State Of Washington v. Victor W. Sprague ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
February 9, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53370-7-II
Respondent,
v.
VICTOR WAYNE SPRAGUE, PUBLISHED OPINION
Appellant.
GLASGOW, J.—Officers executed a search warrant at Victor Wayne Sprague’s apartment
and found about 10 grams of methamphetamine, a scale, plastic grocery store bags, and a pipe in
his living room. He was charged with one count of possession with intent to deliver
methamphetamine within 1,000 feet of a school bus route stop. At a jury trial, the State relied on
the evidence recovered from Sprague’s apartment, as well as incriminating statements Sprague
made to the investigating officers. The jury found Sprague guilty, and Sprague appeals his
conviction.
Specifically, Sprague argues that the State failed to establish corpus delicti to support the
admission of his incriminating statements and that, without these statements, there was insufficient
evidence to support a conviction for possession with intent to deliver. Sprague also contends that
the trial court erred when it declined to grant Sprague’s motion for a continuance on the morning
of trial, that Sprague’s counsel was constitutionally ineffective, and that cumulative errors
deprived him of a fair trial.
No. 53370-7-II
The corpus delicti analysis requires us to consider whether the evidence also supports a
hypothesis of mere possession. Because officers testified that it is not uncommon for drug users
or addicts to have a scale, and the recovered grocery store bags were not torn into small pieces to
serve as packaging, we conclude that Sprague’s incriminating statements were improperly
admitted under the corpus delicti rule. Even so, considering the evidence in the light most favorable
to the State, sufficient evidence existed to support Sprague’s conviction for possession with intent
to deliver methamphetamine without his incriminating statements. We conclude that the trial court
did not abuse its discretion in denying a continuance, and Sprague was not deprived of effective
assistance of counsel. We need not address his cumulative error claim. We therefore affirm
Sprague’s conviction.
FACTS
I. INVESTIGATION AND ARREST
Officers from the Longview Police Street Crimes Unit executed a search warrant at
Sprague’s apartment. The warrant authorized a search of Sprague’s apartment and person for
“illegal narcotics and related contraband.” Clerk’s Papers (CP) at 2. It did not authorize a search
of Sprague’s cell phone or other electronics.
Officers discovered two small bags of methamphetamine in Sprague’s living room near his
recliner. One bag weighed 8.80 grams and the other weighed 1.41 grams, including the weight of
the bags. The officers located a digital scale with methamphetamine residue and a bundle of plastic
grocery bags, also in the living room. They found a “homemade meth pipe,” “scrapings” from the
pipe, and a metal container with methamphetamine residue. 1 Verbatim Report of Proceedings
(VRP) at 129, 140. They did not find any cash, safes, pay/owe sheets, or weapons.
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During the search of his apartment, Sprague was detained and questioned. After receiving
Miranda1 warnings, Sprague admitted to officers that the methamphetamine belonged to him. He
also admitted to selling small amounts of methamphetamine inside his apartment and in the alley
behind his apartment. Sprague admitted that he typically tears off pieces of plastic grocery bags to
package the methamphetamine.
Sprague was arrested and charged with one count of possession with intent to deliver
methamphetamine. The State added an enhancement for committing this act within 1,000 feet of
a school bus route stop.
II. PRETRIAL MOTIONS REGARDING SPRAGUE’S STATEMENTS
Before trial, Sprague requested a hearing pursuant to CrR 3.5 to determine the admissibility
of his statements to officers. Sprague also filed a motion to dismiss, arguing that the State lacked
the independent evidence necessary to corroborate his incriminating statements and establish the
corpus delicti of possession with intent to deliver.
In his motion to dismiss, Sprague explained that “[a] defendant’s incriminating statement
alone is insufficient to establish that a crime took place.” CP at 13 (citing State v. Brockob, 159
Wn.2d 311, 328, 150 P.3d 59 (2006)). Under the corpus delicti rule, the State must present
independent evidence in the form of “prima facie corroboration of the crime described in the
incriminating statement.” Id. (citing Brockob, 159 Wn.2d at 328). In part, Brockob established that
the State’s independent evidence “‘must be consistent with guilt and inconsistent with a[]
hypothesis of innocence.’” 159 Wn.2d at 329 (alteration in original) (internal quotation marks
omitted) (quoting State v. Aten, 130 Wn.2d 640, 660, 927 P.2d 210 (1996)).
1
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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No. 53370-7-II
At a pretrial hearing on the motion, Sprague argued that “the only evidence independent of
[] Sprague’s admissions beyond his mere possession all show[ed] personal use,” not an intent to
deliver. 1 VRP at 18. Specifically, Sprague argued that the evidence officers found was in a private
residence and it was all located in one area, near a recliner. Officers found one scale near the
recliner “which could be for personal use.” 1 VRP at 17. Sprague emphasized that in most cases
finding sufficient evidence to support an inference of an intent to deliver, there is a large amount
of cash, and there was no cash or other method of payment recovered from Sprague’s apartment.
The drugs were not divided into smaller amounts or packaged for sale. A plastic grocery store bag
was “lining a trash can . . . not ripped into small pieces.” Id. There were no safes or locked
containers, no documents or communications reflecting sales, and no observed transactions.
The State responded to Sprague’s motion by arguing that its independent evidence was
“sufficient to support a conviction for possession with intent to deliver” and, therefore, it must be
sufficient to establish corpus delicti. CP at 21. Relying on the standard for sufficient evidence to
support a conviction of possession with intent to deliver, the State reasoned that it only needed to
show possession plus “‘one additional factor suggestive of intent.’” CP at 20 (quoting State v.
Whalen, 131 Wn. App. 58, 63, 126 P.3d 55 (2005), and relying on State v. Hotchkiss, 1 Wn. App.
2d 275, 280, 404 P.3d 629 (2017)). The State reasoned that under Hotchkiss “[a] conviction
requires proof beyond a reasonable doubt; the corpus delicti rule requires only prima facie
evidence. Evidence that would support a conviction must also satisfy the corpus delicti rule.” CP
at 21. The State pointed to the presence of the “scale . . . other items with methamphetamine residue
on them, and plastic grocery-style bags” as additional evidence suggestive of intent. CP at 20-21.
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The trial court denied Sprague’s motion to dismiss. The trial court discussed its
understanding of the relevant case law and determined that Hotchkiss provides the controlling
standard. The trial court recognized that the Brockob court’s corpus delicti analysis takes into
account whether there is a hypothesis consistent with innocence. But the trial court explained that
in Hotchkiss, this court recognized that “if [it] applied [the Brockob analysis], the rule of some
amount of drugs plus one additional corroborating factor would be swallowed up by the [Brockob]
rule.” 1 VRP at 22. So the trial court looked for “evidence of the drugs plus one additional factor[]
. . . suggestive of the intent to [deliver].” Id.The trial court determined that the pipe, as well as the absence of money, safes, and
pay/owe sheets, suggested personal use. It found that the large amount of methamphetamine and
the packaging material in the form of grocery bags suggested an intent to deliver. As for the scale,
the trial court concluded that it could support inferences of both personal use and an intent to
deliver. The trial court denied the motion to dismiss, concluding the corpus delicti rule was
satisfied by the amount of methamphetamine plus two additional factors—packaging material and
a scale.
The trial court acknowledged that, had it instead applied the Brockob court’s analysis, it
would have granted Sprague’s motion. But applying Hotchkiss, the State prevailed.
The trial court held a CrR 3.5 hearing on the morning of trial. It found that the
circumstances of Sprague’s questioning constituted custodial interrogation, but Sprague received
Miranda warnings, understood his rights, and validly waived them. The trial court ruled Sprague’s
statements admissible at trial. It did not revisit the corpus delicti doctrine at the CrR 3.5 hearing.
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III. DISCLOSURE OF A PRIOR CONTROLLED BUY
On the morning of trial, the State informed Sprague’s counsel that officers had conducted
a controlled buy of methamphetamine from Sprague prior to executing the warrant underlying this
case. The prosecutor explained that she was not going to use this information at trial because the
case law is “pretty clear that prior deliveries are not admissible to prove intent.” 1 VRP at 32. She
told the trial court she “hadn’t intended on using [this information] as anything but essentially
leverage in negotiating the current, pending case.” Id. The prosecutor presented a new plea offer
to Sprague—if Sprague decided to plead guilty before trial to “something besides a possession,”
then the State would not file a new charge of possession with intent to deliver based on the
controlled buy. Id.Defense counsel requested a continuance, arguing that she needed time to investigate the
controlled buy. Counsel argued that the new information affected “how [the defense would]
approach the whole case” because the controlled buy involved the same police unit that executed
the warrant underlying this case, it potentially involved the same informant, and an additional
charge could affect Sprague’s offender score and change his sentencing risk. 1 VRP at 30.
The trial court granted a “quick break” and asked the prosecutor to obtain the new probable
cause report for defense counsel. 1 VRP at 33. The trial court recognized that this information was
necessary for counsel to adequately advise her client about his options in advance of negotiations.
After the break, defense counsel again asked for a continuance, citing Sprague’s
constitutional rights to effective representation and to present a defense. The trial court rejected
the argument that this information impacted Sprague’s ability to present a defense because the
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controlled buy occurred on a different date, raised a “distinct factual pattern,” and was not relevant
to the allegations in this case. 1 VRP at 37.
As for defense counsel’s argument that she would be unable to provide competent
representation, the trial court granted another short recess so that defense counsel could do
additional research on how a new charge might impact Sprague’s offender score and sentencing
risk. The trial court remarked that time pressure was not uncommon in plea negotiations. The trial
court also waited to swear in the jury until after lunch so that defense counsel could have the lunch
hour to confer with her client.
Thus, the trial court declined to grant a continuance, but it did grant multiple short recesses
so that defense counsel could review the probable cause statement with Sprague, research his
possible sentence if convicted of this new charge, and discuss his options.
IV. JURY TRIAL
Sprague rejected the plea offer. At trial, three of the officers who executed the warrant at
Sprague’s apartment testified: Jordan Sanders, Benjamin Mortensen, and Calvin Ripp. The officers
testified that they recovered two bags containing a total of approximately 9 to 10 grams of
methamphetamine. The officers agreed that this amount is consistent with an intent to deliver.
Sanders stated that a “half-ounce[2] would be appropriate for selling, not personal use.” 1 VRP at
100. He said that although “[e]ach person is going to be different, . . . typically we see either .2 of
a gram or a half of gram of -- is a general use . . . [and] it could be a couple times a day or one time
a day.” 1 VRP at 101. Mortensen confirmed that “it’s common for people in this area to use -- at
2
A half of an ounce is about 14 grams.
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No. 53370-7-II
a time use a tenth of a gram to two-tenths of a gram per time. . . . And it wouldn’t be uncommon
for somebody to do this two or three times a day.” 1 VRP at 123.
The officers also testified that they recovered a scale with methamphetamine residue, a
“homemade meth pipe,” a metal container with methamphetamine residue, and “scrapings” from
the pipe. 1 VRP at 129, 140. Mortensen stated that “the majority of the evidence was located near
one chair [Sprague’s recliner]” and explained that while a scale can be an indication that someone
is dealing, “it’s not uncommon for a user or an addict to have a scale.” 1 VRP at 146, 150. The
officers told the jury that they did not find any log entries, ledgers or receipts, cash, safes, or
weapons, all of which is evidence that typically suggests an intent to deliver.
When asked about common packaging for methamphetamine in the area, Sanders testified,
“Typically, we see it in a Ziploc-type bag, small. . . . We also find grocery bags like you’d find at
Fred Meyer[] or a Safeway Store where they’re torn off” and the ends are tied or burned together.
1 VRP at 95. Mortensen agreed that plastic grocery bags are “commonly used for packaging
material” where pieces are torn or cut off the bag. 1 VRP at 139. On cross-examination, Sanders
clarified that the grocery bags found in Sprague’s apartment “were torn but not [torn] into small
pieces.” 1 VRP at 103. Ripp recalled seeing “bundles of baggies . . . [that] were whole,” 1 VRP at
115, and Mortensen testified to logging bags into evidence that were “full” rather than “ripped-
up,” 1 VRP at 150-51. Defense counsel pointed out that a plastic grocery bag was being used to
line Sprague’s garbage can.
Sanders also testified to the incriminating statements Sprague made to the officers. Sanders
recalled that when asked where his methamphetamine was, Sprague pointed officers to the area
“by the recliner.” 1 VRP at 99. Sprague admitted to purchasing a half ounce of methamphetamine
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No. 53370-7-II
every few days, using some of that amount himself, and selling some of it to a few people. Sanders
also testified that Sprague said he would tear up grocery bags to package the methamphetamine.
After the State rested, Sprague renewed his motion to dismiss for insufficient evidence to
establish corpus delicti, this time relying on testimony presented at trial. Sprague asked the trial
court to reconsider in light of Washington Supreme Court cases that require the independent
corroborating evidence to be “consistent with guilt and inconsistent with the hypothesis of
innocence.” 2 VRP at 183-84 (discussing State v. Cardenas-Flores, 189 Wn.2d 243, 264, 401 P.3d
19 (2017); Brockob, 159 Wn.2d at 329; Aten, 130 Wn.2d at 660). The trial court declined to
reconsider its prior ruling.
The jury was instructed that if it was not satisfied beyond a reasonable doubt that Sprague
was guilty of possession with intent to deliver methamphetamine, then it should consider whether
he was guilty of the “lesser crime” of possession of methamphetamine. CP at 86.
During closing argument, defense counsel asked the jury to find Sprague guilty of the
lesser included offense of possession of methamphetamine and argued that “this is a simple case
about simple possession.” 2 VRP at 221. The State reiterated that the evidence presented included
9 to 10 grams of methamphetamine, a scale, and plastic grocery bags. The State also relied on
Sprague’s statements to the officers, reminding the jury that “the defendant himself said [‘]I sell
drugs.[’]” 2 VRP at 223.
The jury found Sprague guilty of one count of possession with intent to deliver
methamphetamine. The jury also found that Sprague committed this offense within 1,000 feet of
a school bus route stop.
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ANALYSIS
I. CORPUS DELICTI
Sprague argues there was insufficient evidence to establish the corpus delicti of possession
with intent to deliver and, therefore, his statements to officers were inadmissible. And without the
incriminating statements, Sprague argues there was insufficient evidence to support a conviction
for possession with intent to deliver. We agree that there was insufficient evidence to establish the
corpus delicti of possession with intent to deliver because the independent evidence was consistent
with a hypothesis of mere possession. Thus, Sprague’s incriminating statements were improperly
admitted. But we conclude that even without Sprague’s incriminating statements, there was
sufficient evidence to support his conviction.
A. Corpus Delicti in Washington
“Corpus delicti means the ‘body of the crime.’” Brockob, 159 Wn.2d at 327 (internal
quotation marks omitted) (quoting Aten, 130 Wn.2d at 655). The doctrine ensures that the specific
crime described in an incriminating statement “actually occurred.” Id. at 328. “A defendant’s
incriminating statement alone is not sufficient to establish that a crime took place.” Id. (footnote
omitted). For a defendant’s statement to be considered, the State must provide independent
corroborating evidence of the crime described in the statement. Id.
The Supreme Court recently reiterated that corpus delicti is a rule of sufficiency as well as
a rule of evidence. Cardenas-Flores, 189 Wn.2d at 256. In determining the sufficiency of
independent evidence under the corpus delicti rule, “we assume the ‘truth of the State’s evidence
and all reasonable inferences from it in the light most favorable to the State.’” Id. at 264 (quoting
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Aten, 130 Wn.2d at 658). Our review of the sufficiency of the evidence for purposes of corpus
delicti is de novo. State v. Green, 182 Wn. App. 133, 143, 328 P.3d 988 (2014).
In Cardenas-Flores, the Supreme Court also reiterated that Washington has rejected a more
relaxed “trustworthiness” standard adopted by the United States Supreme Court and a majority of
other states, which considers whether there is evidence supporting the trustworthiness of the
defendant’s incriminating statements. 189 Wn.2d at 258. “‘Notably, we are among a minority of
courts that has declined to adopt a more relaxed rule.’” Id. (quoting Brockob, 159 Wn.2d at 328).
Instead, there are three specific requirements for establishing corpus delicti in possession
with intent cases in Washington: (1) “the evidence must independently corroborate, or confirm, a
defendant’s incriminating statement,” (2) the independent evidence “‘must be consistent with guilt
and inconsistent with a[] hypothesis of innocence,’” and (3) the evidence must corroborate “not
just a crime but the specific crime with which the defendant has been charged.” Brockob, 159
Wn.2d at 328-29 (alteration in original) (internal quotation marks omitted) (quoting Aten, 130
Wn.2d at 660). The Brockob court emphasized that Aten “increased the State’s burden” by holding
that “if the evidence supports both a hypothesis of guilt and a hypothesis of innocence, it is
insufficient to corroborate the defendant’s statement.” Id. at 330 (citing Aten, 130 Wn.2d at 660-
61); see also Whalen, 131 Wn. App. at 63 (“[T]he independent evidence must support a logical
and reasonable inference of criminal activity only.”). The Cardenas-Flores court also recited this
principle. 189 Wn.2d at 264. Prima facie corroboration exists where “the independent evidence
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supports a ‘logical and reasonable inference of the facts sought to be proved.’” Brockob, 159
Wn.2d at 328 (internal quotation marks omitted) (quoting Aten, 130 Wn.2d at 656).3
For charges of possession with intent to deliver, corpus delicti requires evidence of an
intent to deliver in addition to evidence of possession. “Mere possession, without more, does not
raise an inference of the intent to deliver.” State v. Cobelli, 56 Wn. App. 921, 925, 788 P.2d 1081(1989). This same concept has been regularly applied to charges of possession with intent to
manufacture. In Brockob, a consolidated case involving three defendants, the court found evidence
that one defendant had stolen between 15 and 30 packages of Sudafed insufficient to establish the
corpus delicti of possession with intent to manufacture. 159 Wn.2d at 332-33. The court explained,
“[T]he mere assertion that Sudafed is known to be used to manufacture methamphetamine does
not necessarily lead to the logical inference that [the defendant] intended to do so, without more.”
Id. at 331-32. The independent evidence “proved only that [the defendant] intended to steal
Sudafed.” Id. at 332; see also Whalen, 131 Wn. App. at 64 (rejecting the State’s argument that a
prima facie case of intent to manufacture was established by the defendant “attempting to shoplift
more pseudoephedrine than he could legally purchase at one time”).
Similarly, in Cobelli, Division One reversed a finding of corpus delicti where the defendant
possessed a small amount of drugs in several baggies and some cash and officers observed the
defendant “carry out a series of short conversations with several ‘clusters’ of people . . . . [in] ‘a
3
The Cardenas-Flores court focused on two elements of corpus delicti, “(1) an injury or loss (2)
caused by someone’s criminal act,” and the court reasoned that in this analysis, mens rea is not
required to satisfy corpus delicti. 189 Wn.2d at 263-64. But Cardenas-Flores involved a charge of
second degree child assault which requires an injury to a particular person. When addressing
corpus delicti in possession with intent cases, the Supreme Court and this court have discussed the
requirements set forth in Brockob. 159 Wn.2d at 328-29; Hotchkiss, 1 Wn. App. 2d at 282-87
(applying Brockob in the majority and concurrence).
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high drug area’ . . . [in a] ‘manner . . . real indicative of what [the officers had] seen before in the
sales and purchase of drugs.’” 56 Wn. App. at 922. Division One observed that “[t]he record in
this case lacks the type of circumstantial evidence often found to raise the inference of an intent to
deliver, such as the observation of an exchange or possession of significant amounts of drugs or
money.” Id. at 924. The court concluded that these circumstances were “no more indicative of an
intent to deliver than they [were] of mere possession.” Id. at 925.
In contrast, the Brockob court held that the corpus delicti of possession with intent to
manufacture was established with respect to one defendant, Gonzales, where officers recovered
ephedrine and two different sizes of coffee filters from the backseat of Gonzales’s car, and it
appeared Gonzales was “working in concert with another person to acquire more than the legal
amount of ephedrine.” 159 Wn.2d at 333. This court held corpus delicti was established in
Hotchkiss, where the majority focused on the test for sufficiency of the evidence and officers
recovered 8.1 grams of methamphetamine and $2,150 in cash from a locked safe. 1 Wn. App. 2d
at 277.
In both of these cases, the independent evidence was “‘consistent with guilt and
inconsistent with a[] hypothesis of innocence.’” Brockob, 159 Wn.2d at 329 (alteration in original)
(internal quotation marks omitted) (quoting Aten, 130 Wn.2d at 660). The presence of coffee filters
is not typically inconsistent with innocence, but the location of the coffee filters in Gonzales’s
backseat alongside ephedrine and their varying sizes, suggested the filters were not being used to
brew coffee. See id. at 321. Further, a forensic scientist testified that “he had rarely seen a
methamphetamine lab that did not use coffee filters.” Id. at 322. Therefore, the presence of the
coffee filters in the car, and the fact that Gonzales was collaborating with another individual to
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procure more than the legal amount of ephedrine, was sufficient to support an inference that
Gonzales intended to manufacture methamphetamine. Id. at 333.
In Hotchkiss, the majority reasoned that a large amount of cash in the defendant’s safe
“technically . . . is not inconsistent with innocence and also could support an inference that [the
defendant] did not have an intent to deliver . . . . [because] the cash could have come from a source
other than selling drugs.” 1 Wn. App. 2d at 282-83. However, prima facie corroboration exists
where “the independent evidence supports a ‘logical and reasonable inference’” that the charged
crime occurred. Brockob, 159 Wn.2d at 328 (internal quotation marks omitted) (quoting Aten, 130
Wn.2d at 656). Where the State presented evidence that Hotchkiss stored over $2,000 in cash in a
locked safe alongside methamphetamine, the logical and reasonable inference was that the cash
and methamphetamine were connected. Although Hotchkiss relied more heavily on the court’s
finding of “‘one additional factor, suggestive of intent,’” its conclusion still satisfied Brockob’s
requirement that the logical and reasonable inference from the evidence be inconsistent with
innocence. Hotchkiss, 1 Wn. App. 2d at 281 (quoting Whalen, 131 Wn. App. at 63).
In sum, under Brockob and subsequent cases applying its requirements, the corpus delicti
of possession with intent to deliver requires evidence—in addition to the amount of the controlled
substance—that supports a logical and reasonable inference of an intent to deliver. Under
Hotchkiss, the evidence can be as little as one fact in addition to the amount of the controlled
substance. The evidence must also be consistent with guilt and inconsistent with a hypothesis of
innocence, a consideration unique to the corpus delicti analysis that is in tension with the principle
that we draw all reasonable inferences in the light most favorable to the State.
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B. Evidence to Support Corpus Delicti for Intent to Deliver
Here, in addition to Sprague’s possession of 9 to 10 grams of methamphetamine, officers
recovered a homemade pipe, a metal container with methamphetamine residue, a scale, and a
bundle of plastic grocery bags.
The amount of methamphetamine alone is insufficient to support an inference of intent to
deliver. Cobelli, 56 Wn. App. at 925. The State does not argue that either the pipe or the metal
container supports an inference that Sprague possessed methamphetamine with an intent to deliver
it, and we agree. Instead, the State relies on the presence of a scale and a bundle of plastic grocery
bags.
Sprague’s possession of a scale could be consistent with both an intent to deliver and
personal use. Mortensen testified that it is “not uncommon for a user or an addict to have a scale”
for personal use. 1 VRP at 150. Although we review this issue de novo, the trial court also
considered the scale to be evidence that was consistent with a hypothesis of mere possession.
The presence of plastic grocery bags could also be consistent with both an intent to deliver
and personal use. Considering the evidence independent of Sprague’s confession, the record does
not clearly indicate that the plastic grocery bags were being used to package methamphetamine for
delivery. The bags were found in the living room, the same room where the methamphetamine was
found, and officers testified that while “[t]ypically” methamphetamine is packaged in small
Ziploc-style bags, plastic grocery bags are also “commonly used” as packaging. 1 VRP at 95, 139.
Individuals may tear or cut off a piece of the bag and then tie it up or melt its ends together. Yet,
the officers all agreed that the plastic grocery bags in Sprague’s apartment were not torn into small
pieces or wrapped around methamphetamine. The grocery bags taken into evidence “were torn but
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not [torn] into small pieces,” “bundles of baggies . . . [that] were whole,” and “full” rather than
“ripped-up.” 1 VRP at 103, 115, 150-51. Sprague was using one of the grocery bags as a garbage
can liner.
The State argues that the combination of a significant amount of methamphetamine, a scale,
and plastic grocery bags stored in the same room as the methamphetamine is sufficient to establish
the corpus delicti of possession with intent to deliver. The State emphasizes that we must view the
evidence in the light most favorable to the State and the evidence need only support a logical and
reasonable inference of the facts sought to be proved. In prior cases, both a scale and packaging
materials located near the controlled substances have been factors that weighed in favor of finding
an intent to deliver.
But the corpus delicti analysis also requires us to consider whether the evidence is
consistent with a hypothesis of innocence of the alleged crime. There must be sufficient evidence
to corroborate the specific crime charged. So here, where the crime charged is possession with
intent to deliver, we must consider whether the evidence is consistent with a hypothesis of mere
possession. There was no evidence of a large amount of cash, safes, pay/owe sheets, weapons, or
an exchange. In light of Mortensen’s testimony that it is not uncommon for a scale to be employed
for personal drug use, and testimony regarding the relatively good condition of the plastic grocery
bags, the presence of the scale and grocery bags here is “no more indicative of an intent to deliver
than . . . mere possession.” Cobelli, 56 Wn. App. at 925.
The fact that officers have seen grocery bags used as packaging before is insufficient to
support an inference that these grocery bags were being used as packaging. In Cobelli, the
circumstances were insufficient to support an inference of an intent to deliver, even though the
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defendant’s behavior was “‘real indicative of what [the officers had] seen before in the sales and
purchase of drugs.’” 56 Wn. App. at 922. Similarly, in Brockob, the court held that “the mere
assertion that Sudafed is known to be used to manufacture methamphetamine” was insufficient to
support an inference of an intent to manufacture. 159 Wn.2d at 331-32. Unlike the coffee filters in
Gonzales’s backseat and the cash locked in Hotchkiss’s safe, the bundle of grocery bags in
Sprague’s living room fails to support “a logical and reasonable inference of criminal activity
only.” Whalen, 131 Wn. App. at 63 (emphasis added). It is common for individuals to bundle
plastic grocery bags in their homes and to use them as garbage can liners, whereas it is uncommon
for individuals to carry multiple sizes of coffee filters in the backseats of cars.
The evidence here is insufficient to establish corpus delicti of the specific crime of
possession with intent to deliver. Aten, Brockob, and Cardenas-Flores require independent
corroborating evidence that is inconsistent with innocence of the specific crime charged, and the
independent evidence here is consistent with a hypothesis of mere possession.
Sprague’s incriminating statements were improperly admitted. We must therefore turn to
whether there was sufficient evidence, absent the incriminating statements, to support Sprague’s
conviction.
II. SUFFICIENCY OF THE EVIDENCE
Sprague claims that “aside from his statements, the evidence showed that [he] possessed
methamphetamine for his personal use.” Br. of Appellant at 14. Viewing the evidence in the light
most favorable to the State, we disagree and conclude that the remaining evidence was sufficient
to support Sprague’s conviction beyond a reasonable doubt.
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The test for determining the sufficiency of the evidence is whether “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.” Cardenas-Flores, 189 Wn.2d at 265; see also Brockob,
159 Wn.2d at 338, 341 (applying this test after excluding the defendant’s confession for failure to
establish corpus delicti).4 A court’s decision on the issue of corpus delicti “permeates any
conclusion on sufficiency of the evidence.” Aten, 130 Wn.2d at 667. But evidence that was
insufficient to establish corpus delicti may nonetheless be sufficient to sustain a conviction where
the defendant’s incriminating statement “did not add significantly to the quantum of evidence
against him.” Brockob, 159 Wn.2d at 341; see also Hotchkiss, 1 Wn. App. 2d at 286 (Worswick,
J., concurring).
When the charge is possession with intent to deliver, evidence of intent is typically
circumstantial. State v. Davis, 79 Wn. App. 591, 594, 904 P.2d 306 (1995). Circumstantial
evidence is not any less reliable or probative than direct evidence. State v. Kintz, 169 Wn.2d 537,
551, 238 P.3d 470 (2010). “However, inferences based on circumstantial evidence must be
reasonable and cannot be based on speculation.” State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318(2013). Evidence that a defendant had the intent to deliver must be “sufficiently compelling” that
the intent “‘is plainly indicated as a matter of logical probability.’” Davis, 79 Wn. App. at 594
(internal quotation marks omitted) (quoting State v. Kovac, 50 Wn. App. 117, 120, 747 P.2d 484(1987)).
4
Neither party argues, nor do we address, whether admission of the incriminating statements was
harmless error.
18
No. 53370-7-II
“Mere possession of a controlled substance, including quantities greater than needed for
personal use, is not sufficient to support an inference of intent to deliver.” State v. O’Connor, 155
Wn. App. 282, 290, 229 P.3d 880 (2010). Further, an officer’s opinion on what quantity of a
controlled substance is “normal for personal use” cannot alone support an inference of intent to
deliver. State v. Hutchins, 73 Wn. App. 211, 217, 868 P.2d 196 (1994). In reviewing the evidence
necessary to convict in possession with intent cases, the Brockob court affirmed that “‘at least one
additional factor, suggestive of intent, must be present.’” 159 Wn.2d at 337 (quoting State v.
Moles, 130 Wn. App. 461, 466, 123 P.3d 132 (2005)).
The presence of a scale is relevant circumstantial evidence suggesting an intent to deliver,
although it is usually considered in conjunction with other circumstantial evidence that is similarly
suggestive of such intent. For example, in O’Connor, Division Three relied on a large amount of
marijuana, the presence of a scale, and “the sophistication of the [defendant’s] grow operation” in
holding that the evidence was sufficient to sustain a conviction for possession with intent to deliver.
155 Wn. App. at 291. Similarly, in State v. Lane, 56 Wn. App. 286, 297-98, 786 P.2d 277 (1989),
Division Three affirmed a conviction for possession with intent to deliver based on evidence of a
large amount of cocaine, the presence of a scale, and the presence of a large amount of cash.
The presence of packaging material is also relevant circumstantial evidence suggesting an
intent to deliver. In State v. Simpson, 22 Wn. App. 572, 575, 590 P.2d 1276 (1979), Division One
relied, in part, on evidence that balloons were found on the defendant’s person and under the
defendant’s bed because “[b]alloons are commonly used for the packaging, transportation and sale
of heroin.” And in Hutchins, Division Three noted the fact that “[t]here was no packaging material”
19
No. 53370-7-II
as one factor influencing the court’s decision to reverse a conviction for possession with intent to
deliver. 73 Wn. App. at 218.
Here, the officers testified that Sprague possessed a total of between 9 and 10 grams of
methamphetamine, a significant amount. Based on the officers’ testimony about typical doses
being between one tenth of a gram and one half of a gram, Sprague possessed between 18 and 100
doses. That amount supports an inference of an intent to deliver, but “‘at least one additional
factor’” must be present. Brockob, 159 Wn.2d at 337 (emphasis omitted) (quoting Moles, 130 Wn.
App. at 466).
Even when the influence of Sprague’s confession is removed, the presence of a scale and
plastic grocery bags are additional factors that courts have held suggest an intent to deliver. See
O’Connor, 155 Wn. App at 291; Lane, 56 Wn. App. at 297-98; Simpson, 22 Wn. App. at 575; cf.
Hutchins, 73 Wn. App. at 218. And unlike the corpus delicti analysis, the sufficiency of the
evidence analysis does not involve evaluation of hypotheses of innocence. Here, we must resolve
all inferences in favor of the State without considering hypotheses supporting mere possession.
The scale and the packaging materials were located in the same room as an amount of drugs that
exceeded an amount for personal use. Thus, despite the insufficient evidence under the corpus
delicti test, there was sufficient evidence to support Sprague’s conviction under the sufficiency of
the evidence test without Sprague’s incriminating statements.
III. MOTION TO CONTINUE TRIAL
Sprague also argues that the trial court violated his constitutional right to a fair trial when
it denied his request for a continuance. We disagree.
20
No. 53370-7-II
“[T]he decision to grant or deny a motion for a continuance rests within the sound
discretion of the trial court.” State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). “We
will not disturb the trial court’s decision unless the appellant or petitioner makes ‘a clear showing
. . . [that the trial court’s] discretion [is] manifestly unreasonable, or exercised on untenable
grounds, or for untenable reasons.’” Id. at 272-73 (alterations in original) (quoting State ex rel.
Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
Sprague asked for a continuance when the State disclosed, on the morning of trial, that the
officers testifying in Sprague’s case had completed a controlled buy from him prior to executing
the warrant underlying the present case. The prosecutor told Sprague that if he pleaded guilty
instead of going to trial, then the State would not file a new charge based on the controlled buy.
Although Sprague was surprised by information regarding a prior controlled buy before
trial, the new information was not material to this case. The State explained that it was not seeking
to admit this fact into evidence because the case law is “pretty clear that prior deliveries are not
admissible to prove intent.” 1 VRP at 32. The prosecutor “hadn’t intended on using [the
information] as anything but essentially leverage in negotiating the current, pending case.” Id.Given that the State did not seek to admit this evidence at trial, the court’s decision to deny a
continuance was not “‘manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.’” Downing, 151 Wn.2d at 272-73 (quoting Carroll, 79 Wn.2d at 26).
Further, the trial court delayed the trial long enough to ensure Sprague’s right to competent
counsel in plea bargaining was protected. To allow for informed consideration of the State’s new
plea offer, the trial court granted a “quick break” and asked the State to obtain the probable cause
report for defense counsel. 1 VRP at 33. The trial court later granted another short recess so that
21
No. 53370-7-II
defense counsel could do additional research, and the trial court delayed swearing in the jury until
after lunch so that defense counsel could use the lunch hour to confer with her client. The trial
court’s decision to grant multiple short recesses rather than a continuance was within its sound
discretion and did not violate Sprague’s right to a fair trial.
IV. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Sprague also argues that he was deprived of his right to effective assistance of counsel
when the State presented new information on the morning of trial and the trial court refused to
grant a continuance because his counsel could not fully investigate the controlled buy. Sprague
argues this impacted his counsel’s ability to present a defense and assist in plea negotiations. We
disagree.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee criminal defendants the right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State
v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). Washington has adopted Strickland’s two-
pronged test requiring defendants to show both deficient performance by counsel and resulting
prejudice. Estes, 188 Wn.2d at 457-58 (citing Strickland, 466 U.S. at 687). A failure to prove either
prong ends our inquiry. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
We review ineffective assistance of counsel claims de novo. Estes, 188 Wn.2d at 457. In
evaluating a claim of ineffective assistance, “we examine the advocacy of the defendant’s attorney
and determine if that advocacy was commensurate with that of a reasonably prudent attorney.”
State v. Greiff, 141 Wn.2d 910, 924-25, 10 P.3d 390 (2000). The inquiry is whether counsel’s
assistance was “reasonable considering all the circumstances.” Strickland, 466 U.S. at 688.
22
No. 53370-7-II
The right to effective assistance of counsel extends to plea negotiations. Lafler v. Cooper,
566 U.S. 156, 162, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012); State v. Edwards, 171 Wn. App.
379, 393-94, 294 P.3d 708 (2012). “[A]t the very least, counsel must reasonably evaluate the
evidence against the accused and the likelihood of a conviction if the case proceeds to trial so that
the defendant can make a meaningful decision as to whether or not to plead guilty.” State v. A.N.J.,
168 Wn.2d 91, 111-12, 225 P.3d 956 (2010).
In plea bargaining, the State has broad discretion. This discretion may not be used in a
manner that offends “‘fundamental conceptions of justice’” and violates a defendant’s right to due
process. State v. Moen, 150 Wn.2d 221, 226, 76 P.3d 721 (2003) (internal quotation marks omitted)
(quoting State v. Cantrell, 111 Wn.2d 385, 389, 758 P.2d 1 (1988)). “However, a condition insisted
on by the State that requires a defendant to give up a constitutional right does not, by itself, violate
due process.” Id. at 230. In State v. Shelmidine, 166 Wn. App. 107, 111, 269 P.3d 362 (2012), we
rejected the argument that “conditional terms of the State’s plea offer prevented defense counsel
from providing effective assistance of counsel.” There, the offer inhibited the defendant’s right to
request an informant’s identity, and we concluded that “waivers are necessary components of plea
agreements.” Id. at 116 (citing Moen, 150 Wn.2d at 230-31).
Here, the State did not seek to admit any new evidence at the scheduled trial, so the
disclosure of the prior controlled buy could not impact the trial outcome, only the pretrial plea
negotiations. The Sixth Amendment requires that, to adequately assist in plea negotiations, counsel
must “reasonably evaluate the evidence against the accused and the likelihood of a conviction if
the case proceeds to trial.” A.N.J., 168 Wn.2d at 111. Defense counsel was able to review the
probable cause statement underlying the new plea offer with Sprague, conduct research on how a
23
No. 53370-7-II
new charge could impact his sentencing risk, and discuss options with him. Sprague fails to show
how his counsel’s representation under these circumstances was deficient. He does not articulate
any specific incompetent advice given by his counsel, and he fails to show a reasonable probability
that the outcome of the proceedings would have been different if his counsel had given different
advice.
Sprague also contends that his counsel was “unable” to sufficiently investigate the
information disclosed by the State the morning of trial and, therefore, he was deprived of the ability
to present a defense. Br. of Appellant at 27. To the extent Sprague is arguing that the State
interfered with his Sixth Amendment right to counsel and violated his right to due process or
deprived him of his right to present a defense, that argument fails as well because the State has
broad discretion in conducting plea negotiations. See Moen, 150 Wn.2d at 230-31. Here, the State’s
strategic attempt to encourage settlement by offering to resolve a new potential charge along with
the charge on which Sprague was about to go to trial does not rise to the level of a due process
violation, especially in light of the State’s wide latitude in plea negotiations.
Sprague has failed to establish that his counsel’s performance was deficient, and the State
did not violate Sprague’s right to due process by depriving him of his Sixth Amendment right to
the effective assistance of counsel.5
5
Because we hold that the trial court committed a single error, we need not address Sprague’s
argument that cumulative errors deprived him of a fair trial.
24
No. 53370-7-II
CONCLUSION
We hold that the trial court erred in its corpus delicti analysis and improperly admitted
Sprague’s incriminating statements. But even without the statements, there was sufficient evidence
to support Sprague’s conviction for possession with intent to deliver methamphetamine. We reject
the remainder of Sprague’s arguments and affirm his conviction.
Glasgow, J.
I concur:
Worswick, P.J.
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No. 53370-7-II
Melnick, J.P.T. (concurrence)—I respectfully concur with the majority affirming Victor
Sprague’s conviction, but disagree with its conclusion that Sprague’s confession should have been
excluded. Sufficient corroborating evidence of the confession exists; therefore, the corpus delicti
rule has been satisfied.
I. CORPUS DELICTI GENERALLY
In Washington, corpus delicti is a sufficiency of the evidence rule, not merely an evidence
rule. State v. Cardenas-Flores, 189 Wn.2d 243, 256-57, 401 P.3d 19 (2017). Although it is a
sufficiency of the evidence rule, it does not displace the sufficiency of the evidence rule first
enunciated in Washington in State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980), which is utilized
when a defendant challenges the overall sufficiency of the evidence to support a conviction. That
rule states that we view the evidence in the light most favorable to the State and determine if any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Green, 94 Wn.2d at 221. All reasonable inferences are drawn in favor of the State and
against the defendant. It admits the truth of the State’s evidence and all reasonable inferences.
State v. Scanlan, 193 Wn.2d 753, 770, 445 P.3d 960 (2019).
“[T]he underlying purpose of corpus delicti is to prevent convictions based solely on
confessions.” Cardena-Flores, 189 Wn.2d at 260. If the State fails to satisfy corpus delicti and
thus fails to prove each element of the crime, the conviction must be reversed and dismissed. A
conviction cannot be based on an uncorroborated confession. Cardena-Flores, 189 Wn.2d at 260.
If a confession is admitted in contravention of corpus delicti, the conviction may be upheld if
sufficient evidence supports the conviction. Cardena-Flores, 189 Wn.2d at 262. “In assessing
whether there is sufficient evidence of the corpus delicti, independent of a defendant’s statements,
26
No. 53370-7-II
this Court assumes the truth of the State’s evidence and all reasonable inferences from it in a light
most favorable to the State.” State v. Aten, 130 Wn.2d 640, 658, 927 P.2d 210 (1996).
This series of rules means that there must be sufficient evidence to corroborate a
defendant’s confession before it is deemed admissible. It does not mean that there must be
sufficient evidence to sustain a conviction beyond a reasonable doubt.
Confessions are admissible if the State presents prima facie evidence of the corpus delicti.
“‘Prima facie corroboration . . . exists if the independent evidence supports a logical and reasonable
inference of the facts’ the State seeks to prove.” Cardenas-Flores, 189 Wn.2d at 258 (internal
quotation marks omitted) (quoting State v. Brockob, 159 Wn.2d 311, 328, 150 P.3d 59 (2006)).
Independent evidence of the corpus delicti need not be proven beyond a reasonable doubt or by a
preponderance of the evidence. State v. Meyer, 37 Wn.2d 759, 763-64, 226 P.2d 204 (1951).
“Prima facie in this context means there is ‘evidence of sufficient circumstances which would
support a logical and reasonable inference’ of the facts sought to be proved.” Aten, 130 Wn.2d at
656 (quoting State v. Vangerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995)). “[T]he 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.” Cardenas-Flores, 189 Wn.2d at
262.
The body of the crime is called the corpus delicti. Brockob, 159 Wn.2d at 327. It contains
two elements: an “‘injury or loss’” and “‘someone’s criminal act as the cause.’” Cardena-Flores,
189 Wn.2d at 252 (quoting City of Bremerton v. Corbett, 106 Wn.2d 569, 573-74, 723 P.2d 1135(1986)). “Proof of the identity of the person who committed the crime is not part of the corpus
27
No. 53370-7-II
delicti, which only requires proof that a crime was committed by someone.” Corbett, 106 Wn.2d
at 574.6, 7
The corpus delicti of homicide is a death caused by a criminal act or a death by unnatural
causes. Aten, 130 Wn.2d at 658. However, there need not be proof of a causal relation between
the death and the accused. State v. Lung, 70 Wn.2d 365, 371, 423 P.2d 72 (1967). The corpus
delicti of arson is a burning object caused by a person’s willful act and not because of natural or
accidental causes. State v. Pienick, 46 Wash. 522, 525, 90 P. 645 (1907). The corpus delicti of
larceny by possession is property that has been stolen. State v. Martin, 94 Wash. 313, 315, 162 P.
356 (1917); State v. DePriest, 16 Wn. App. 824, 825, 560 P.2d 1152 (1977).
Although our courts have stated that the corpus delicti of possession with intent to deliver
is the same as the elements of the crime, I do not believe our courts have ever truly examined this
issue. I also think this stated conclusion is inconsistent with what our courts have written about
corpus delicti.
II. INTENT NOT PART OF THE CORPUS DELICTI
Based on our precedent, including recent pronouncements, I do not believe the corpus
delicti of possession with intent to deliver includes the mens rea of intent to deliver. This
conclusion is in accord with Washington’s rule that even though “the State must establish the
6
As pointed out in State v. Young, 196 Wn. App. 214, 222, 382 P.3d 716 (2016), the corpus delicti
need not be established by independent evidence of every element of the charged crime. The
elements of the crime are different from the corpus delicti of the crime. State v. Angulo, 148 Wn.
App. 642, 653, 200 P.3d 752 (2009).
7
An exception to the identity requirement applies in crimes such as attempt, conspiracy, perjury,
and reckless or drunken driving which do not require the first corpus delicti element, injury or loss.
State v. Smith, 115 Wn.2d 775, 781, 801 P.2d 975 (1990).
28
No. 53370-7-II
mental element of the crime beyond a reasonable doubt to sustain a conviction, mens rea is not
required to satisfy corpus delicti.” Cardena-Flores, 189 Wn.2d at 263-64. Corpus delicti does not
require the State to present independent evidence of the mens rea element of a crime where that
element merely establishes the degree of the crime. State v. Boyer, 200 Wn. App. 7, 15, 401 P.3d
396 (2017).
[T]he requirements in a homicide case are the fact of death and a criminal agency as
the cause of death. There is no requirement that the appropriate mental state (intent,
recklessness, negligence), premeditation (in a first degree murder charge), or identity
of the killer, all of which would have to be established beyond a reasonable doubt to
prove a case, be established in order to admit an incriminating statement. In essence,
the gravamen of a homicide case is a dead body and a non-natural cause of death.
State v. Angulo, 148 Wn. App. 642, 656, 200 P.3d 752 (2009) (internal citations omitted).
In State v. C.M.C., 110 Wn. App. 285, 287, 40 P.3d 690 (2002), the court held that, “[t]he
corpus delicti of taking a motor vehicle without permission does not require evidence
independently establishing the mens rea element of knowledge.” The evidence, independent of
the confession, showed that the vehicle was taken without permission and that the defendant rode
in it. C.M.C., 110 Wn. App. at 289-90. The court held that the trial court properly admitted the
confession. C.M.C., 110 Wn. App. at 290.
In State v. Mason, 31 Wn. App. 41, 47, 639 P.2d 800 (1982), the State charged the
defendant with assault in the first degree by intending to commit a felony. The court held that the
intent of the accused, in that case the intent to commit a felony, was not part of the corpus delicti.
Mason, 31 Wn. App. at 48. Rather, the corpus delicti encompassed an assault on the victim and
an assault with a deadly weapon. Mason, 31 Wn. App. at 48. “The mental element of the felony
charged need not be proved by independent evidence prior to trial use of a defendant’s confession
when that element of the crime charged provides merely the degree of the generic crime charged.
29
No. 53370-7-II
That element may be supplied by use of the confession in combination with any independent
evidence used to establish the corpus delicti.” Mason, 31 Wn. App. at 48.
Based on our jurisprudence, the corpus delicti for possession of a controlled substance
should be the same as it is for possession of a controlled substance with intent to deliver. The
“intent to deliver” element is the mens rea of the crime and under the most recent pronouncement
of the Supreme Court in Cardena-Flores, corpus delicti does not include the mens rea. In addition,
by adding this mens rea element, the corpus delicti encompasses the degree of the crime, which is
contrary to well-settled law.
This proposed rule is consistent with other jurisdictions, including Pennsylvania. In
Commonwealth v. Daniels, 422 A.2d 196, 199 (Pa. Super. Ct. 1980), the court held that the crimes
of possession and possession with intent to deliver have the same corpus delicti. It reasoned that
the criminal responsibility of the defendant does not form part of the corpus delicti. Daniels, 422
A.2d at 199.
In Commonwealth. v. DiSabatino, 581 A.2d 645, 647 (Pa. Super. Ct. 1990), the appellant
argued that the Commonwealth proved a corpus delicti only for the crime of possession of a
controlled substance and not for possession with intent to deliver. The court did not utilize
Washington’s rationale; however, the court disagreed with the appellant and based its reasoning
on the “closely related” crimes exception. DiSabatino, 581 A.2d at 647. “[W]here two crimes are
closely related and have arisen out of the same transaction, the establishment of the corpus delicti
for one of them is sufficient to permit a receipt of the defendant’s admission or confession even
though it implicates him in the other crime as well.” DiSabatino, 581 A.2d at 647.
30
No. 53370-7-II
In DiSabatino, the court ruled that the crimes of possession of a controlled substance and
possession with intent to deliver were closely related because they shared a common element of
possession and arose out of the same incident. 581 A.2d at 648. Once the possession of the drugs
had been independently established, “there no longer existed a danger that a confession would lead
to a conviction where no crime had been committed. DiSabatino, 581 A.2d at 648. In so ruling,
the court did not consider the “intent to deliver” element in determining that the corpus delicti had
been satisfied.
In Commonwealth v. Stokes, 311 A.2d 714 (Pa. Super. Ct. 1973), the government charged
the defendant with the misdemeanor of pointing a firearm at police officers and with the felony of
attempted murder. The court upheld the admission of the defendant’s statement that he had pulled
the trigger but that the gun had not fired. Stokes, 311 A.2d at 715. It rejected the defendant’s
argument that his statement should have been excluded because the government had established
the corpus delicti only for the firearms offense and not for attempted murder. It reasoned that,
“[t]he two crimes charged arose from a single transaction, and had in common the element of
pointing a firearm at someone. Perhaps if the two crimes were distinct, in time or nature or both,
the case would be different; whether it would need not be decided.” Stokes, 311 A.2d at 715-16.
As in Washington, the court in Stokes did not consider the mens rea of the crime in determining if
the corpus delicti had been sufficiently corroborated.
Along these lines, I believe that the majority’s reliance on black letter law that the
confession must go to the crime charged is misplaced. Our State says it adheres to this rule, but a
close examination of the rule shows that we do not. As a hypothetical, a defendant’s confession
admitting to killing a person by accidentally pushing the person into traffic, would be admissible
31
No. 53370-7-II
in a trial where the State charged the defendant with premeditated murder. The reasons are that
the corpus delicti of murder is a death by unnatural causes, and because we do not look at the mens
rea element. See Angulo, 148 Wn. App. at 656. Even though the defendant’s confession in this
hypothetical situation only admitted to manslaughter, it would be admissible in a murder, i.e.
intentional killing case.
As it relates to the present case, we do not look at the “intent to deliver” element of the
crime when determining if the corpus delicti has been established, because it is the mens rea
element. I believe the State has sufficiently corroborated Sprague’s confession, it has proven the
corpus delicti, and the trial court did not err in admitting it.
III. SUFFICIENT EVIDENCE PROVES THE CORPUS DELICTI
Even assuming that the mens rea element, i.e. intent to deliver, is part of the corpus delicti,
I believe the State has provided sufficient evidence to support it. The majority’s reliance on a
belief that Sprague’s confession is inadmissible because the corroborating evidence is equally
consistent with guilt and innocence is, in my opinion, improper. It also fails to consider that we
look at the evidence and all its reasonable inferences in the light most favorable to the State. The
application of this rule requires closer examination and clarification of its history and its uses. It
evolved from a rule about how a jury should view circumstantial evidence, but in the context of
corpus delicti, the courts have not adapted the nuances of that rule.
The language at issue states that the independent evidence “‘must be consistent with guilt
and inconsistent with a[] hypothesis of innocence.’” Brockob, 159 Wn.2d at 329 (internal
quotation marks omitted) (quoting Aten, 130 Wn.2d at 660). This language has been favorably
cited in Cardenas-Flores and other recent cases.
32
No. 53370-7-II
It is first found in State v. Pagano, 7 Wash. 549, 553, 35 P. 387 (1893), where the court set
aside the defendant’s conviction for murder in the first degree based on insufficient evidence. All
of the evidence was circumstantial. The court determined that all the “circumstances [were]
explainable upon some other reasonable hypothesis than the guilt of the defendant, but there were
other circumstances which appeared in the proofs which went to show that there was at least an
equal probability that another than the defendant had committed the crime.” Pagano, 7 Wash. at
553.
The language at issue next appeared in State v. Harras, 25 Wash. 416, 420, 65 P. 772(1901), where the court affirmed the defendant’s conviction for cattle stealing. At trial, the court
instructed the jury on the difference between direct or positive evidence and circumstantial
evidence. Harras, 25 Wash. at 420-21. The instruction stated that circumstantial evidence can be
the basis of the conviction if it established guilt beyond a reasonable doubt and if it was consistent
with the hypothesis of guilt and not consistent with the hypothesis of innocence. Harras, 25 Wash.
at 421. In other words, if the jury believed that, “all the evidence can be reconciled with the
assumption of his guilt, and cannot be reconciled with the assumption of his innocence, and
produces in the minds of the jury an abiding conviction to a moral certainty of his guilt, . . . it is
the imperative duty of the jury, under the law and under their several oaths, to render a verdict
finding him guilty, and they would violate their oaths if they should fail to do so, just as they would
if it were all direct and positive evidence.” Harras, 25 Wash at 418-19. It is up to the jury to
decide what evidence it believed the State had circumstantially proven. It involves a question of
fact.
33
No. 53370-7-II
As is evident in Harras, even if circumstantial evidence could be consistent with
innocence, if the trier of fact determined that it could be reconciled with the defendant’s guilt
beyond a reasonable doubt, then the verdict would be upheld.
In State v. Pienick, 46 Wash. 522, 528, 90 P. 645 (1907), the court reversed the defendant’s
conviction for arson. It determined that insufficient evidence existed to support the conviction
because the circumstantial evidence did not show the defendant had the motive or the means to set
the fire. Pienick, 46 Wash. at 528. The defendant argued that the fire started as a result of a defect
in electrical wiring, regardless of the testimony that others smelled kerosene on the night of the
fire. Pienick, 46 Wash. at 524, 528. The court then stated that, “proof of the single fact that a
building has been burned does not show the corpus delicti of arson.” Pienick, 46 Wash. at 525.
The defendant did not confess to the crime and the case does not involve the admission of a
confession in violation of corpus delicti. Pienick is a sufficiency of the evidence case that would
be governed today by the standard enunciated in Green.
Subsequently, the Supreme Court utilized the language cited above to formulate a rule
relating to circumstantial evidence. “The rule with regard to circumstantial evidence is that all the
circumstances relied upon must be proven beyond a reasonable doubt. They must all be consistent
with each other and with the guilt of the defendant and they must be inconsistent with any
reasonable hypothesis of innocence.” State v. Payne, 25 Wn.2d 407, 418, 171 P.2d 227, 175 P.2d
494 (1946). The language had everything to do with how to interpret circumstantial evidence and
nothing to do with corpus delicti.
Eventually, the language found its way into a jury instruction regarding the weight and
nature to be afforded circumstantial evidence.
34
No. 53370-7-II
The facts and circumstances relied upon should be consistent with each other, and
with the guilt of the defendant. They should be inconsistent with any reasonable
theory of innocence. They should be of such character as to exclude every
reasonable hypothesis other than that of guilt. Circumstantial evidence meeting
these requirements is entitled to the same weight as direct evidence.
State v. Cerny, 78 Wn.2d 845, 850, 480 P.2d 199 (1971), vacated in part by Cerny v. Washington
408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761 (1972). Whether or not circumstantial evidence
satisfied this test involved a question of fact for the jury. Cerny, 78 Wn.2d at 849; State v.
Passafero, 79 Wn.2d 495, 499, 487 P.2d 774 (1971).
In State v. Gosby, 85 Wn.2d 758, 767, 539 P.2d 680 (1975), the court explicitly rejected
the above-stated “multiple hypothesis circumstantial evidence instruction” that it had previously
approved and required. That language stated, “If circumstantial evidence is considered by you, it
should be consistent with guilt and it should be inconsistent with innocence.” Gosby, 85 Wn.2d
at 764. Instead it adopted a rule that circumstantial evidence is as reliable as direct evidence.
Gosby, 85 Wn.2d at 766.8
The current rule on circumstantial evidence gives equal weight to direct and circumstantial
evidence. Scanlan, 193 Wn.2d at 771. It states that, “inferences based on circumstantial evidence
must be reasonable and cannot be based on speculation.” State v. Vasquez, 178 Wn.2d 1, 16, 309
P.3d 318 (2013).
8
It is important to note that our courts have upheld convictions based on circumstantial evidence
even where evidence of “innocence” went to the jury. One example is State v. Donckers, 200
Wash. 45, 93 P.2d 355 (1939). That case followed the former rule on interpreting circumstantial
evidence, which allowed the jury to interpret the evidence as a question of fact. Donckers, 200
Wash. at 50. “[I]t is for the jury to say whether it excludes every reasonable hypothesis consistent
with the innocence of the accused.” Donckers, 200 Wash. at 50
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No. 53370-7-II
The language at issue largely disappeared from our jurisprudence until the court
reintroduced it in Aten. Aten relied on Lung, where the court discussed the admission of the
defendant’s confession and the establishment of the corpus delicti. Lung, 70 Wn.2d at 370. Only
when it discussed circumstantial evidence did the court say, “[t]he circumstantial evidence must
be consistent with guilt and inconsistent with an hypotheses of innocence.” Lung, 70 Wn.2d at
372. As noted above, this view of circumstantial evidence was consistent with the law as it existed
at the time; however, this interpretation of circumstantial evidence was rejected eight years later
in Gosby.
Interestingly, in Lung, the court said that “proof of the corpus delicti and the identity of the
perpetrator of the offense must resolve the guilt of the defendant beyond a reasonable doubt.” 70
Wn.2d at 372. It also stated that a motion alleging insufficient evidence admits the truth of the
evidence as well as all reasonable inferences that can be drawn from it. Lung, 70 Wn.2d at 372.
Additionally, the evidence will be interpreted against the moving party and in a light favoring the
opposing party. Lung, 70 Wn.2d at 372.
Returning to Aten, it is essential to understand that the court stated that in analyzing whether
there is sufficient independent evidence to support the corpus delicti of the crime, it “assumes the
truth of the State’s evidence and all reasonable inference from it in a light most favorable to the
State.” Aten, 130 Wn.2d at 658; see also State v. Hummel, 165 Wn. App. 749, 759, 266 P.3d 269(2012).
I think this historical perspective is important because it appears that the former concept of
interpreting circumstantial evidence has been conflated with the concept of corpus delicti. This
view is supported by our case law.
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No. 53370-7-II
In Brockob, the court held that the corpus delicti of possession with intent to manufacture
was established as to defendant Gonzales, one of the three defendants involved in the case. 159
Wn.2d at 322. The officers had recovered ephedrine and two different sizes of coffee filters from
the backseat of Gonzales’s car. Brockob, 159 Wn.2d at 321. Ephedrine and the coffee filters are
both used in the manufacture of methamphetamine. However, there are any number of innocent
explanations for having these items. Nonetheless, the court said the corpus delicti had been
established.
The majority in the present case, however, says that “the location of the coffee filters in
Gonzales’s backseat alongside ephedrine and their varying sizes, suggested the filters were not
being used to brew coffee.” Majority at 13. The use of the term “suggested” is contrary to the
rule used by the majority, i.e. that the evidence is inconsistent with innocence. It also does not
view the evidence in the light most favorable to the State.
The majority in the present case, and the court in Brockob, acknowledged that the evidence
could be interpreted in multiple ways, yet it chose to view it as consistent with guilt and
inconsistent with innocence. But I do not think the majority reviewed the sufficiency of the corpus
delicti in the light most favorable to the State as required by Aten.
The original use of the language at issue was to guide the jury in how it made factual
determinations. We should still use it in that fashion in determining if there is sufficient evidence
to determine if the corpus delicti has been established so that Sprague’s confession is admissible.9
9
I also want to take the opportunity to state my belief that the majority’s reliance on Aten is
misplaced. There, the court held that the corpus delicti had not been proved because the cause of
death was disputed. It could have been by unnatural causes or by sudden infant death syndrome
(SIDS). Aten, 130 Wn.2d at 660. Aten is distinguishable from our case because it involved the
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No. 53370-7-II
When viewing the evidence against this framework and our well-established rules, we
assume the truth of the State’s evidence, view it in the light most favorable to the state, and then
see if it is consistent with guilt and inconsistent with innocence. Viewed in this light, I think the
court properly admitted Sprague’s confession.
IV. SUFFICIENCY FOR CORPUS DELICTI VS. FOR CONVICTION
In this case, the majority concludes that insufficient evidence supports the corpus delicti,
but that sufficient evidence supports the conviction in this case. In making this determination, the
majority relies on the same evidence. There is no other additional evidence. This anomaly requires
some discussion.
It is undisputed that Sprague possessed methamphetamine. The majority concludes that
the large quantity of methamphetamine coupled with a digital scale and plastic grocery bags is
insufficient to establish the corpus delicti. It relies on the rule established for sufficiency of the
evidence to support a conviction. See State v. Hotchkiss, 1 Wn. App. 2d 275, 280, 404 P.3d 629(2017); State v. O’Connor, 155 Wn. App. 282, 290, 229 P.3d 880 (2010). It recognizes that the
corpus delicti need not be proved beyond a reasonable doubt or even by a preponderance of the
evidence.
The evidence showed that the quantity of methamphetamine the officers discovered,
approximately 9 to 10 grams, was consistent with an intent to deliver. A person normally uses
between .1 and .5 grams for personal use, a couple of times a day. The scale was indicative of
either dealing or personal use. People commonly package methamphetamine in torn pieces of
cause of death and not the mens rea element of the crime. A genuine dispute existed in Atens as
to the cause of death, one of which involved innocence.
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No. 53370-7-II
grocery bags. The bags in Sprague’s house were torn but not into small pieces. Sprague admitted
to purchasing a half ounce of methamphetamine every few days. 10 He used some and sold some.
Sprague also admitted to using plastic grocery bags to package the methamphetamine.
Even assuming that the corpus delicti of the crime of possession with intent to deliver is
the same as the elements of the crime, the direct evidence shows that Sprague possessed 9 to10
grams of methamphetamine, a digital scale, and grocery bags that are commonly used for
packaging methamphetamine. The circumstantial evidence shows that the amount in question is
greater than is normally possessed for personal use. The circumstantial evidence also shows the
bags were torn so they could be used for packaging the methamphetamine, which is why Sprague
had a scale. It also shows that the police arrived before Sprague packaged the drug. I believe that
this evidence is sufficient to independently corroborate that Sprague possessed the
methamphetamine with an intent to deliver it.
Because there is no direct evidence of Sprague’s intent, other than his confession, the
majority is basically saying that the circumstantial evidence of Sprague’s intent points towards
innocence.11
In assessing both the sufficiency of the evidence to support the corpus delicti and the
sufficiency of the evidence to support the conviction, it is undisputed that we look at the evidence
in the light most favorable to the State, and we take all reasonable inferences from the evidence.
In the latter situation we see whether a reasonable juror could find guilty beyond a reasonable
doubt. In the former situation we rely on a standard below probable cause. Assuming the truth of
10
One half ounce of methamphetamine is approximately 14 grams.
11
It is important to keep in mind that Sprague was not innocent. Nobody questions the fact that
he illegally possessed a controlled substance.
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No. 53370-7-II
the State’s evidence and all of its reasonable inferences in a light most favorable to the State, I
disagree with the majority that the same evidence can support a conviction beyond a reasonable
doubt, but that it cannot establish the corpus delicti utilizing a lower standard of proof. This result
simply makes no sense to me.
For the foregoing reasons, I respectfully concur with the result.
Melnick, J.P.T.
40