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State v. Cardenas-Flores

Supreme Court of Washington, En Banc

August 17, 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 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.


         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 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 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 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 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.

         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).


         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 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. 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.

         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 [confession] 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 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.").

         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 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 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).

         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 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 247. The State conceded it had no other corroborating 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 "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. 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.

         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" rule 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).

         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 1 Broun, supra, ยง 147, at 813-14. Under this federal standard, the Government "need only present independent evidence sufficient to establish that ...

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