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 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
AND PROCEDURAL HISTORY
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
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 reviewed C.A.'s X-rays and agreed with
the emergency room doctor that everything looked normal.
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. 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
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 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
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 when she was told that her son's leg had
been fractured, she said she knew it was because of her
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.
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. The appeals court
stated that a corpus delicti challenge must be preserved
because it "is a judicially created rule of evidence[J .
. . 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.
filed a petition for review in this court, which we granted.
State v. Cardenas-Flores, 186 Wn.2d 1017, 383 P.3d
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.
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
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 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).
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. of Resp't at 15. We
believe that Cardenas-Flores has the better argument based on
our case law, the United States Supreme Court's case law,
and the underlying purpose of the corpus delicti rule.
While Corpus Delicti Contains Traces of an Admissibility
Rule, It Is Principally a Rule of Sufficiency
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 [confession] actually
occurred." Id. at 328. 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 also 1
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.").
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
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.
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 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 "[b]ut 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).
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 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." 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).
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 247. The
State conceded it had no other corroborating evidence, but
argued that the defendant's statements were admissible
under RCW 10.58.035. Id. After finding the statements
were exculpatory and insufficient to convict, the trial court
dismissed the case. Id. at 248.
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.
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 "both a rule of admissibility and a
rule of sufficiency." Id. at
249-51. 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
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. 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).
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.
United States Supreme Court Case Law Embracing a
"Trustworthiness" Standard Recognizes Corpus
Delicti as a Rule of Sufficiency
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" rule and the
United States Supreme Court's "trustworthiness"
rule. See id. at 328-29.
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
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 1 Broun, supra, § 147, at
813-14. Under this federal standard, the Government
"need only present independent evidence sufficient to
establish that ...