State v. Ray

Dolliver, J.

— The trial court dismissed a molestation charge against Defendant when it found the State did not introduce sufficient evidence to establish the corpus delicti of the crime, independent of Defendant’s confession. The Court of Appeals reversed the trial court and reinstated the charge. We find the corpus delicti was not established, so we reverse the Court of Appeals.

On August 25, 1992, at around 1:00 a.m., Defendant and his wife were asleep in their bedroom when their three-year-old daughter, L.R., came into the room and asked for a glass of water. The Defendant, who normally slept in the nude, got out of bed and left the room with L.R. to get her the water. Sometime thereafter, Defendant returned to the bedroom and awoke his wife. He was upset and crying. He had a discussion with his wife, who immediately became upset and ran to L.R.’s bedroom to check on the child. The wife found L.R. asleep in her bed. Defendant’s wife returned to their bedroom, and after further discussion, Defendant placed an emergency call to his sexual deviancy therapist.

Based on Defendant’s statements to his wife and his therapist, the police were contacted and an investigation began. Approximately two weeks after the incident, police interviewed Defendant, who confessed the alleged crime to the investigating officers. Defendant’s confession to the police was consistent with the admissions he had made to his wife and his therapist. L.R. was also interviewed as part of the investigation. Two months after the incident, Defendant was charged with first degree child molestation. The trial judge determined L.R. was incompetent to testify at trial. L.R. had made out-of-court statements to investigators during a poorly conducted interview, but those hearsay statements were inconclusive and unreliable, thus inadmissible. The only information regarding the alleged crime, other than that given in the previous paragraph, comes from Defendant’s confessions.

In his confession to the police, Defendant said he gave L.R. a glass of water and took her back to her bedroom. After she crawled into bed, he took her hand and placed it on his penis. After a few seconds, his daughter pulled her hand away, saying something to the effect of "don’t like to touch you.” Clerk’s Papers at 12. Defendant stopped and returned to his bedroom where he admitted the act to his wife.

Defendant stipulated to the facts in the police report and waived his right to trial, but he argued the State had failed to establish the corpus delicti independent of Defendant’s confession and admissions. The trial judge initially found the State had established the corpus delicti, and Defendant was found guilty on March 22, 1993.

Defendant filed a motion for reconsideration on the corpus delicti finding. After hearing additional oral argument, the trial judge retracted the earlier decision and found an insufficient showing of the corpus delicti. Because the State failed to establish the corpus delicti of the crime independent of Defendant’s confession, the trial court excluded the confession and found insufficient evidence to support the charge. The trial court dismissed the molestation charge against Defendant with prejudice. The State appealed the decision.

In an unpublished opinion, the Court of Appeals disagreed with the trial court and held the extremely slight facts supported a reasonable and logical deduction that touching for the purpose of sexual gratification occurred. The court ruled Defendant’s confession could be considered, and it reinstated the molestation charge. State v. Ray, No. 33582-1-I (Wash. Ct. App. Nov. 6, 1995). This court granted Defendant’s petition for review. State v. Ray, 129 Wn.2d 1003 (1996).

Before considering whether the State established the corpus delicti of the alleged crime, we first address a separate issue raised by the State. Although the State defends the Court of Appeals’ decision, the State urges this court to reject the traditional corpus delicti doctrine and adopt in its place the "trustworthiness” standard used by the federal courts. See, e.g., Opper v. United States, 348 U.S. 84, 93, 75 S. Ct. 158, 99 L. Ed. 101, 45 A.L.R.2d 1308 (1954). The State claims the "trustworthiness” standard is more workable.

If this court abandoned the corpus delicti rule, it would have to overrule nearly 100 years of well-settled case law. See State v. Marselle, 43 Wash. 273, 276, 86 P. 586 (1906). This court has infrequently discussed under what conditions it should disregard the doctrine of stare decisis and overturn an established rule of law. An eloquent opinion on the matter was given by Justice Hale in State ex rel. State Fin. Comm. v. Martin, 62 Wn.2d 645, 665-66, 384 P.2d 833 (1963):

Through stare decisis, the law has become a disciplined art—perhaps even a science—deriving balance, form and symmetry from this force which holds the components together. It makes for stability and permanence, and these, in turn, imply that a rule once declared is and shall be the law. Stare decisis likewise holds the courts of the land together, making them a system of justice, giving them unity and purpose, so that the decisions of the courts of last resort are held to be binding on all others.

Without stare decisis, the law ceases to be a system; it becomes instead a formless mass of unrelated rules, policies, declarations and assertions—a kind of amorphous creed yielding to and wielded by them who administer it. Take away stare decisis, and what is left may have force, but it will not be law.

To be uniformly applied, and equally administered, the rules of law should be both just and adaptable to the society they govern. A bad law uniformly administered is equally unjust and uniformly bad. If a rule laid down by the courts proves in time to be a bad one, applying the bad rule evenly does not provide equal justice for all. It may be equal, but it will not be justice. And courts are instituted among men to do justice between them, and between men and their government. So, to do justice, courts have devised a means of getting rid of bad rules, yet, at the same time, preserving stare decisis. Rules of law, like governments, should not be changed for light or transient causes; but, when time and events prove the need for a change, changed they must be.

See generally Fred W. Catlett, The Development of the Doctrine of Stare Decisis and the Extent to Which It Should Be Applied, 21 Wash. L. Rev. 158 (1946). This court should reverse itself on an established rule of law only if the rule is shown to be incorrect or harmful. State v. Lucky, 128 Wn.2d 727, 735, 912 P.2d 483 (1996) (citing In re Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970)).

The State claims that times have changed, such that the traditional corpus delicti rule is unworkable with most modern crimes. The State’s arguments are unconvincing. First, the State has not shown how first degree child molestation differs from traditional sex crimes such as indecent liberties, see State v. Stuhr, 1 Wn.2d 521, 96 P.2d 479 (1939), so as to render the corpus delicti rule unworkable in this case.

Second, and more importantly, this Court has previously considered the arguments for adopting the "trustworthiness” standard, and it has consistently declined to abandon the corpus delicti rule. State v. Aten, 130 Wn.2d 640, 663, 927 P.2d 210 (1996); State v. Smith, 115 Wn.2d 775, 784, 801 P.2d 975 (1990); City of Bremerton v. Corbett, 106 Wn.2d 569, 578, 723 P.2d 1135 (1986). This court unanimously applied the corpus delicti doctrine without question in other recent cases. See State v. Vangerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995); State v. Riley, 121 Wn.2d 22, 32, 846 P.2d 1365 (1993).

We are bound to follow our previous rulings on the issue unless the State can show how those rulings are incorrect or harmful. The State has made no such showing, so we continue to apply the corpus delicti doctrine.

Under the corpus delicti rule, the court may not consider a defendant’s confessions or admissions unless the State has established the corpus delicti through independent proof. Vangerpen, 125 Wn.2d at 796. It is sufficient if the independent evidence prima facie establishes the corpus delicti. Vangerpen, 125 Wn.2d at 796. When determining whether the corpus delicti was established, this court "assumes the truth of the State’s evidence and all reasonable inferences from it in a light most favorable to the State.” Aten, 130 Wn.2d at 658 (footnote omitted).

First degree child molestation consists of a person having, or causing another person under the age of 18 to have,

sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.

RCW 9A.44.083(1). Sexual contact is defined as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.” RCW 9A.44.010(2).

To establish the corpus delicti of first degree child molestation, the State had to establish, independent of Defendant’s confession, that touching of the sexual organs occurred between Defendant and L.R. In other cases involving indecent liberty crimes, the criminal act has been established through numerous means. See, e.g., State v. Clevenger, 69 Wn.2d 136, 417 P.2d 626 (1966) (physical injuries to three year old established the corpus delicti); State v. Acheson, 48 Wn. App. 630, 740 P.2d 346 (1987) (same), review denied, 110 Wn.2d 1004 (1988). See also State v. Stuhr, 1 Wn.2d 521, 96 P.2d 479 (1939) (oificer observed suspect in dark corner of garage performing unnatural act with a young girl); State v. Mathis, 73 Wn. App. 341, 869 P.2d 106 (defendant’s testimony at trial, along with victim’s statement that defendant had kissed her, put his hands down her underpants, and allowed her to sleep overnight at his house established the corpus delicti), review denied, 124 Wn.2d 1018 (1994); State v. Biles, 73 Wn. App. 281, 871 P.2d 159 (child testified that her father performed the alleged acts), review denied, 124 Wn.2d 1011 (1994); State v. Frey, 43 Wn. App. 605, 718 P.2d 846 (1986) (child demonstrated explicit sexual acts with unclothed, anatomically correct dolls consistent with her earlier statements attributing such acts to defendant).

When compared to these previous corpus delicti cases involving indecent liberty crimes, the facts in this case, independent of Defendant’s confession, do not establish the corpus delicti of child molestation. The Court of Appeals summed up the independent evidence in this case:

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.

State v. Ray, 33582-1-I, slip op. at 4 (Wash. Ct. App. Nov. 6, 1995). These facts suggest that something out of the ordinary occurred, but it is a leap in logic to conclude that any kind of criminal conduct occurred, let alone the specific conduct of first degree child molestation. Defendant’s emergency call to his sexual deviancy therapist is inconclusive; one’s placing an emergency call to a therapist shows that the patient is disturbed by something, but the unrest could be caused by unfulfilled urges, nightmares, or a subjective sense of guilt. See State v. Aten, 79 Wn. App. 79, 90, 900 P.2d 579 (1995) ("[T]he corpus delicti doctrine is specifically designed to prevent convictions based solely on the defendant’s sense of guilt . . . .”), review granted, 128 Wn.2d 1016 (1996) (footnote omitted).

The sparse facts surrounding Ray’s getting a glass of water for his daughter fail to rule out Ray’s criminality or innocence. See Aten, 130 Wn.2d at 660. C\C\orpus delicti is not established when independent evidence supports reasonable and logical inferences of both criminal agency and noncriminal cause.”). Even though Ray speculatively could have molested L.R., and even though he had the opportunity to do so, the mere opportunity to commit a criminal act, standing alone, provides no proof that the defendant committed the criminal act. State v. Pennewell, 23 Wn. App. 777, 782, 598 P.2d 748, review denied, 92 Wn.2d 1036 (1979). Without any evidence, direct or circumstantial, that Ray molested L.R., the State has failed to establish the corpus delicti, and Ray’s confession was properly excluded by the trial court.

The Court of Appeals is reversed, and the trial court’s order dismissing the charge is reinstated.

Durham, C.J., and Smith, Guy, Johnson, Madsen, Alexander, and Sanders, JJ., concur.