                                                          "STATE Or WA3iiH:':-
                                                           201N MAR 10 AH 10: 00
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                  No. 69602-5-1


                     Respondent,                      DIVISION ONE


            v.



JOHN EDWARD FRANCK, JR.,                              UNPUBLISHED


                     Appellant.                       FILED: March 10.2014




       Cox, J. - John Franck Jr. appeals his judgment and sentence for felony

driving under the influence. He argues that the State failed to prove the corpus

delicti of the offense. We hold that the State established the corpus delicti that

he drove or was in actual physical control of the vehicle for purposes of the

charged crime.

       Franck also argues, and the State concedes, that the State failed to

present evidence to justify the imposition of a $1,000 emergency response cost

at sentencing. Therefore, we affirm the conviction but remand for further

proceedings consistent with this opinion.

       At 12:30 a.m. on April 18, 2012, patrol officer Bruce Hurst was dispatched

to a road in Federal Way after someone reported that a vehicle was in a ditch

with an occupant in the driver's seat. Approximately a minute and a half after the
dispatch, Officer Hurst arrived on the scene. He observed a truck in a ditch and
No. 69602-5-1/2



Franck standing outside the driver's side door. Officer Hurst did not see anyone

else in the area.


       Officer Hurst asked Franck if he needed medical attention and what

happened.    Franck told him that he lost control of the truck in a curve. When

Officer Hurst said he did not see a curve in the road, Franck said he lost control

because of new tires.


       At first, Officer Hurst could not tell if Franck was intoxicated. But when he

moved downwind from Franck, he testified that he could smell "an overwhelming

odor of alcohol." Two other officers testified that they smelled alcohol emanating

from Franck, observed Franck slurring his speech and swaying, and noticed that

his eyes were bloodshot and watery.

       Franck's manager later testified that the truck that was in the ditch was the

company vehicle assigned to Franck.

       The State charged Franck by amended information with felony DUI and

reckless driving.

       Before trial, Franck moved to dismiss for lack of corpus delicti. After

hearing testimony from a number of witnesses and argument, the trial court

denied this motion. The jury convicted Franck of felony DUI.

       At sentencing, the trial court imposed a $1,000 emergency response cost.

       Franck appeals.

                                CORPUS DELICTI

       Franck argues that there was insufficient evidence, independent of his

admission, to establish the corpus delicti of driving under the influence.
No. 69602-5-1/3



Specifically, he asserts that the State failed to prove that he drove or was in

actual physical control of the vehicle. We disagree.

       "Corpus delicti means the 'body of the crime' and must be proved by

evidence sufficient to support the inference that there has been a criminal act."1
A defendant's confession is not admissible unless independent corroborating

evidence establishes the corpus delicti ofthe offense.2 "The purpose ofthe
corpus delicti rule is to protect a defendant from an unjust conviction based on a

false confession alone; it prevents the possibility that a false confession was

obtained through police coercion or abuse and the possibility that a confession,

though voluntary, is false."3
       To establish the corpus delicti of driving under the influence, the State had

to present sufficient evidence, independent of Franck's admission, that he was

driving or in actual physical control of the vehicle while intoxicated.4
       The independent evidence may either be direct or circumstantial.5 "It is
sufficient if it prima facie establishes the corpus delicti."6 "Prima facie" in the


       1State v. Hendrickson. 140 Wn. App. 913, 919, 168 P.3d 421 (2007)
(internal quotation marks omitted) (quoting State v. Aten, 130 Wn.2d 640, 655,
927 P.2d 210 (1996)).

       2 State v. Hummel. 165 Wn. App. 749, 758, 266 P.3d 269 (2012), review
denied. 176Wn.2d 1023(2013).

       3State v. Rooks, 130 Wn. App. 787, 802, 125 P.3d 192 (2005).

       4 State v. Hamrick. 19 Wn. App. 417, 419, 576 P.2d 912 (1978).

       5 Hummel. 165 Wn. App. at 758-59.

       6 Id.
No. 69602-5-1/4



context of this rule means "'evidence of sufficient circumstances which would

support a logical and reasonable inference' of the facts sought to be proved."7

"In addition to corroborating a defendant's incriminating statement, the

independent evidence 'must be consistent with guilt and inconsistent with a[ ]

hypothesis of innocence.'"8
       In assessing whether there was sufficient evidence of the corpus delicti,

this court assumes the truth of the State's evidence and draws all reasonable

inferences from it in a light most favorable to the State.9 We review de novo the
trial court's corpus delicti determination.10
       In State v. Hendrickson, Division Two of this court concluded that the

State established the corpus delicti of driving under the influence.11 The court
explained, "The independent evidence here clearly provided prima facie proof of

corpus delicti in respect to whether Hendrickson was driving the car; the car the

officers found was registered to Hendrickson and Hendrickson was the only

person in the area."12 Moreover, "the officers noted that Hendrickson smelled



       7Aten, 130 Wn.2d at 656 (quoting State v. Vanqerpen, 125 Wn.2d 782,
796, 888P.2d 1177(1995)).

       8 Hendrickson. 140 Wn. App. at 920 (alteration in original) (internal
quotation marks omitted) (quoting Aten, 130 Wn.2d at 660).

       9 Aten, 130Wn.2dat658.

       10 State v. Pineda. 99 Wn. App. 65, 77-78, 992 P.2d 525 (2000).

       11 140 Wn. App. 913, 920, 168 P.3d 421 (2007).

       12 Id.
No. 69602-5-1/5



strongly of alcohol, that his eyes were bloodshot and watery, and that his face

was flushed."13

        Here, the evidence is similar to that in Hendrickson.14 Franck's manager
testified that the truck in the ditch was a company vehicle assigned to Franck.

Additionally, when the first officer arrived on the scene, he observed Franck

standing near the truck and Franck was the only person near the scene. This

independent evidence provides prima facie proof that Franck drove or was in

actual physical control of the truck at the time of the accident. Moreover, Franck

does not argue that the State failed to prove that he was intoxicated. The

evidence from the officers who responded to the scene of the accident was

sufficient to establish that he was. Thus, as in Hendrickson, the State

established the corpus delicti of the offense.

        Franck argues that Hendrickson is distinguishable from this case. He

points to several factual differences, but none are material.

        In Hendrickson. officers found the car that Hendrickson was driving at the

bottom ofa ravine.15 The keys were in the ignition.16 In contrast, Franck asserts
that the keys were not in the truck's ignition. Instead, keys were in Franck's




        13 Id,
        14 See id.

        15 Opening Brief of Appellant at 16 (citing Hendrickson, 140 Wn. App. at
917).

        16 Id (citing Hendrickson, 140 Wn. App. at 917).
No. 69602-5-1/6



pocket, but the officers failed to check if these keys belonged to the truck. He

also contends that there was no evidence that the truck had just crashed.

       But these distinguishing facts were not the basis for Division Two's

conclusion that the State established the copus delicti.^7 That court's conclusion
was based on the fact that the car was registered to Hendrickson, and

Hendrickson was the only person near the car.18 Here, there was evidence that
the vehicle was assigned to Franck, and he was the only person near the car.

Thus, these factual differences are not material to our conclusion.

       Franck also asserts that even though he was the only person in the area

at the time the officers arrived, the location of the truck was within walking

distance from a residential area and a park and ride. While this may be true, he

was the only person in the area at 12:30 a.m. Thus, this argument is not

persuasive.

       Finally, Franck asserts that this case is more like State v. Hamrick in

which Division Two concluded that that there was "no independent evidence or

inference connecting [Edgar Hamrick] with control of the car."19 But that case is
distinguishable.




       17
            Hendrickson, 140 Wn. App. at 920.

       18]cL
       1919 Wn. App. 417, 420, 576 P.2d 912 (1978): see also Appellant's
Opening Brief at 13-14.
No. 69602-5-1/7



         There, the first officer on the scene found a truck in a ditch and a car on

the shoulder.20 Both cars were damaged.21 The officer first spoke to Hamrick in
the middle of the road.22 "The officer testified that he was unable to ascertain

whether defendant owned either the pickup or the car, but that [Hamrick]

admitted he had been driving the car."23 The officer found an occupant in the car
but there were no details about the occupant's age, condition, or location in the

car.24

         Division Two concluded that "[ejxclusive of defendant's admissions, the

State's evidence establishes only that defendant was present when the officer

arrived at the scene of the accident."25 The court stated that it did "not have the

slight evidence necessary to logically and reasonably deduct that [Hamrick] was
driving the car."26
         In contrast, as previously discussed, there was sufficient evidence to

"logically and reasonably deduct" that Franck was driving this car.27 Thus, this
case is more like Hendrickson than Hamrick.



         20
               ]d at 418.
         21
               li
         22
               Id

         23
               14
         24
               Id

         25
               14 at 420.
          26
               Id.

          27
               Id.
No. 69602-5-1/8



         In sum, the State established the corpus delicti of the offense with

sufficient independent evidence.

                          EMERGENCY RESPONSE COST

         Franck also argues that the trial court acted outside of its statutory

authority when it imposed an emergency response cost. He asserts that this

court should strike the condition that Franck pay the $1,000 cost. The State

concedes that evidence should have been presented to the trial court to justify

the $1,000 emergency response cost. But it contends that the proper remedy,

given that Franck did not object below, is to remand to the trial court, so that the

State may present additional evidence to justify the cost. We agree with the

State.

         RCW 38.52.430 states that a person guilty of certain offenses involving

intoxication is liable for the emergency response cost:

         A person whose intoxication causes an incident resulting in an
         appropriate emergency response, and who, in connection with the
         incident, has been found guilty of or has had their prosecution
         deferred for (1) driving while under the influence of intoxicating
         liquor or any drug, RCW 46.61.502 ... is liable for the expense of
         an emergency response by a public agency to the incident.


         Following a conviction of an offense listed in this section, and prior
         to sentencing, the prosecution may present to the court
         information setting forth the expenses incurred by the public
         agency for its emergency response to the incident. Upon a
         finding by the court that the expenses are reasonable, the
         court shall order the defendant to reimburse the public
         agency.[2B]



         28
              (Emphasis added.)



                                            8
No. 69602-5-1/9



       Here, at sentencing, the trial court imposed a $1,000 emergency response

cost. We accept the State's concession that it failed to present information to the

trial court to justify the cost so that the court could determine that the cost is

reasonable. Moreover, we agree with the State that the proper remedy is to

remand this case.


       The States cites State v. Bergstrom to support remand.29 There, the
supreme court explained three approaches when a "sentencing court's offender

score determination is challenged on appeal for insufficient evidence of prior

convictions."30 While the issue in this case does not involve an offender score,

this issue involves insufficient evidence to support the emergency response cost.

       In Bergstrom, the relevant approach provides that "if the State alleges the

existence of prior convictions at sentencing and the defense fails to 'specifically

object' before the imposition of the sentence, then the case is remanded for

resentencing and the State is permitted to introduce new evidence."31
       Franck does not provide any authority to support his argument that the

proper remedy is to strike the cost without remand.

       Here, like Bergstrom. the proper remedy is remand. Because Franck

failed to object to the emergency response cost at sentencing, we remand so that

the State may present evidence in support of the request for this cost. The




       29 State v. Bergstrom, 162 Wn.2d 87, 169 P.3d 816 (2007).

       30 Id at 93.

       31 Id.
No. 69602-5-1/10



determination of the extent to which this cost is recoverable is a decision to be

made by the trial court.

                   STATEMENT OF ADDITIONAL GROUNDS

       Franck filed a statement of additional grounds in which he asserts that he

was not driving the truck. We need not address this argument as it is adequately

addressed in his appellate counsel's brief.32
       We affirm Franck's conviction, vacate the award of the emergency

response cost, and remand for further proceedings consistent with this opinion.



                                                          6t*.^T
WE CONCUR:




       32 See, e.g. .State v.Gomez, 152 Wn. App. 751, 754, 217 P.3d 391 (2009)
(refusing to review a defendant's statement of additional grounds because he
raised no new issues).



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