   courg of >^rt:AV^.V. "•"'
    STAicOr u:~kz.••'•'••• :




      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                   No. 69147-3-1
                       Respondent,
          v.                                       DIVISION ONE

PATRICK AUBLE,                                     UNPUBLISHED OPINION


                       Appellant.                  FILED: June 16, 2014



          Spearman, C.J. — After a jury convicted Patrick Auble for rendering

criminal assistance, he moved to arrest the judgment, arguing that his conviction

rested on his own uncorroborated statements and therefore violated the corpus

delicti rule. The superior court ruled that Auble could not raise this claim for the

first time after trial. Because the superior court did not err in denying Auble's

motion, and because Auble's conviction is supported by sufficient evidence, we

affirm.


                                         FACTS


          On July 23, 2011, twelve people were shot during a car show and rap

concert in Kent, Washington. Following an investigation, the State charged five

people with either first degree assault or drive by shooting. Based on evidence

that Patrick Auble hindered the investigation, the State charged him with first

degree rendering criminal assistance.

          Auble represented himself at trial. In his opening statement, he told the

jury that shortly after the car show shooting, but before he knew it had occurred,
No. 69147-3-1/2

he and his brother Shea went to pick up supplies for a party Auble was having
that evening. While they were driving, Shea made a phone call to Nick Moreno,

a person later charged in the shooting. They subsequently met Moreno at a gas

station, bought him some gas, and invited him to the party.

       During the party, Auble and some guests decided to shoot guns at a

shooting range on Auble's property. As they walked to the range, police arrived

and started asking questions. They arrested four people, including Auble's

brother Shea, for outstanding warrants and/or firearm violations. The police also

took Auble's guns "for an investigation." Verbatim Report of Proceedings (VRP)

(4/24/12) at 17. Auble told the jury he had "no clue" what the investigation was

about until he turned on the television and learned of the car show shooting.

VRP at 17. He then kicked everyone out of the party, saying "you guys are going

to sit there and talk about bragging of a shooting, I don't even want to hear about

it, leave." VRP at 18.

       As people left the party, several tried to get into Auble's car. He asked

what they were doing, and they said his brother let them "put something in there

hours ago." VRP at 19. Auble told them they could retrieve whatever it was

when his brother got out of jail. The people insisted "we've got to get it now," but

Auble kicked everyone out. |d.

      Auble then checked the trunk of his car and found a bag containing

several guns. He also learned that someone had hidden their car in one of his

garages. As the night went on, Auble "called the police several times because



                                        -2
No. 69147-3-1/3

people were talking...about who was doing the shooting." VRP at 20. He said

"the shooters that were talking about" included a person nick-named "Dreamer."

VRP at 20.


       The next day, Auble talked to the police and told them he had the guns in

a safe and would be happy to bring them down. He said he did not know who

put the guns in his trunk, but his brother Shea knew. He said Shea "needs to get

out of jail so he can explain to you guys . . . how he received these guns

VRP at 22. Auble claimed he gave the police all the information he had, that the

police knew where he lived, and that he "wasn't hindering anything." VRP at 23.

He ended by telling the jury "I didn't hinder anything. I didn't render anything.

The ... guns were eventually dropped off at an Auburn Police station."

       Two 911 calls Auble made during his party were played and transcribed

for the jury. In the first call, Auble identified himself and asked questions about

Shea's arrest. He then said "I know where the gun, and the car, and the two

suspects that were at the Des Moines police shooting that happened a couple

hours ago." Exhibit (Ex.) 37 at 3. When asked where they were, Auble said "well

when my brother's released I'll tell you exactly where everything is."

       In the second 911 call, Auble said "I have one of the guns that was

involved in the . . . Kent. . . shooting [.]" Ex. 37 at 6. He identified himself as

"Pat Doe" and declined to give his address. He said "I want my guns back" and

gave the 911 operator his phone number. ]d.
No. 69147-3-1/4


       Kent Police Officer Jennifer Pursa investigated the car show shooting.

She testified that after learning of Abule's 911 call, she called him at the number

he provided during his call. Auble said "he wanted his brother to be released

from jail and then he could tell us the name of the shooter, where the gun was,

and where the car was." VRP (4/24/12) at 60. Auble refused to identify himself

to Officer Pursa. A police dispatcher later contacted Officer Pursa and said that

Auble had called back and "wanted to hear from a detective by 1:00 in the

morning or stuff was going to start missing" or "disappear." VRP at 61-62.

       Sean Estrada testified that he attended the car show and saw a man

running and shooting a gun back toward the crowd. The man eventually got into

a waiting teal Oldsmobile that left in a hurry. Estrada wrote down the car's

license number and gave it to police. The car was owned by Nicholas Moreno.

When police eventually located the Oldsmobile several days after the shooting,

Moreno was driving. The State later charged Moreno with first degree assault for

the car show shooting

       Stephanie Rodriguez testified that she attended Auble's party on the day

of the shooting. According to Rodriguez, a man at the party said he was one of

the shooters at the car show. He said he was running away and shooting while

running away. Rodriguez contacted police through an anonymous tip line and

identified Nick Moreno from a photo as the man talking at the party.

       Detective Rick Gilcrist of the Kent Police Department testified that he

assisted in the investigation. He spoke with both Auble and Shea three days
No. 69147-3-1/5

after the shooting. He first interviewed Shea at the jail. Shea said he knew the

names of the car show shooters and mentioned specific calibers of the guns

used in the shooting. But he refused to give Detective Gilcrist the names.

       Detective Gilcrist then interviewed Auble at the Kent police station. Auble

offered to give him one of the guns used in the shooting in exchange for Shea's

release from jail and the return of Auble's guns. When asked if he would

voluntarily give police the gun and the names of the shooters, Auble refused.

      Auble knew some details of the shooting, saying it was a gang conflict and

that he knew several gang members. He recalled driving with Shea that

afternoon and meeting up with an Oldsmobile full of people at a house.

Someone in the Oldsmobile put something in the trunk of Auble's car. Auble

refused to reveal that person's identity to Detective Gilcrist. Both cars then drove

to a gas station and then on to Auble's house. Surveillance video from the gas

station showed Auble's and Moreno's vehicles simultaneously pulling into the gas

station about an hour and a half after the car show shooting. The video shows

Auble paying for gas for Moreno's Oldsmobile.

      At some point, Auble was asked to hide the Oldsmobile. He decided to

hide it in his mother's garage. He later found a black handgun in the trunk of his

own car. He put the gun in a safe.

      Auble told Detective Gilcrist that he overheard someone at the party

saying "the gun that was placed in the trunk was used in the car show shooting."

VRP (4/24/12) at 182. Auble said all three gang members involved in the
No. 69147-3-1/6

shooting were at the party. After the party, someone woke Auble up, asked for

the keys to the Oldsmobile in the garage, and drove it away.

       Auble called Detective Gilcrist after the interview and said '"you better call

your prosecutor friend because if my brother gets filed on tomorrow, I'll have to

bail him out and that gun's going to disappear.'" VRP at 185.

       Detective Gilcrist also recounted a recorded phone call between Shea and

Auble. Shea told Auble that Detective Gilcrist had just come by and asked

questions about the shooting. Auble told Shea '"don't say shit to them.'" Shea

replied '"I'm good, I ain't no snitch.'" VRP (4/25/12) at 29.

       Sergeant Phil Johnson of the Kent Police Department also investigated

the shooting. The name "Dreamer" came up early in the investigation. Sergeant

Johnson eventually established that "Dreamer" was Nick Moreno. He testified

that phone records showed that Moreno called Auble seven times on the day of

the shooting. Moreno and Auble each called the other twice the next day. Four

days after the shooting, Abule called Moreno eight times. The next day, he

called Moreno four times.


       Sergeant Johnson testified that Auble never gave the police the names or

descriptions of the shooters. Sergeant Johnson testified that not receiving that

information, the gun, or the location of the Oldsmobile on the night of the

shooting, hindered the investigation.

       Detective Heather Vance of the Kent Police Department testified that one

of the car show shooters used a .380 caliber handgun. This was consistent with
No. 69147-3-1/7

Auble's statement to police that a gun he found in his trunk was a .380 caliber

pistol. The police, however, never recovered a .380 handgun that matched the

ballistics evidence at the scene of the shooting.

          Several weeks after the shooting, Detective Vance went to Auble's

residence to talk to him, but he was not home. Auble later left her a voice

message, saying "you can go talk to Detective Gilcrist. ... I already gave him his

option and he didn't do what he said, so I'd appreciate it if you guys wouldn't

come to my house anymore." VRP (4/26/12) at 114. Detective Vance testified

that, without a gun, the investigation of Nicholas Moreno was "very, very difficult."

          Auble testified in his own defense. He claimed he told the police

everything he knew. He told them he would bring the gun to the station with

Shea when Shea was released, but no one would listen to him. He eventually

gave up and took the guns to the Auburn police station.

          On cross-examination, Auble testified that he told Auburn police when he

dropped off the guns that "Kent wants these." VRP (4/26/12) at 159. He denied

telling them that the guns were used in a series of 7-11 store robberies by a man

named "CJ". VRP (4/26/12) at 157. Auble then said he told the Auburn police "a

little bit of a lie" but the guns were the guns he intended to give to the Kent

police.

          Auble admitted he knew Nick Moreno at the time of the shooting. He also

admitted that he had Moreno's phone number in his cell phone and that Moreno

called him multiple times on the day of the shooting. He testified that prior to



                                          -7-
No. 69147-3-1/8

calling 911, he knew Nick was driving the car hidden in his garage, that there

were guns in the trunk of his own car, that people at the party were bragging

about being involved in the shooting, and that the gun and the car were probably

used in the shooting. When asked if he ever gave the gun to Detective Gilcrist or

Detective Johnson, Auble said they never asked for it.

       Officer Douglas Koch of the Auburn Police Department testified that Auble

dropped off some guns in September, 2011. Auble said the guns might have

been used by a person named CJ in some 7-11 robberies. Auble never

mentioned the Kent shootings.

       Detective Mike Mellis of the King County Sherriff's Department testified

that in the summer of 2011, he investigated a string of armed convenience store

robberies. One of the suspects was a person who went by the name "CJ".

When Detective Mellis heard about the guns Auble dropped off in Auburn, he

spoke with Auble by phone. Auble said that he and his brother had legal trouble.

Auble made it clear that he had information about the guns and CJ but would not

give it to the detective unless he "could secure some kind of advantage for his

brother." VRP (4/30/12) at 50. Auble never suggested that the guns were linked

to the Kent shooting.

       The jury found Auble guilty as charged and the court imposed a sentence

of 12 months in work or education release. Auble retained counsel prior to

sentencing and filed a motion for arrest of judgment. He argued that his

conviction violated the corpus delicti rule because it relied solely on his



                                          8
No. 69147-3-1/9

uncorroborated out of court statements. The State argued that there was no

violation of the rule, and in any event, Auble did not preserve any error because

he failed to object when his statements were admitted.

       The court ruled that Auble waived the alleged error by failing to object.

Auble appeals.

                                     DECISION


       In his sole assignment of error, Auble contends the trial court erred in

denying his motion to arrest the judgment. He contends his conviction violates

the corpus delicti rule because the State did not present sufficient evidence

corroborating his out-of-court admissions. Characterizing this error as a matter

of the sufficiency of the evidence supporting his conviction, he contends the

superior court erred in concluding he waived the issue by not raising it at trial.

We disagree.

                        Arrest of Judgment / Corpus Delicti

       We review a decision denying a motion for arrest of judgment de novo.

State v. Ceqlowski. 103 Wn. App. 346, 349, 12 P.3d 160 (2000). Under the

corpus delicti rule, "a defendant's extrajudicial confession or admission is not

admissible unless there is independent prima facie proof that the crime charged

has been committed by someone." State v. Dodgen, 81 Wn. App. 487, 492, 915

P.2d 531 (1996) (citing State v. Cobelli, 56 Wn. App. 921, 924, 788 P.2d 1081

(1989)). The independent evidence need not be sufficient to support a conviction

but must provide prima facie corroboration of the crime described in a



                                          9
No. 69147-3-1/10

defendant's incriminating statement. State v. Brockob, 159 Wn.2d 311, 328, 150

P.3d 59 (2006). Prima facie corroboration exists if the independent evidence

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

prove. State v. Vanqerpen. 125 Wn.2d 782, 796, 888 P.2d 1177 (1995). The rule

"is a judicially created rule of evidence, not a constitutional sufficiency of the

evidence requirement, and a defendant must make a proper objection to the trial

court to preserve the issue." Dodqen, 81 Wn. App. at 492 (citing State v. C.D.W.,

76 Wn. App. 761, 763-64, 887 P.2d 911 (1995)). In addition, we noted in C.D.W.

that an objection is required

       because "[i]t may well be that 'proof of the corpus delicti was
       available and at hand during the trial, but that in the absence
       of [a] specific objection calling for such proof it was omitted.'"

C.D.W., 76 Wn. App. at 763-64 (quoting People v. Wright, 52 Cal.3d 367, 404,

802 P.2d 221, 245, 276 Cal.Rptr. 731 (1990). Here, Auble did not object to the

admission of his extrajudicial statements under the corpus delicti rule. Under

Dodgen and C.D.W., he waived any objection under the rule.

       Citing State v. Aten, 130 Wn.2d 640, 656-57, 927 P.2d 210 (1996), Auble
argues that the corpus delicti rule is meant to protect against unjust convictions,
and therefore it must have "constitutional sufficiency of the evidence

underpinnings." App. Reply Br. at 7. Aten does state that the rule protects
defendants from convictions based on confessions of questionable reliability, and

the rule does have a sufficiency component related to the sufficiency of the

evidence corroborating the confession or admission, but the rule does not have


                                           10-
No. 69147-3-1/11

constitutional underpinnings. State v. Dow, 168 Wn.2d 243, 227 P.3d 1278

(2010). Nor does Aten or any authority cited by Auble hold that a corpus delicti

issue may be raised for the first time after trial.1 In the absence of such authority,

we adhere to our decisions in Dodgen and C.D.W. The trial court did not err in

ruling that Auble waived his corpus delicti claim by failing to object to the

admission of his statements on that basis at trial.

       Even if Auble had preserved the issue, his argument would fail for several

reasons. First, as the State correctly points out, the corpus delicti rule applies to

confessions or admissions, not to statements made during the commission of a

crime. See State v. Dyson, 91 Wn. App. 761, 763, 959 P.2d 1138 (1998).

Auble's extrajudicial statements were not confessions or admissions of guilt and

were made during the commission of his offense. Second, the rule does not

apply to in-court statements or testimony. State v. Hummel, 165 Wn. App. 749,

759 n.1, 266 P.3d 269 (2012) rev. denied. 176 Wn.2d 1023, 297 P.3d 708

(2013)("[T]he corpus delicti rule does not apply to statements made in open

court."). Aubles' opening statement and in court testimony are outside the ambit

of the rule and provide any necessary corroboration for his extrajudicial

statements. See State v. Mathis, 73 Wn. App. 341, 346-347, 869 P.2d 106, 109

(1994) ("Mathis testified and confirmed that he had made statements to Morton

police officers in which he admitted that he had digitally penetrated L.P. . .. That


        1 Auble does not address several cases that possibly lend support to his position.
See State v. Groqan. 158 Wn. App. 272, 246 P.3d 196 (2010) (citing Dow, 168 Wn. 2d
243; State v. Pietrzak. 110 Wn. App. 670, 41 P.3d 1240 (2002). Absent briefing from
either party on these cases, we decline to address them.

                                          -11 -
No. 69147-3-1/12

evidence, combined with the testimony of L.P. . . . was sufficient to establish the

corpus delicti of the crime independent of the officers' testimony concerning

Mathis's statements made to them.); State v. C.M.C.. 110 Wn. App. 285, 287, 40

P.3d 690 (2002)(relying in part on defendant's in-court admission to satisfy

corpus delicti); State v. Liles-Heide. 94 Wn. App. 569, 970 P.2d 349

(1999)(reviewing courts consider defendant's testimony in determining whether

corpus delicti was established).

                             Sufficiency of the Evidence

       Auble argues in the alternative that the evidence, including his

extrajudicial statements, was insufficient to support the elements of first degree

rendering criminal assistance. Again, we disagree.

       Evidence is sufficient to support a conviction if, viewed in the light most

favorable to the State, it permits any rational trier of fact to find the essential

elements of the crime beyond a reasonable doubt. State v. Goodman. 150 Wn.

2d 774, 781, 83 P.3d 410 (2004). A claim of insufficiency admits the truth of the

State's evidence and all reasonable inferences that can be drawn therefrom.

State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial and

direct evidence carry equal weight, Goodman, 150 Wn. 2d at 781 (citing State v.
DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003), and criminal intent may be

inferred from conduct where it is plainly indicated as a matter of logical

probability. State v. Johnson. 159 Wn. App. 766, 774, 247 P.3d 11 (2011).




                                           12
No. 69147-3-1/13

       To convict Auble of rendering criminal assistance, the jury had to find that

he "rendered criminal assistance" to Nicholas Moreno, that Nicholas Moreno had

committed or was being sought for first degree assault, and that Auble knew that

Moreno had committed or was being sought for first degree assault. The jury

instructions defined "renders criminal assistance" as follows:

       A person "renders criminal assistance" if, with intent to prevent,
       hinder, or delay the apprehension or prosecution of another person
       who he knows has committed a crime, or is being sought by law
       enforcement officials for the commission of a crime, he .. .
       conceals, alters or destroys any physical evidence that might aid in
       the discovery or apprehension of such person. Clerk's Papers at
       90.


       Viewed in a light most favorable to the State, the evidence was sufficient

for a rational trier of fact to convict Auble of rendering criminal assistance. The

evidence either established or supported reasonable inferences that prior to

calling 911, Auble knew Nick Moreno was involved in the shooting and, with

intent to prevent, hinder, or delay Moreno's apprehension or prosecution, he

concealed physical evidence — i.e., the car and gun — that might have aided in

Moreno's discovery or apprehension.

       Contrary to Auble's assertions, State v. Budik. 173 Wn.2d 727, 272 P.3d

816 (2012), did not require the State to also prove an affirmative act in order to

convict him of rendering criminal assistance. Budik held that rendering criminal

assistance requires more than a false denial of knowledge and that the State

must prove an affirmative act or statement indicating intent to shield or protect a

suspect. Budik. 173 Wn.2d at 736-37. Prior to the police apprehending Moreno,



                                         13-
No. 69147-3-1/14

Auble hid Moreno's car and gun, told police he knew who the suspect was and

where his gun and car were, and then refused to reveal the information unless

his brother was released from jail. These acts and statements satisfy Budik.
      Affirmed.



                                              )-L*ft^6~-j v..<o»
WE CONCUR:




                                       YP <L »Vvdfi/. f^r-




                                       14
