                                                                                                                       FIL_ ufE-



                                                                                                           COURT OF APPEALS
                                                                                                              DIVISIOU II
                                                                                                      Z0! 4 JA          2
                                                                                                      ry
                                                                                                                             Ajt q i 7
   IN THE COURT OF APPEALS OF THE STATE OF WASHIN                                                                       r

                                                                                                                                   NGTO,44
                                                                                                           Y       l
                                                 DIVISION II
                                                                                                                   D        TY
STATE OF WASHINGTON,                                                           No. 43456 -3 - II


                                       Respondent,


        V.



KELLY EARNEST MERZ,                                                       UNPUBLISHED OPINION


                                       Appellant.


         PENOYAR, J. —       Kelly Earnest Merz appeals his convictions of premeditated first degree

murder and sexually violating human remains, arguing that insufficient evidence supports the

latter conviction under the corpus delicti rule and that the trial court erred by rejecting his

proposed     jury   instruction   on premeditation.       Merz raises additional claims of error in a pro se


statement     of    additional    grounds (   SAG).    We hold that there was sufficient corroborating


evidence to support Merz' s conviction of sexually violating human remains, that the trial court' s

instruction properly defined premeditation for the jury, and that Merz' s pro se claims of error
lack merit. We affirm both convictions.

                                                       FACTS


         On September 12, 2011, Merz called his ex -wife and told her he had killed his roommate.

Merz   was             and explained      that he had " lost it."   2 Report   of   Proceedings ( RP)      at   215.   His
              crying


ex -wife reported to the police what Merz had said.

                     James                Went to Merz'                   to investigate the     report.        When the
         Deputy                Oetting                    s   apartment




                         the   apartment complex,      Merz    walked   toward   him   with   his hands up. Merz' s `
deputy   approached




                                 he   appeared nervous.   Merz   said   he had killed his   roommate,      Cori Lewis.
face   was scratched, and
43456 -3 -II



          Merz       explained     that he   and    Lewis had     argued    in the    doorway   of   her bedroom.   When


Lewis head -butted Merz, he tried to break her                   neck.     When that failed, he shot her in the head

with   his   pistol.    He put some bags over her head to contain the bleeding, threw her body out the

window, and          dragged it to his       car.   After rejecting an initial location, he buried the body in a

remote area.




          Merz then showed the deputy where he had left evidence along the way to the burial site.
Investigators        recovered      several    items   at   various      locations,   including bloody     clothing,   shelf




casings, a plastic bag, a shovel, and the gun. Investigators also found Lewis' s body where Merz
said he had buried it. Lewis was naked, with her clothing underneath her body.

          In a recorded and transcribed confession, Merz described the murder and subsequent

events.       Merz said he removed Lewis' s underpants and kissed her vagina before burying her

because it looked pretty.             Concerned that he might have left DNA, he then rubbed dirt into the

vaginal area.



             The State charged Merz by amended information with premeditated first degree murder
                                                                                                             II). The trial
while armed with a            firearm ( count I)     and    sexually violating human      remains ( count




 court denied Merz' s pretrial motions to obtain a different attorney and to represent himself.

 Following       a     CrR 3. 5     hearing, the trial court ruled that Merz' s pretrial statements were

 admissible.           And,   finding sufficient evidence to establish the corpus delicti of count II
 independent of Merz' s confession, the court denied his separate motion to suppress the

 confession and dismiss that count.


             Merz' s ex -wife and several law enforcement officers testified to the facts set forth above.

                                  heard the recording            Merz'   s confession and reviewed       its transcript.   A
 In   addition,      the   jury                             of




 medical examiner testified that the victim was found naked, except for the bra around her neck,
                                                                  0)
43456 -3 -II




and that there was a small pile of dirt at the vaginal entrance. At the close of the State' s case, the

trial court again denied Merz' s corpus deliciti motion.

         Merz, the single defense witness, testified that he blacked out before Lewis opened her

bedroom door but that he        also remembered       shooting her.       He complained that the recording of

his   confession    had been " doctored."    5 RP at 642.


         The trial court refused to instruct the jury on manslaughter and instead gave an

instruction    on              included
                    the lesser -            offense   of second      degree      murder.   The court also rejected


Merz' s proposed instruction on premeditation and instead gave the following pattern instruction:

                    Premeditated   means    thought   over       beforehand.     When a person, after any
          deliberation,    forms   an   intent   to   take       human   life,    the killing may follow
          immediately after the formation of the settled purpose and it will still be
         premeditated.      Premeditation must involve more than a moment in point of time.
          The law requires some time, however long or short, in which a design to kill is
          deliberately formed.

Clerk' s Papers ( CP) at 83. 1

          After the jury found Merz guilty as charged, the trial court imposed a standard range

sentence of 393 months.. Merz appeals.




 1 Merz' s proposed instruction read as follows:

                    Premeditated means thought over beforehand. Premeditation must involve
          more than a moment in point of time. Premeditation is the deliberate formation of
          and reflection upon the intent to take a human life and involves the mental process
          of   thinking beforehand,       deliberation, reflection, weighing or reasoning for a
          period of time,. however short or long, in which a design to kill is deliberately
          formed. Mere opportunity to deliberate is not sufficient to support a finding of
          premeditation.




 CP at 47.


                                                             3
43456 -3 -II



                                                             ANALYSIS


I.          CoRPUs DELICTI


            Merz first challenges the sufficiency of the evidence supporting his conviction for

sexually violating human                     remains,    arguing that the trial court should have excluded his

confession           because the independent            evidence   failed to    corroborate     it. We review this issue de


novo. State v. McPhee, 156 Wn. App. 44, 60, 230 P. 3d 284 ( 2010).

            The corpus delicti rule tests the sufficiency of evidence, other than the defendant' s

confession,          to    corroborate   that   confession.   2 State v. Dow, 168 Wn.2d 243, 249, 227 P. 3d 1278

 2010).        A defendant' s incriminating statement is not sufficient to establish that a crime occurred.

State     v.   Brockob, 159 Wn.2d 311, 328, 150 P. 3d 59 ( 2006).                       The purpose of the corpus deliciti

                              defendants from                                         based    on confessions alone.     Dow,
rule     is' to     prevent                         being    unjustly    convicted




 168 Wn.2d at 249.


               To satisfy the corpus deliciti rule, the State must present evidence independent of the

incriminating statement that shows the crime described in the statement occurred. Brockob, 159
 Wn.2d         at   328.    In determining whether this standard is satisfied, we review the evidence in the
 light    most       favorable to the State.       Brockob, 159 Wn.2d           at   328.    The independent evidence need


 not be sufficient to support a conviction but must provide prima facie corroboration of the crime

                           defendant'                                      Brockob, 159 Wn.2d           at   328.   Prima facie
 described in          a                 s   incriminating   statement.




 2 RCW - 10. 58. 035 applies a more relaxed trustworthiness standard to the admission of a
 defendant' s confession. Dow, 168 Wn.2d at 251 -52. Merz focused below, as he does on appeal,
 on the sufficiency of the independent evidence rather than the admissibility of his confession.
 See Dow, 168 Wn.2d                 at   253 -54 ( "    any departure from the traditional corpus delicti rule under
 RCW 10. 58. 035 pertains only to admissibility [ of the confession] and not to the sufficiency of
 evidence required to support a conviction "). Merz argued that his statements were inadmissible

 because there             was   insufficient    evidence    to   corroborate   them.       Although he asserts that the trial
 court should have addressed the factors in RCW 10. 58. 035, we see no error in its failure to do so
 where Merz did not renew his admissibility challenge after his sufficiency challenge failed.
                                                                     4
43456 -3 -II




corroboration exists if the independent evidence supports a " logical and reasonable inference" of

the   facts the State    needs   to   prove.     State v. Yangerpen, 125 Wn.2d 782, 796, 888 P. 2d 1177

 1995).   The corpus delicti can be proved by direct or circumstantial evidence. State v. Aten, 130

Wn. 2d 640, 655, 927 P. 2d 210 ( 1996). Circumstantial evidence proving the corpus delicti must

be consistent with guilt and inconsistent with innocence. Aten, 130 Wn.2d at 660.

          To convict Merz of sexually violating human remains, the State had to prove that he had

sexual contact with a         dead human       body.    RCW 9A.44. 105( 1).          In this context, sexual contact is


any touching of the sexual or other intimate parts of a dead human body for sexual gratification.
RCW 9A.44. 105( 2)( b).          In arguing that the independent evidence was insufficient to infer that

such contact occurred, Merz relies on State' v. Ray, 130 Wn.2d 673, 926 P. 2d 904 ( 1996).

          Ray told police that he placed his daughter' s hand on his penis and was charged with first
degree    child   molestation.        Ray,     130 Wn.2d         at   675 -76.     The Supreme Court held that the


following evidence was insufficient to prove the corpus delicti of that offense without Ray' s
confession:




           At approximately one in the morning, three- year -old L.R. came to her parents'
          bedroom     and asked       for    a glass of water.        Ray, probably nude, accompanied his
          daughter back to her        room.      Ray   later   returned to   his   room upset and    crying.   Ray
          awakened      his   wife and      talked to her.     His wife became upset and rushed to check
          on   L.R.   After further discussion with his wife, Ray, who was still upset, placed
          an emergency call to his sexual deviancy counselor."

 130 Wn.2d at 680 ( quoting State v. Ray, 33582 -1 - I, slip op. at 4 ( Wn. App. Nov. 6, 1995)).
          While these facts suggested that something out of the ordinary had occurred, it was .a

  leap in logic to conclude that any kind of criminal conduct occurred, let alone the specific
 conduct of     first degree    child molestation."            Ray,   130 Wn.2d     at   680.   Without any independent

 evidence that Ray had molested his daughter, the State had failed to prove the corpus delicti.

                                                                 E
43456 -3 -II




Ray,   130 Wn.2d         at   681.   The Supreme Court affirmed the trial court' s exclusion of Ray' s

confession and its dismissal of the charge. Ray, 130 Wn.2d at 681.

        We agree with the State that no leap in logic is required to conclude, independent of

Merz' s statements, that criminal conduct did occur. When viewed in the light most favorable to

the State, independent circumstantial evidence shows that Merz had sexual contact with the

victim' s   body. Although a few items of the victim' s clothing were found strewn along the way,

her sweatpants, underpants, and jacket were found underneath her body, and her bra was found

around her neck. This indicates that the victim was clothed when Merz brought her to the burial

site and that he then removed her clothing. The evidence also shows that a small pile of dirt was

found at the entrance to the victim' s vagina, which serves as further corroboration that criminal

contact     occurred.         Although this evidence is not sufficient to prove the offense of sexually


violating human remains, it is sufficient to corroborate Merz' s confession to that crime. The trial
court did not err by denying Merz' s motions to dismiss under the corpus delicti rule.
II.       PREMEDITATION INSTRUCTION


          Merz contends that the trial court erred by refusing to give his proposed instruction on

 premeditation and in choosing instead to give an instruction based on 11 WASHINGTON PATTERN
 JURY INSTRUCTIONS: CRIMINAL 26. 01. 01,             at   360 ( 3d   ed.   2008) ( WPIC).


            We review a trial court' s refusal to send a proposed instruction to the jury to determine

 whether     it   was                unreasonable   or    based   on untenable     grounds.   State v. Buzzell, 148
                        manifestly


 Wn.   App.       592, 602, 200 P. 3d 287 ( 2009).    Jury instructions are adequate if they allow a party to

 argue its theory of the case and do not mislead the jury or misstate the law. State v. Stevens, 158
 Wn.2d 304, 308, 143 P. 3d 817 ( 2006).



                                                             31
43456 -3 -II



          Washington      appellate     courts   have    upheld      WPIC 26. 01. 01,       the pattern instruction on


premeditation,     on numerous         occasions.   See,    e. g.,   State v. Clark, 143 Wn.2d 731, 770 -71, 24


P. 3d 1006 ( 2001);     In re Pers. Restraint ofLord, 123 Wn.2d 296, 317, 868 P. 2d 835, clarified on

other    issues, 123 Wn.2d 737, 870 P. 2d 964 ( 1994);               State v. McDaniel, 155 Wn. App. 829, 856

n. 21,   230 P. 3d 245 ( 2010).       Merz cites no case law that post -
                                                                       dates Clark and McDaniel, and we

decline to consider this challenge further.

Ill. STATEMENT OF ADDITIONAL GROUNDS

           Merz makes several claims of error in his pro se SAG. He argues first that the trial court

erred by denying his request to represent himself at trial.
           We review the denial of such a request to determine whether that denial was manifestly

unreasonable      or   based   on untenable grounds.         State v. Madsen, 168 Wn.2d 496, 504, 229 P. 3d

714 ( 2010).     Courts must honor a properly made request for self -
                                                                    representation, but because a

defendant waives the right to counsel by invoking the right to represent himself, courts also must

                                                                       waiver    of   the   right    to    counsel."     State v.
  indulge in ` every     reasonable      presumption'      against




 Thompson, 169 Wn.            App.   436, 465, 290 P. 3d 996 ( 2012) (         quoting Madsen, 168 Wn.2d at 504),

                                                         The              to                              therefore    must "`   be
 review    denied, 176 Wn.2d 1023 ( 2013).                     request         proceed      pro     se




 unequivocal,    knowingly       and   intelligently    made, and ...      timely. "' Thompson, 169 Wn. App. at

 465 ( quoting State     v.   Vermillion, 112 Wn.       App.   844, 851, 51 P. 3d 188 ( 2002)).              To determine the


 validity of such a request, the trial court must examine the facts and engage in a colloquy to
 ensure that the defendant understands the risks and consequences                                   of self -
                                                                                                            representation.


 Thompson, 169 Wn. App. at 465 ( citing State v. Hemenway, 122 Wn. App. 787, 791, 95 P. 3d
 408 ( 2004)).




                                                               7
43456 -3 -II




        During a pretrial hearing, Merz voiced his unhappiness with one of his appointed

attorneys, but the trial court declined to appoint a different attorney. At the CrR 3. 5 hearing two

weeks later, Merz asked to represent himself. During an extensive colloquy with the court, Merz

complained that he had no faith in his attorneys but admitted that he had no knowledge of court

rules and procedures.             He did not know how to cross examine a witness and did not understand

how self -
         representation would affect his right to remain silent. Merz admitted that he had never

                             He                              to trial   and would need a continuance of "[ p]
sat through     a   trial.        was not    ready to   go                                                           robably


two   months."       1 RP    at   21.   The State responded that it would object to any continuance, as it had

five witnesses waiting for the CrR 3. 5 hearing and other witnesses ready to testify at trial the

following      week.     The court denied Merz' s request because it was untimely and not voluntarily

u13




           We do not see this decision as manifestly unreasonable. Merz waited until the date of the

CrR 3. 5 hearing to make his request, with trial set to begin the following week. It was clear that

he did not fully understand the proceedings. We reject this claim of error.

           Merz also claims that the recording of his confession, the transcript of that recording, and

the trial transcript have been              altered.    The record does not support this claim and we will not


address    it further.       If Merz has independent evidence of any such alteration, he should submit it

with   a personal restraint petition.             State v. McFarland, 127 Wn.2d 322, 335., 899 P. 2d 1251

  1995).


           Merz      makes        several   complaints       about      his trial   and   appellate   counsel..    To prove


 ineffective assistance of counsel, a defendant must show that his attorney' s performance was

 deficient                                                                 McFarland, 127 Wn. 2d         at   334 -35.   Merz
               and    that the     deficiency    was    prejudicial.




 complains that he gave his appellate counsel a 27 -page description of what really happened and
                                                                   t
43456 -3 -II




told her to      contact         a witness whose police statement                had been    altered.   As stated, we do not


review evidence that is not part of the record below, and appellate counsel was not deficient in

failing to pursue or examine such evidence.

             Merz next asserts that his trial attorney would not allow him to introduce character

witnesses on his own behalf or witnesses who would testify about the victim' s drug use. We see

no deficient performance in this regard. Evidence of Merz' s truthful character was inadmissible

in the absence of prior evidence attacking his character, and the State introduced no such

                 ER 608; State                  Harper, 35 Wn.                  855, 860, 670 P. 2d 296 ( 1983).      Defense
evidence.                                  v.                         App.

counsel correctly agreed with the State that evidence of the victim' s drug use was inadmissible
             the State                                 that         did   not use   drugs.   ER 401; 404( a)( 2).   The State
unless                   elicited     testimony               she




elicited no such testimony.


             Finally, Merz complains that his co- counsel was nonexistent and that his primary
                            1)              his                      2) review the police statement and other evidence
attorney did        not (         return          phone   calls, (




with    him, ( 3)   consider manslaughter as part of a possible plea                     deal, ( 4)   allow him a continuance,

and (   5)     explore   the possibility          of   giving him     an      MRI ( magnetic   resonance   imaging). He also

alleges that his attorney made him sign a witness list.

             Defense counsel informed the court that Merz was evaluated for mental health issues

 before trial.      Defense counsel also proposed an instruction on manslaughter that the trial court

 rejected.       Even if Merz' s remaining allegations are accurate, he does not show how these

 deficiencies were prejudicial in light of the State' s overwhelming evidence and Merz' s own

 testimony. Merz does not succeed in showing that he received ineffective assistance of counsel.




                                                                          E
43456 -3 - II




         Finally,   Merz   ends      his SAG   with a statement of " what   really happened."   SAG at 12.


We again observe that we review only the record produced at trial.

         Affirmed.


         A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




         Hunt,.J.               ty




                                                         10
