                                                                               FILED
                                                                             OCT. 01, 2015
                                                                    In the Office of the Clerk of Court
                                                                  W A State Court of Appeals, Division III




              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                 DIVISION THREE

    STATE OF WASHINGTON,                         )         No. 32857-1-111
                                                 )
                        Appellant,               )
1                                                )
                 v.                              )
1                                                )
i   JEFFERY ROBERT MAY,                          )         UNPUBLISHED OPINION

I                       Respondent.
                                                 )
                                                 )

          BROWN, J. -   The State appeals the trial court's corpus delicti dismissal of its

    controlled substances homicide prosecution against Jeffery R. May who confessed to

    providing methamphetamine to the decedent, Danielle Dunn. The State contends the

    court erred in ruling his confession was not independently corroborated and erred by

    applying incorrect legal standards. We disagree with the State and affirm.

                                             FACTS

          After meeting earlier in the day, Mr. May brought Ms. Dunn to his motorhome

    parked in Ben Fromm's driveway. Ms. Dunn was a longtime intravenous drug user. Mr.

    Fromm saw the couple and noted Ms. Dunn appeared to be "pretty high." Clerk's

    Papers (CP) at 52. The next morning, Mr. Fromm observed Ms. Dunn was looking a

    little better. Later, Mr. May ran into Mr. Fromm's home seeking help with Ms. Dunn
No. 32857-1-111
State v. May


because she was not responding. After determining Ms. Dunn was not breathing, Mr.

Fromm contacted 911. Medics soon arrived but failed to revive Ms. Dunn. Mr. May told

the medical personnel Ms. Dunn had used one half grams of methamphetamine. Ms.

Dunn died from "acute methamphetamine overdose." CP at 21.

       Officers found a box of unused syringes in Mr. May's motorhome, but no used

syringes. Officers did not locate any empty bags, or other containers with trace

evidence of methamphetamine. When asked where Ms. Dunn obtained the drug, Mr.

May responded, '''I gave it to her.'" CP at 27. He told officers after Ms. Dunn injected

the methamphetamine, she became disoriented, started speaking strange, and vomited.

Mr. May reported he requested help after she stopped breathing.

       Officers arrested Mr.. May. During his arrest search, officers found a small bag

with a gram of methamphetamine in his pocket. The State charged Mr. May with

controlled sUbstances homicide. Mr. May successfully requested dismissal on corpus

delicti grounds, arguing the State failed to show sufficient corroborating evidence

independent of his confession to prove the charged crime. After an unsuccessful

reconsideration request, the State appealed.

                                       ANALYSIS

                                    A. Corpus Delicti

      The issue is whether the trial court erred in dismissing the controlled substances

homicide charge against Mr. May. The State contends the evidence was sufficient to

establish the corpus delicti of the crime of controlled substances homicide.



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State v. May


       A trial court's pretrial dismissal of criminal charges for failure to make a prima

facie case of guilt is reviewed de novo. State v. Montano, 169 Wn.2d 872,876,239

P .3d 360 (2010). In order to dismiss the State's. case under the corpus delicti rule, the

court must find insufficient evidence of the corpus delicti to support admission of the

defendant's statements into evidence at trial. State v. Brockob, 159 Wn.2d 311, 321,

150 P .3d 59 (2006).

       "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. State v. Brockob,

159 Wn.2d 311, 327,150 P.3d 59 (2006) (quoting State v. Aten, 130 Wn.2d 640, 655,

927 P.2d 210 (1996». The corpus delicti rule arose from judicial distrust of confessions.

City of Bremerlon v. Corbett, 106 Wn.2d 569,576,723 P.2d 1135 (1986). Courts

feared confessions would be uncritically accepted by juries, even if evidence showed

the admissions were involuntary, coerced. or untruthful. Aten, 130 Wn.2d at 656-57.

Washington courts may not consider the accused's incriminating statements unless the

State establishes the corpus delicti with independent proof. State v. Ray, 130 Wn.2d

673,679, 926 P.2d 904 (1996). "In other words, the State must present evidence

independent of the incriminating statement that the crime a defendant described in the

statement actually occurred." Brockob, 159 Wn.2d at 328 (emphasis in original).

      We view the State's evidence as true and view aI/ reasonable inferences in the

light most favorable to the State. Aten, 130 Wn.2d at 658. The independent evidence

need not be sufficient to support a conviction, but it must provide "prima facie



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State v. May


corroboration" of the charged crime. Brockob, 159 Wn.2d at 328. Prima facie

corroboration of a defendant's incriminating statement exists if the independent

evidence supports a '''logical and reasonable inference of the facts sought to be

proved.'" Id. (quoting State v. Vangerpen, 125 Wn.2d 782, 796,888 P.2d 1177 (1995)).

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

evidence must be consistent with guilt and inconsistent with a hypothesis of innocence.

Id.

       Here, to satisfy the corpus delicti rule the State must provide independent

evidence demonstrating a controlled substance homicide occurred pursuant to RCW

69.50.415(1). "A person who unlawfully delivers a controlled substance ... which

controlled substance is subsequently used by the person to whom it was delivered,

resulting in the death of the user, is guilty of controlled substances homicide." RCW

69.50.415(1). Methamphetamine is a controlled substance. RCW 69.50.206(d)(2). In a

controlled substance homicide case, "the corpus delicti rule requires that the State

produce evidence, independent of the accused's statements sufficient to support a

finding that the charged crime was committed by someone." State v. Bernal, 109 Wn.

App. 150, 152,33 P.3d 1106 (2001) (emphasis in original).

      The State's evidence, independent of Mr. May's confession, shows Ms. Dunn

was a regular intravenous drug user who recently met Mr. May. She appeared high

when she arrived at Mr. May's motorhome the evening before her death. No used

syringes or empty bags containing traces of methamphetamine were found in Mr. May's



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State v. May


trailer. Officers located a small bag containing one gram of methamphetamine in Mr.

May's pocket, but no empty bags. Nothing connects the pocketed methamphetamine to

the methamphetamine in Ms. Dunn's system.

       In Bernal, Division Two of this court affirmed the lower court's dismissal of a

controlled substances homicide charge based on similar facts. There, the decedent

died of a heroin overdose. The defendant lived in the same trailer park as the

decedent. Bernal, 109 Wn. App. at 152. Ms. Bernal told officers she provided drugs to

the decedent a few days earlier. Id. The Bernal court found without the defendant's

statement, the State had merely proved one of the two elements of the corpus delicti ­

that heroin had resulted in the decedent's death. Id. at 153. Thus, the court found the

corpus delicti rule had not been satisfied, and affirmed the trial court's dismissal of the

charge. Id. at 154. Notably, the decedent was a "naNe" intravenous user based on the

lack of track marks on his body. Id. at 157 (Bridgewater, J., dissenting).

       By contrast, in State v. Zil/yette, 163 Wn. App. 124,256 P.3d 1288 (2011), rev'd

on other grounds by 178 Wn.2d 153 (2013), Division Two held the corpus delicti rule

was satisfied for controlled substances homicide where, the defendant and decedent

were friends and had used drugs together previously; the day before he died, the

decedent sent his friends a picture of himself holding a handful of pills and a

prescription bottle cap; the pills in the picture were identified as those with which he

later overdosed; the decedent did not have a prescription for the pills but the defendant




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I    did; the defendant had filled her prescriptions that afternoon, and the defendant's

     prescription bottles were nearly empty the next day. Id. at 131.

            Mr. May's case is clearly distinguishable from Zillyette because no evidence

     shows a prior relationship between Mr. May and Ms. Dunn, prior drug use together, and

     no connection between the methamphetamine found on Mr. May and the drug causing

     Ms. Dunn's death. Here, Ms. Dunn was a regular intravenous drug user, who first

     appeared very high when arriving at Mr. May's home not long before her death. The

     trial court correctly reasoned it would need to speculate on her narcotics source, a level

     of proof far below the required prima facie showing required. Assuming the truth of the

     State's evidence, insufficient corpus delicti exists independent of Mr. May's statement.

     Thus, our facts are more analogous to Bernal than Zillyette; the State failed to produce

     sufficient evidence independent of Mr. May's statement to meet its burden. Aten, 130

     Wn.2d at 660-61. We next turn to the State's standard of proof arguments.

            First, U[t]he State has the burden of producing evidence sufficient to satisfy the

     corpus delicti rUle." State v. Pineda, 99 Wn. App. 65, 77, 992 P.2d 525 (2000). As

     discussed, prima facie corroboration of a defendant's incriminating statement exists if

     the independent evidence supports a '''logical and reasonable inference'" of the facts

     sought to be proved. Brockob, 159 Wn.2d at 328 (quoting Vangerpen, 125 Wn.2d at

     796). The court here specifically stated, "The independent evidence need not be of

     such character as would establish the corpus delicti beyond a reasonable doubt or even

     a preponderance of the evidence. It is sufficient if it is prima facie-if prima facie



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State v. May


establishes the corpus delicti." Report of Proceedings (RP) at 17. In ruling, the court

orally stated it used the "logical and reasonable inference" standard. RP at 23.

Because the court specified the standard it was using and nothing in our record

suggests it applied a different standard, the State incorrectly asserts the court held the

State to a higher burden of proof.

       Next, the State concedes the court did not specifically state it applied a multiple

hypothesis test, but suggests the court employed "a tacit application of that rule."

Appellant's Br. at 16. Historically, the multiple hypothesis rule is "that in order to sustain

a conviction on circumstantial evidence, the circumstances proved by the state must not

only be consistent with each other and consistent with the hypothesis that the accused

is guilty, but also must be inconsistent with any hypothesis or theory which would

establish, or tend to establish, his innocence." State v. Gillingham, 33 Wn.2d 847,854,

207 P.2d 737 (1949). In the context of the corpus delicti rule, however, our Supreme

Court has held if the State's evidence supports both a hypothesis of guilt and a

hypothesis of innocence, the evidence is insufficient to corroborate a defendant's

statement. Aten, 130 Wn.2d at 660-61. Stated differently, "if the State's evidence

supports the reasonable inference of a criminal explanation of what caused the event

and one that does not involve criminal agency, the evidence is not sufficient to

corroborate the defendant's statement." Brockob, 159 Wn.2d at 330. Here, no

evidence in this court's record shows the court required the State to disprove any

reasonable hypothesis of innocence. Rather, the State's evidence shows a possibility



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    State v. May


    Ms. Dunn, an experienced drug user, obtained methamphetamine independent of Mr.

    May and a possibility Mr. May provided the lethal drug. These competing theories are

    insufficient to corroborate Mr. May's statement. Without more, the corpus delicti rule

    was not satisfied.

           Given our analysis, we conclude the court used the appropriate legal tests; the

    State did not meet its burden to provide independent evidence to corroborate Mr. May's

    confession. The trial court properly dismissed the charge.

           Affirmed.

           A majority of the panel has determined this opinion will not be printed in the

    Washington Appellate Reports, but it will be filed for public record pursuant to RCW

    2.06.040.




    WE CONCUR:


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    Siddoway, C.J.
                    I         I




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