAP 2.5(a)(3). Jury instructions are generally sufficient if they

'"inform the jury of the applicable law, [do] not mislead the jury, and permit each

party to argue its theory of the case."' State v. Gordon, 172 Wn.2d 671,677,260

P.3d 884 (2011) (quoting State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241

(2007)). However, the "failure to instruct a jury on every element of a charged crime

is an error of constitutional magnitude." Id. We consider Cardenas-Flores's

challenge in that context. See Scott, 110 Wn.2d at 689.

Cardenas-Flores was charged with second degree assault of a child. The

relevant statutory provisions explain that

(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree: (a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm.

RCW 9A.36.021. And

(1) A person eighteen years of age or older is guilty of the crime of assault of a child in the second degree if the child is under the age of thirteen and the person: (a) Commits the crime of assault in the second degree, as defined in RCW 9A.36.021, against a child.

RCW 9A.36.130.

-29- State v. Cardenas-Flores (Zaida Yesenia), 93385-5

The jury was given the following instructions:

A person commits the crime of assault in the second degree when he intentionally assaults another and thereby recklessly inflicts substantial bodily harm. An assault is an intentional touching or striking of another person that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking ... is offensive if the touching or striking would offend an ordinary person who is not unduly sensitive. Substantial bodily harm means bodily injury that involves a temporary but substantial disfigurement, or that causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or that causes a fracture of any bodily part.

Clerk's Papers at 19-21 (Instrs. 8-10). These standard instructions defining assault

by battery were taken from 11 Washington Practice: Washington Pattern Jury

Instructions: Criminal 35.50, at 164 (3d ed. Supp. 2014-15) (WPIC). To convict

Cardenas-Flores of second degree child assault, these instructions required the jury

to find that Cardenas-Flores intended to do the act, the act was reckless, and the act

resulted in an injury.

Essentially, Cardenas-Flores would have us carve out an exception to assault

for a parent whose intentional touch harms a child. She reasons that parents have a

unique right and duty to engage in intentional touching of their children, and that

small children increase the potential for harm by "strenuously resisting the parent's

touch." Pet'r's Suppl. Br. at 6. She argues that a parent who lawfully intentionally

touches a child and causes injury should not be convicted of assault. Id. at 6-7.

-30- State v. Cardenas-Flores (Zaida Yesenia), 93385-5

Accordingly, she contends her conviction should be reversed because the

instructions given did not require proof of "criminal intent." Pet. for Review at 14-

16 (assault requires "proof of an 'unlawful[] touching . . . with criminal intent."'

(alteration in original) (quoting State v. Hahn, 174 Wn.2d 126, 129, 271 P.3d 892

(2012))). Cardenas-Flores appears to contend that "criminal intent" requires some

form of malice. But she misconstrues our decision in Hahn, which considered a jury

instruction for solicitation to commit fourth degree assault as a lesser included

offense of solicitation to commit first degree murder. 174 Wn.2d at 129-30. In

Hahn, we generally discussed lesser included offense instructions and common law

assault. Id. at 129. We did not define "criminal intent," and our only mention of it

was a passing reference in listing the different forms of common law assault. Id.

Nothing in Hahn is inconsistent with our case law regarding assault by battery,

which concludes that "criminal intent" means the intent to do the act constituting

assault, not that the act is malicious. See Stevens, 158 Wn.2d at 314; State v. Keend,

140 Wn. App. 858,867, 166 P.3d 1268 (2007) ("[A]ssault by battery simply requires

intent to do the physical act constituting assault.").

Cardenas-Flores also asserts that the WPIC's bracketed phrase "with unlawful

force" should have been included in the jury instructions. Pet'r's Suppl. Br. at 9.

This phrase would have alerted jurors that the State was obligated to prove unlawful

-31- State v. Cardenas-Flores (Zaida Yesenia), 93385-5

use of force. Id. at 10. This argument fails, as Cardenas-Flores did not argue that

her use of force in this case was lawful. Rather, she denied that she touched C.A.

and caused his femur fracture, claiming that Carlos's accidental rollover had caused

the injury. RP (Aug. 19, 2014) at 290. Including the bracketed WPIC language

would not have assisted Cardenas-Flores' s case and in fact may have confused

jurors. The pattern jury instructions given were adequate to inform jurors of the

applicable law and allowed Cardenas-Flores to argue her theory of the case. She

does not show reversible error here.

CONCLUSION

We reaffirm Dow and hold that corpus delicti pertains to both admissibility

and sufficiency of the evidence. Because it pertains to sufficiency, a criminal

defendant need not object at trial to raise the issue on appeal. Accordingly, we

entertain Cardenas-Flores's corpus delicti claim. However, because we conclude

that the State presented sufficient evidence of corpus delicti and of the crime of

second degree child assault, and that the jury instructions were adequate, we affirm

Cardenas-Flores's conviction.

-32- State v. Cardenas-Flores (Zaida Yesenia), 93385-5

WE CONCUR:

-33- State v. Cardenas-Flores

No. 93385-5

GONZALEZ, J. (concurring)-! concur with the majority in result. The State

presented sufficient evidence of corpus delicti to properly admit Zaida Cardenas-

Flores' s confession, and the State established all elements of second degree child

assault beyond a reasonable doubt. I also concur with the majority that the

instructions properly informed the jury of the elements of the charged crime. I

write separately because in my view, a challenge to the introduction of a

confession based on corpus delicti is an evidentiary claim. Cardenas-Flores failed

to preserve this error because she did not object at trial and therefore she cannot

bring this claim for the first time on appeal.

The central issue before us today is whether a defendant may bring an

unpreserved corpus delicti challenge on appeal. To answer this question, we must

first determine whether corpus delicti is a rule of evidence that must be preserved

or substantive rule of criminal law that may be raised at any point. The majority

concludes that our decision in State v. Dow, 168 Wn.2d 243, 251, 227 P.3d 1278

(2010) answers both questions. However, a critical examination of that opinion State v. Cardenas-Flores, No. 93385-5 (Gonzalez, J., concurring)

does not provide so simple and inevitable an explanation as the majority presents.

As I will discuss in more detail below, the Dow decision created some confusion

by characterizing corpus delicti as pertaining both to admissibility and sufficiency

of the evidence. Id at 249. Before relying on this characterization, we must look

to the history of our corpus delicti jurisprudence for guidance. As Justice Holmes

once remarked, "[A] page of history is worth a volume of logic." N.Y. Tr. Co. v.

Eisner, 256 U.S. 345,349, 41 S. Ct. 506, 65 L. Ed. 963 (1921).

Examining the body of our case law on this subject reveals two significant

conclusions. First, corpus delicti and the corpus delicti rule, 1 which I will refer to

throughout as the corroboration rule, are interrelated yet distinct concepts. The

traditional formulation of corpus delicti consists of an injury brought about by

criminal agency, i.e., that a crime was committed by someone. City ofBremerton

v. Corbett, 106 Wn.2d 569, 574, 723 P.2d 1135 (1986); 3 JOHN HENRY WIGMORE,

1 Black's Law Dictionary recognizes this distinction, defining "corpus delicti" differently from the "corpus delicti rnle." According to Black's, corpus delicti is "[t]he fact of a transgression," "reflect[ing] the simple principle that a crime must be proved to have occurred before anyone can be convicted for having committed it." BLACK'S LAW DICTIONARY 419 (10th ed. 2014). The corpus delicti rnle, on the other hand, is "[t]he doctrine that in order to secure a conviction, the prosecution must establish the corpus delicti with corroborating evidence." Id. at 420; see also 3 JOI-IN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW§ 2073, at 2784 (1904) ("The application of all rnles of evidence rests with the judge, not the jury; hence, under this rule requiring the existence ofsome corroborative evidence of the corpus delicti, it is for the trial judge to say whether there is such evidence." (some emphasis added)). The Court of Appeals also acknowledged that corpus delicti challenges are separate from the corpus delicti rnle. The court explained that "[t]here is room here for confusion which might be erased by the use of more descriptive tenns." City ofBremerton v. Corbett, 42 Wn. App. 45, 49 n.2, 708 P.2d 408 (1985), aff'd, 106 Wn.2d 569, 723 P.2d 1135 (1986). "These rnles are different and should have different names." Id. 2 State v. Cardenas-Flores, No. 93385-5 (Gonzalez, J., concurring)

EVIDENCE IN TRIALS AT COMMON LAW§ 2072, at 2783 (1904). To sustain a

conviction, the State must also present proof that the defendant was the actor, but,

identity is not part of the corpus delicti. State v. Meyer, 37 Wn.2d 759, 763, 226

P.2d 204 (1951). Altogether, the State must prove injury, criminal agency, and the

defendant's identity beyond a reasonable doubt. See id.; State v. Green, 94 Wn.2d

216, 221, 616 P.2d 628 (1980) (plurality opinion) (whether a rational trier of fact

can find the essential elements of the charged crime beyond a reasonable doubt);

State v. Hill, 83 Wn.2d 558, 560, 520 P.2d 618 (1974) ("[The State] bears the

burden of establishing beyond a reasonable doubt the identity of the accused as the

person who committed the offense.").

On the other hand, the corroboration rule bars admission of an

uncorroborated confession to prove the corpus delicti unless there is independent

proof thereof. Corbett, 106 Wn.2d at 574. Once corpus delicti has been satisfied,

a "' confession may then be considered in connection therewith and the corpus

delicti established by a combination of the independent proof and the confession."'

Id. (quoting Meyer, 37 Wn.2d at 763); accord State v. Aten, 130 Wn.2d 640, 655-

56, 927 P.2d 210 (1996); State v. Ray, 130 Wn.2d 673,679,926 P.2d 904 (1996);

State v. Vangerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995); State v. Riley, 121

Wn.2d 22, 32, 846 P.2d 1365 (1993); State v. Smith, 115 Wn.2d 775, 781, 801 P.3d

975 (1990); State v. Ryan, 103 Wn.2d 165, 178, 691 P.2d 197 (1984). Thus,

3 State v. Cardenas-Flores, No. 93385-5 (Gonzalez, J., concurring)

corpus delicti and the corroboration rule are related yet distinct concepts. See

People v. LaRosa, 2013 CO2, 293 P.3d 567, 572 ("From this corpus delicti

concept, we have derived the corpus delicti rule.").

Second, the history of corpus delicti reveals that it was once used to

challenge the sufficiency of the evidence. Though not mandated by the state or

federal constitutions, see Dow, 168 Wn.2d at 249, Washington courts have

historically analyzed corpus delicti as challenging the sufficiency of the evidence

supporting a conviction and reviewing the evidentiary foundation necessary to

introduce a defendant's statement into evidence. State v. Angulo, 148 Wn. App.

642, 648, 200 P.3d 752 (2009). The cases examining corpus delicti as an issue of

sufficiency were decided in the earliest decades of statehood. Timmerman v.

Territory, 3 Wash. Terr. 445, 450, 17 P. 624 (1888) (describing the State's burden

of proving corpus delicti beyond a reasonable doubt); State v. Gates, 28 Wash.

689,695, 69 P. 385 (1902) (discussing corpus delicti as a matter of sufficiency of

the evidence); State v. Pienick, 46 Wash. 522, 646-47, 90 P. 645 (1907) (same).

Subsequent cases have described corpus delicti as an evidentiary issue. See, e.g.,

State v. Marse/le, 43 Wash. 273, 275-76, 86 P. 586 (1906) (reversing a conviction

based on erroneous admission of uncorroborated statements and remanding for

new trial); State v. Thomas, l Wn.2d 298, 302, 95 P.2d 1036 (1939) (reviewing

trial court's corpus delicti ruling admitting a confession); Meyer, 37 Wn.2d at 763-

4 State v. Cardenas-Flores, No. 93385-5 (Gonzalez, J., concurring)

64 (prior to admission of a confession, the State must prove prima facie the corpus

delicti ofthe crime);.State v. Lung, 70 Wn.2d 365,372,423 P.2d 72 (1967)

(reviewing trial court's corpus delicti ruling admitting a confession).

The law of constitutional sufficiency of the evidence underwent a sea change

when the Supreme Court established the due process sufficiency model in Jackson

v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Green,

94 Wn.2d at 221-22 (reconsidering the sufficiency of the evidence). Thereafter,

courts reviewed sufficiency challenges as admitting the truth of the State's

evidence and whether, after viewing the evidence in the light most favorable to the

State, any rational trier of fact could have found guilt beyond a reasonable doubt.

State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Notably, we review a

Jackson sufficiency claim under a similar standard of review as a challenge to

corpus delicti. Compare id. ("A claim of insufficiency admits the truth of the

State's evidence and all.inferences that reasonably can be drawn therefrom."), with

Aten, 130 Wn.2d at 658 ("In assessing whether there is sufficient evidence of the

corpus delicti ... , this Court assumes the truth of the State's evidence and all

reasonable inferences from it in a light most favorable to the State.").

These markedly similar standards of review as well as the historical usage of

corpus delicti to challenge sufficiency indicate traditional use of corpus delicti to

challenge the sufficiency of the evidence on appeal has been subsumed by the

5 State v. Cardenas-Flores, No. 93335 .. 5 (Gonzalez, J., concurring)

Jackson constitutional due process model. See U.S. CONST. amend. V. To

establish guilt in a criminal case, the State must prove injury, criminal agency, the

defendant's identity, and any statutory elements of a charged crime beyond a

reasonable doubt in order to sustain a conviction. Corbett, 106 Wn.2d at 573-74

(in addition to corpus delicti, "[t]o sustain a conviction, there also must be proof

that the defendant was the actor"); Jackson, 443 U.S. at 316-17; In re Winship, 397

U.S. 358,364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).

Corpus delicti therefore is at the heart of a Jackson challenge. In this, the

majority is correct: traditional corpus delicti pertains to sufficiency of the evidence

and may be first raised on appeal-not as an independent corpus delicti claim but

as a constitutional sufficiency challenge under Jackson. See majority at 8-14;

State v. Alvarez, 128 Wn.2d 1, 9-10, 904 P.2d 754 (1995); RAP 2.S(a).

Washington courts have not explicitly recognized the assimilation of the

traditional corpus delicti rule by constitutional due process claims. Cf United

States v. Brown, 617 F.3d 857, 861-62 (6th Cir. 2010) (noting the development of

modern sufficiency of the evidence rules and the tension between corpus delicti

and Jackson). Our failure to do so may be due to the fact that the evidentiary

corroboration rule continues to exist. See Angulo, 148 Wn. App. at 648-52.

Moreover, until the current case, this court has never been asked whether the

evidentiary corroboration rule may be first raised on appeal. This is likely because

6 State v. Cardenas-Flores, No. 93385-5 (Gonzalez, J., concurring)

defense counsel generally challenge the issue at trial, thus preserving it for appeal.

See, e.g., State v. Stuhr, l Wn.2d 521, 524, 96 P.2d 479 (1939) (defendant moved

to dismiss at trial for failure to prove the alleged crime); State v. Goranson, 67

Wn.2d 456, 458-59, 408 P.2d 7 (1965) (dismissing the case for failure to prove

corpus delicti at the close of State's evidence); Corbett, l 06 Wn.2d at 571

(dismissing charges at trial for failure to prove corpus delicti); Ray, 130 Wn.2d at

676 (reviewing trial court's ruling that the State established corpus delicti); Aten,

130 Wn.2d at 654 (defendant moved to exclude confession and dismiss the

charges); State v. Brockob, 159 Wn.2d 311, 320, 322, 150 P.3d 59 (2006) (defense

counsel raised corpus delicti at trial); Dow, 168 Wn.2d at 247 (defendant moved to

exclude statements for lack of corpus delicti). When argued below, the Court of

Appeals has consistently held that the corroboration rule is strictly evidentiary and

must be preserved. E.g., State v. C.D. W., 76 Wn. App. 761, 762-63, 887 P.2d 911

(1995); State v. Page, 147 Wn. App. 849, 855, 199 P.3d 437 (2008); State v.

McConville, 122 Wn. App. 640, 648-50, 94 P.3d 401 (2004); State v. Dodgen, 81

Wn. App. 487,492,915 P.2d 531 (1996); State v. Grogan, 147 Wn. App. 511,

514-15, 195 P.3d 1017 (2008), ajf'd on remand, 158 Wn. App. 272,246 P.3d 196

(2010). 2 In light of Jackson, an independent corpus delicti sufficiency claim exists

2 The majority notes that we stayed State v. Grogan, a case in which the defendant did not raise corpus delicti at trial, pending this court's resolution in Dow. Majority at 15 (citing Grogan, 147 Wn. App. 511). We remanded Grogan for reconsideration in light of Dow, State v. Grogan, 168 7 State v. Cardenas-Flores, No. 93385-5 (Gonzalez, J., concurring)

only as an artifact of our state's common law, and it should be respectfully retired

to the annals of history.

Turning to the case at hand, I depart from the majority's characterization of

corpus delicti as tantamount to a sufficiency of the evidence claim that can be

raised for the first time on appeal. 3 Majority at 6-8. To reach this conclusion, the

majority relies in large part on this court's language in Dow, 168 Wn.2d at 249,

stating that corpus delicti is a rule both of admissibility and sufficiency. Ignoring

Jackson's assimilation of traditional corpus delicti, the majority's reasoning here

would be correct.

But, Dow does not exist in a vacuum. To properly understand the decision

and how it integrates into our larger jurisprudence on this subject, we must

Wn.2d 1039, 234 P.3d 169 (2010), and upon review, the Court of Appeals reached the unpreserved corpus delicti challenge. The majority points to this decision to reach the unpreserved claim as evidence that under Dow, corpus delicti can be raised first on appeal. Majority at 15. This is a remarkable interpretation of a remand order, which required reconsideration only in light of Dow. Order, State v. Grogan, No. 82609-9 (Wash. June 2, 2010). It did not direct the Court of Appeals to reach the unpreserved error, and the order did not explain our reasoning. Therefore, it holds no precedential weight here. See WASH. CONST. art. IV, § 2 ("[i]n the determination of causes all decisions of the court shall be given in writing and the grounds of the decision shall be stated"). 3 Despite the repeated declarations from this court that corpus delicti is not constitutionally required, Dow, 168 Wn.2d at 249 (citing Corbett, 106 Wn.2d at 576), the majority functionally treats a corpus delicti claim as a due process sufficiency of the evidence claim. Presumably, under the majority's analysis, had Cardenas-Flores presented a meritorious corpus delicti claim, her conviction would have been reversed and dismissed with prejudice and double jeopardy attaching thereafter. See generally majority at 6-24. The majority fails to recognize the potential consequences of this conclusion for petitioners seeking collateral review. If indeed corpus delicti is akin to a due process sufficiency claim that may be raised for the first time on review, a personal restraint petitioner may potentially avoid the one-year time bar under RCW 10.73.090(]) by claiming an exception. See RCW 10.73.100(3)-(4). 8 State v. Cardenas-Flores, No. 93385-5 (Gonzalez, J., concurring)

examine Dow in light of Jackson. Thus, Dow's language equating corpus delicti

with admissibility and sufficiency conflates corpus delicti' s traditional role with

the current corroboration rule. Id. This conflation is easily made, as the Dow court

had not yet recognized Jackson and its effects on Washington's sufficiency law.

The opinion goes on to explain that "our corpus delicti cases have always required

sufficient evidence independent of a defendant's confession to support a

conviction." Id. at 254. Because Jackson regulates sufficiency claims, Dow

correctly holds that a conviction based on insufficient evidence cannot stand. 4

Importantly, the question we must answer today-whether the corroboration

rule may be raised for the first time on appeal-was not before the Dow court. In

that case, the defendant sought at trial to exclude statements he made to the police

on the ground that the State failed to satisfy corpus delicti, thus preserving the

issue for review. Id. at 247. Though the majority dismisses this "procedural

difference" as "immaterial," majority at 14, its analysis fails to recognize the

critical fact that Jackson has subsumed corpus delicti' s sufficiency role. A

reexamination of our case law to accommodate this critical fact shows that the

4 In addition, the opinion's discussion ofRCW 10.58.035 as relating only to admissibility, Dow, 168 Wn.2d at 253, also correctly applies to the current corroboration rule. See also RCW 10.58.035(4) ("Nothing in this section may be construed to prevent the defendant from arguing ... that the evidence is otherwise insufficient to convict."). That the "State must still prove every element of the crime charged by evidence independent of the defendant's statement" is further explained as referring to the State's burden of proving all elements of the charged crime beyond a reasonable doubt. Dow, 168 Wn.2d at 254. 9 State v. Cardenas-Flores, No. 93385-5 (Gonzalez, J., concurring)

"procedural difference" between the current case and our decision in Dow is hardly

immaterial and cannot be so summarily dismissed. Thus, properly understood,

Dow demonstrates that corpus delicti presently exists only within the Jackson

constitutional due process model, and that the common law corroboration rule

exists post-Jackson to challenge the admissibility of a confession.

In addition to reevaluating our corpus delicti case law taking Jackson into

consideration, we must similarly reexamine the policy rationales underlying the

rule .. The purpose of the corroboration rule is to prevent convictions based solely

on uncorroborated confessions. Majority at 19 (citing Dow, 168 Wn.2d at 249).

According to the majority, admitting a false confession without an objection at trial

would not serve this goal because on review, the court would accept the confession

as true. Id. at 19-20 (citing KENNETH S. BROUN ET AL., McCORMICK ON EVIDENCE

§ 145, at 805 (7th ed. 2013)).

But safeguards exist to protect against this situation. Objecting to corpus

delicti at trial allows the trial judge to determine the admissibly of a confession.

We rely on a trial judge's knowledge and experience to evaluate the corroborative

evidence presented and make an evidentiary ruling to admit or exclude a

confession. See, e.g., State v. Mason, 160 Wn.2d 910, 926, 162 P.3d 396 (2007)

(describing the trial judge as an evidentiary "gatekeeper"). Should the defense

attorney fail to raise a corroboration rule objection at trial, the defendant is not left

10 State v. Cardenas-Flores, No. 93385-5 (Gonzalez, J., concurring)

without recourse. The defendant may raise corpus delicti under sufficiency of the

evidence and under ineffective assistance of counsel. See Salinas, 119 Wn.2d at

201 (reviewing claims for insufficient evidence); C.D. W., 76 Wn. App. at 764-65

(reviewing ineffective assistance of counsel for failure to raise corpus delicti).

Should a defendant prevail on an ineffective assistance claim, the remedy will be a

new trial, C.D.W., 76 Wn. App. at 764-65, at which point the defendant could

bring a corroboration rule challenge and move to dismiss the case. See Dow, 168

Wn.2d at 254-54 (noting the trial court may dismiss a charge for insufficient

evidence (citing State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986))).

Furthermore, because the majority does not recognize the changed landscape

of our corpus delicti case law under Jackson, it does not acknowledge the practical

goals of the corroboration rule such as encouraging parties to make timely

objections, providing the trial judge an opportunity to address the issue before it

becomes an error on appeal, and promoting the important policies of economy and

finality. State v. O'Jlara, 167 Wn.2d 91, 98,217 P.3d 756 (2009). The trial court

should be allowed to correct an error in order to avoid the time and expense of an

unnecessary appeal if possible. 2A KARL B. TEGLAND, WASHINGTON PRACTICE,

RULES PRACTICE RAP 2.5, at 213 (8th ed. 2014) (citing State v. Scott, 110 Wn. 2d

682, 757 P.2d 492 (1988)); McCORMICK, supra,§ 145, at 805 (admissibility

11 State v. Cardenas-Flores, No. 93385-5 (Gonzalez, J., concurring)

requirement encourages the trial judge to scrutinize nonconfession evidence prior

to the prosecution proving a confession).

This approach also precludes counsel from attempting to gain a tactical

advantage by allowing unknown errors to go undetected and then seeking a second

trial if the first decision is adverse to the client. And it requires that the State

establish admissibility of the defendant's confession before it is admitted, thereby

avoiding the possibility that the jury would hear the confession, only to be later

asked to set it aside and to determine whether the government's remaining

evidence is sufficient to establish the corpus delicti. "'One might doubt whether

jurors, having heard the defendant's confession to a heinous crime, could

dispassionately discharge this duty."' Langevin v. State, 258 P.3d 866, 870

(Alaska Ct. App. 2011) (quoting Dodds v. State, 997 P.2d 536, 541 (Alaska Ct.

App. 2000)).

While insufficient evidence claims had once been brought under traditional

corpus delicti, the Jackson model has replaced this procedural pathway for

appellate review. Consequently, such corpus delicti claims no longer exist

independently. The corroboration rule, however, exists post-Jackson in order to

regulate the admissibility of a defendant's confession. A corroboration challenge,

like any evidentiary objection, must be raised at trial to preserve it for review.

12 State v. Cardenas-Flores, No. 93385-5 (Gonzalez, J., concurring)

Here, Cardenas-Flores failed to object and therefore she has waived her right to

raise the issue on appeal.

With these observations, I join the majority in result.

13 State v. Cardenas-Flores, No. 93385-5 (Gonzalez, J., concurring)

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