STATE v. DOW No. 81243-8.
227 P.3d 1278 (2010)
168 Wash.2d 243
STATE of Washington, Respondent, v. Keith Ian DOW, Petitioner.
Supreme Court of Washington, En Banc.
Decided February 11, 2010.
John A. Hays, Attorney at Law, Longview, WA, for Petitioner.
Amie L. Hunt, Cowlitz County Prosecutor's Office, Kelso, WA, for Respondent.
C. JOHNSON, J.
¶ 1 This case involves a challenge to the application of RCW 10.58.035, a statute concerning the corpus delicti rule. RCW 10.58.035 permits a lawfully obtained and otherwise admissible statement of a defendant to be admitted when independent proof of the crime is absent, the alleged victim is dead or incompetent to testify, and the defendant's statement is found trustworthy based on a nonexclusive set of statutory factors that a trial court must consider. The State charged Keith Ian Dow with one count of first degree child molestation. The trial court found the alleged victim, a three-year-old child, was incompetent to testify. The only evidence the State had was Dow's own statement to the police; the State conceded this point to the trial court and again on appeal. The trial court found this statement to be trustworthy based on its application of the nonexclusive factors in RCW 10.58.035(2). Ultimately, the trial court also found the statement to be exculpatory and that the State lacked sufficient evidence to convict. The trial court dismissed Dow's case based on its finding that the statute fell below federal constitutional due process standards required under the federal corpus delicti rule. The Court of Appeals, in a split decision, reversed the trial court. It held that corpus delicti is a judicially created rule that originated in the common law (i.e., it was not constitutionally mandated). However, the Court of Appeals noted that RCW 10.58.035 addresses only admissibility and not sufficiency, thereby leaving intact the requirement that a defendant may not be convicted based on his or her confession alone. Although the Court of Appeals majority correctly recognized this principle, it reversed the dismissal and remanded the case to the trial court for a new hearing. We agree with the Court of Appeals that the statute is constitutional, but we disagree that the case needs to be remanded because, in this case, the State lacked any other evidence to proceed with the prosecution.
¶ 2 The Cowlitz County prosecutor charged Keith Ian Dow with one count of first degree child molestation. At the time of the alleged offense, the child was three. Though the child was four by the time of the trial, the court found and the State conceded that the child was incompetent to testify and that her statements to others about the alleged offense were inadmissible. No persons other than Dow and the child were present at the time of the alleged offense.
¶ 3 During a recorded police interview, Dow made statements in which he recounted the events surrounding the alleged offense. The trial court found these statements to be exculpatory and not an admission. The State sought to introduce Dow's statements as substantive evidence that he committed the crime charged. Dow moved to exclude these statements, arguing they were inadmissible for lack of corpus delicti.
¶ 4 The State conceded that, without the victim's statement, it lacked any evidence independent of Dow's statement to establish the corpus delicti. But the State argued Dow's statements were admissible under RCW 10.58.035, a statutory modification of the corpus delicti rule applicable where the victim is dead or incompetent to testify. The trial court held a hearing and entered findings on the admissibility of Dow's statement.
¶ 5 In findings of fact (FF) 3, the trial court stated: "The court had reviewed the evidence available to the state, which includes the transcript of an interview ... with the defendant, which the state seeks to admit into evidence against the defendant. The state concedes there is no other available evidence against the defendant in this case." Clerk's Papers at 5-6. In FF 6, after it reviewed the transcript, the trial court found the contents of the defendant's statement
¶ 6 In its written conclusions of law, the trial court found that, notwithstanding the statute, the State must at least satisfy the corroboration standard adopted in Opper v. United States,
¶ 7 The Court of Appeals reversed in a split, published decision. State v. Dow, 142 Wn.App. 971,
¶ 8 Is RCW 10.58.035 constitutional, or does it impermissibly erode the requirements of the corpus delicti doctrine?
STANDARD OF REVIEW
¶ 9 Generally, we review a trial court's decision of whether evidence is admissible for abuse of discretion. State v. Wade,
¶ 10 The corpus delicti doctrine generally is a principle that tests the sufficiency or adequacy of evidence, other than a defendant's confession, to corroborate the confession. State v. Brockob, 159 Wn.2d 311, 327-28,
¶ 11 Here, the parties first dispute whether the corpus delicti rule is constitutionally mandated. We have previously recognized that Washington's corpus delicti rule, particularly the requirement that the State present independent, corroborative evidence that the offense occurred, is judicially created and not constitutionally mandated. In Corbett, we noted that "[u]nlike the principles enunciated in Miranda v. Arizona, [
¶ 12 In Opper, the United States Supreme Court held that while the State is not required to establish corpus delicti independently of a defendant's statement, it is required to show the defendant's statement is reliable before it can be admitted. 348 U.S. at 93-94, 75 S.Ct. 158. The Opper Court recognized the corroboration requirement was based on an expansion of the common law and general concepts of justice. Put otherwise, the federal corroboration rule is judicially created, not constitutionally mandated. Indeed, federal case law weighs heavily against finding that the federal corroboration rule is constitutionally based. See, e.g., United States v. Lopez-Alvarez,
¶ 14 In 2003, the legislature modified the corpus delicti rule when it enacted RCW 10.58.035. Where a rule is judicially created and/or emanates from the common law, the legislature is generally free to codify or eliminate such a rule to the extent it does not violate due process standards or other constitutional principles. As it pertains to this case, RCW 10.58.035, as written, does not implicate any constitutional issues of concern.
¶ 15 The corroboration rule enunciated in Opper signaled a departure from the previously more stringent federal corpus delicti rule. Generally, the corpus delicti rule prevents a defendant from being convicted based on his or her confession alone and requires independent evidence sufficient to establish every element of the crime charged. The Opper court stated the following when it enunciated the federal corroboration rule:
348 U.S. at 93, 75 S.Ct. 158 (most emphasis added). In other words, the Opper corroboration rule creates an alternative means to prove the corpus delicti. It does not, however, permit a defendant's confession to be the sole evidence used to support a conviction. More importantly, the corpus delicti rule is both a rule of admissibility and a rule of sufficiency.
¶ 16 Dow, argues the legislature codified the "trustworthiness" standard from Opper when it enacted RCW 10.58.035. He asserts that in doing so, the State is required to establish independent corroborative evidence to support a conviction of the crime charged before the trial court can admit his statement into evidence. RCW 10.58.035 provides:
¶ 17 Judicially, we have rejected the Opper rule. See State v. Aten,
Aten, 130 Wash.2d at 656,
¶ 18 In contrast to the Opper rule and the rule we enunciated in Aten, the Court of Appeals correctly pointed out that RCW 10.58.035 only addresses admissibility and not sufficiency. Dow, 142 Wash.App. at 984,
¶ 19 The statute recognizes as much. Subsection (4) provides that "[n]othing in this section may be construed to prevent the defendant from arguing to the jury or judge in a bench trial that the statement is not trustworthy or that the evidence is otherwise insufficient to convict." RCW 10.58.035 (emphasis added). This subsection establishes that the legislature has left intact the requirement that a defendant cannot be convicted without sufficient evidence to establish every element of the crime, which is consistent with the corpus delicti doctrine and our cases. Considering RCW 10.58.035's plain language, we hold that any departure from the traditional corpus delicti rule under RCW 10.58.035 pertains only to admissibility and not to the sufficiency of evidence required to support a conviction. The corpus delicti doctrine still exists to review other evidence for sufficiency, i.e., corroboration of a confession. That is, the State must still prove every element of the crime charged by evidence independent of the defendant's statement. See Brockob, 159 Wash.2d at 328,
¶ 20 Here, the State argues that Dow's statement was admissible because the trial court found the statement trustworthy based on the nonexclusive factors set out in RCW 10.58.035(2). Because we
¶ 21 The State concedes it does not have any evidence corroborating or contradicting the facts set out in the statement, including any evidence related to the elements of the offense. See Br. in Resp. to Pet. for Review at 13. The State also represented to the trial court that it lacked any direct evidence that sexual contact actually occurred.
¶ 22 Considering the State's concessions on these points, the Court of Appeals noted that the trial court could have dismissed the charge for insufficient evidence under State v. Knapstad,
¶ 23 We reverse the Court of Appeals decision to remand to the trial court and affirm the trial court's dismissal of the State's case.
WE CONCUR: BARBARA A. MADSEN, C.J., SUSAN OWENS, MARY E. FAIRHURST, GERRY L. ALEXANDER, RICHARD B. SANDERS, DEBRA L. STEPHENS, and TOM CHAMBERS, JJ.
J.M. JOHNSON, J. (concurring).
¶ 24 I concur in the majority's judgment only because no shred of evidence besides the defendant's confession corroborates the abhorrent crime of which he has been accused. I write separately, however, to emphasize the heightened need for substantiating evidence in sexual assault cases involving very young victims who are likely to be found incompetent to testify.
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