### FILED OCT.01,2015 In theOfficeofthe ClerkofCourt W AStateCourtofAppeals, Division III

IN THE COURT OF APPEALS OFTHE STATE OF WASHINGTON DIVISION THREE STATE OFWASHINGTON, 

### ) No. 32857-1-111 

### ) Appellant, 

### ) 

# 1 ) 

## 1 v. 

### ) ) 

# I i JEFFERY ROBERT MAY, 

### ) UNPUBLISHED OPINION 

### ) Respondent. 

### ) BROWN, J. - The State appealsthetrial court's corpus delicti dismissal ofits controlled substances homicide prosecution againstJeffery 

### R. Maywho confessed to providing methamphetaminetothe decedent, Danielle Dunn. The State contends the courterred in ruling his confession was not independently corroborated and erred by applying incorrect legal standards. Wedisagreewith 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 sawthe couple and noted Ms. Dunn appeared to be "pretty high." Clerk's Papers (CP) at52. The next morning, Mr. Fromm observed Ms. Dunn was looking a little better. Later, Mr. May ran into Mr. Fromm's home seeking helpwith Ms. DunnNo. 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 butfailed to revive Ms. Dunn. Mr. Maytold the medical personnel Ms. Dunn had used one halfgrams of methamphetamine. Ms. Dunn died from "acute methamphetamine overdose." CP at21. Officers found a box of unused syringes in Mr. May's motorhome, but no used syringes. Officers did not locate any empty bags, orother containers with trace evidence ofmethamphetamine. 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 ofmethamphetamine in his pocket. The State charged Mr. May with controlled sUbstances homicide. Mr. May successfully requested dismissal on corpus delicti grounds, arguing the Statefailed to show sufficient corroborating evidence independent ofhis confession to prove the charged crime. After an unsuccessful reconsideration request, the State appealed. ANALYSIS A. Corpus Delicti The issue is whetherthe 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 ofthe crime ofcontrolled substances homicide.



### 2No. 32857-1-111 State v. May
A trial court's pretrial dismissal ofcriminal charges forfailure to make a prima facie case ofguilt is reviewed de novo. State v. Montano, 169 Wn.2d 872,876,239 P.3d 360 (2010). In orderto dismiss the State's. case underthe corpus delicti rule, the court mustfind insufficient evidence ofthe corpus delicti to support admission ofthe 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 ofthe crime'" and must be proved by evidence sufficientto support the inference thatthere has been a criminal act. State v. Brockob, 159Wn.2d 311, 327,150 P.3d 59 (2006) (quoting State v. Aten, 130Wn.2d 640, 655, 927 P.2d 210 (1996». The corpus delicti rule arose from judicial distrust ofconfessions. CityofBremerlon v. Corbett, 106 Wn.2d 569,576,723 P.2d 1135 (1986). Courts feared confessions would be uncritically accepted byjuries, even ifevidence showed the admissions were involuntary, coerced. or untruthful. Aten, 130Wn.2d at 656-57. Washington courts may not considerthe accused's incriminating statements unless the State establishes the corpus delicti with independent proof. State v. Ray, 130Wn.2d 673,679, 926 P.2d 904 (1996). "In otherwords, the State must present evidence independent ofthe incriminating statement that the crime a defendant describedin the statementactually occurred." Brockob, 159Wn.2d at 328 (emphasis in original). Weview the State's evidence as true and view aI/ reasonable inferences in the light mostfavorable to the State. Aten, 130Wn.2d at 658. The independent evidence need not be sufficientto support a conviction, but it must provide "prima facie

3No. 32857-1-111 State v. May
corroboration" ofthe charged crime. Brockob, 159Wn.2d at 328. Prima facie corroboration ofa defendant's incriminating statement exists ifthe independent evidence supports a '''logical and reasonable inference ofthe facts soughtto be proved.'" Id. (quoting State v. Vangerpen, 125Wn.2d 782, 796,888 P.2d 1177 (1995)). In addition to corroborating a defendant's incriminating statement, the independent evidence must be consistentwith guilt and inconsistentwith 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 itwas delivered, resulting in the death ofthe user, is guilty ofcontrolled 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, independentofthe accused's statements sufficient to support a finding that the charged crime was committed by someone." State v. Bernal, 109Wn. 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 userwho recently met Mr. May. She appeared high when she arrived at Mr. May's motorhomethe evening before her death. No used syringes orempty bags containing traces ofmethamphetaminewere found in Mr. May's



### 4No. 32857-1-111 State v. May
trailer. Officers located a small bag containing one gram ofmethamphetamine in Mr. May's pocket, but no empty bags. Nothing connects the pocketed methamphetamineto the methamphetamine in Ms. Dunn's system. In Bernal, Division Two ofthis court affirmed the lowercourt's dismissal ofa controlled substances homicide charge based on similarfacts. There, the decedent died ofa 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 Bernalcourtfound withoutthe defendant's statement, the State had merely proved one ofthe two elements ofthe corpus delicti ­ that heroin had resulted in the decedent's death. Id. at 153. Thus, the courtfound the corpus delicti rule had not been satisfied, and affirmed thetrial court's dismissal ofthe charge. Id. at 154. Notably, the decedentwas a "naNe" intravenous user based on the lack oftrack 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 othergrounds by 178Wn.2d 153 (2013), Division Two held the corpus delicti rule
was satisfied for controlled substances homicidewhere, the defendant and decedent
werefriends and had used drugs together previously; the day before he died, the decedent sent his friends a picture ofhimselfholding a handful ofpills and a prescription bottle cap; the pills in the picture were identified as those with which he lateroverdosed; the decedentdid not have a prescription forthe pills butthe defendant



### 5

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# I :1 No. 32857-1-111 State v. May 

# I did; the defendant had filled herprescriptions that afternoon, and the defendant's 

# I prescription bottles were nearly emptythe nextday. Id. at 131. Mr. May's case is clearly distinguishablefrom Zillyette because no evidence shows a prior relationship between Mr. May and Ms. Dunn, priordrug usetogether, and
no connection between the methamphetaminefound 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 herdeath. The trial court correctly reasoned itwould need to speculate on her narcotics source, a level of prooffar belowthe required prima facie showing required. Assuming the truth ofthe State's evidence, insufficient corpus delicti exists independent ofMr. May's statement. Thus, ourfacts are more analogous to Bernalthan Zillyette; the Statefailed to produce sufficient evidence independent ofMr. May's statementto meet its burden. Aten, 130 Wn.2d at 660-61. We next turn to the State's standard ofproofarguments. First, U[t]he State has the burden of producing evidence sufficientto satisfythe corpus delicti rUle." State v. Pineda, 99 Wn. App. 65, 77, 992 P.2d 525 (2000). As discussed, prima facie corroboration ofa defendant's incriminating statement exists if the independent evidence supports a '''logical and reasonable inference'" ofthe facts soughtto be proved. Brockob, 159Wn.2d at 328 (quoting Vangerpen, 125Wn.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 oreven a preponderance ofthe evidence. It is sufficient if it is prima facie-if prima facie



### 6No. 32857·1·111 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 itwas 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 ofproof. Next,the State concedes the court did not specifically state it applied a multiple hypothesis test, but suggests the court employed "a tacit application ofthat rule." Appellant's Br. at 16. Historically, the multiple hypothesis rule is "that in orderto sustain
a conviction on circumstantial evidence, the circumstances proved by the state must not only be consistentwith each otherand consistent with the hypothesis that the accused is guilty, but also must be inconsistentwith any hypothesis ortheorywhich would establish, ortend to establish, his innocence." State v. Gillingham, 33 Wn.2d 847,854, 207 P.2d 737 (1949). In the context ofthe corpus delicti rule, however, our Supreme Court has held ifthe State's evidence supports both a hypothesis ofguilt and a hypothesis ofinnocence, the evidence is insufficientto corroborate a defendant's statement. Aten, 130 Wn.2d at 660-61. Stated differently, "ifthe State's evidence supports the reasonable inference ofa criminal explanation ofwhat caused the event and one that does not involve criminal agency, the evidence is not sufficient to corroborate the defendant's statement." Brockob, 159Wn.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



### 7No. 32857-1-111 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 insufficientto 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. Thetrial court properly dismissed the charge. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 

### 2.06.040.

WE CONCUR: 

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