State v. Angulo

• Decision Date: 10 February 2009
• Docket Number: No. 26492-1-III.,26492-1-III.
• Citation: 148 Wn. App. 642,200 P.3d 752
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Ricardo L. ANGULO, Appellant.

200 P.3d 752

148 Wn. App. 642

STATE of Washington, Respondent, v. Ricardo L. ANGULO, Appellant.

No. 26492-1-III.

Court of Appeals of Washington, Division 3.

February 10, 2009.

Dennis W. Morgan, Attorney at Law, Ritzville, WA, for Appellant.

John G. Prentiss, Adams County Prosecutor's Office, Ritzville, WA, for Respondent.

OPINION PUBLISHED IN PART

KORSMO, J.

¶ 1 Ricardo Lopez Angulo was convicted of two counts of first degree child rape after his confession to the offenses was related to the jury. The child victim, however, did not describe any acts of sexual intercourse during her testimony, but only described behavior that would constitute molestation or attempted rape. The primary argument Mr. Lopez Angulo presents is a claim that his attorney erred in not raising a corpus delicti challenge to the admission of his confession. He argues that the corpus delicti rule should have excluded his confession because there was no independent proof of penetration, the distinguishing feature between molestation and rape. Believing that he construes the corpus delicti requirement too broadly and that it would not serve the purpose of the rule to exclude the confession, we affirm.

BACKGROUND

¶ 2 Mr. Lopez Angulo was charged with two counts of first degree child rape involving S.S. (born October 9, 1996). Prior to trial, the court conducted an ER 404(b) hearing to determine the admissibility of other misconduct evidence. The trial court ruled that evidence concerning prior sexual misconduct with S.'s sister, C.M., was admissible as a common scheme or plan.

¶ 3 At trial, S. testified that she lived with Deloris Hinojosa, her grandmother, and Mr. Lopez Angulo. On at least two occasions during the summer of 2006, Mr. Lopez Angulo touched her in places she did not want to be touched. These events occurred on two different evenings after Ms. Hinojosa had left for work.

¶ 4 On the first occasion S. was asleep in her bed. She woke up to Mr. Lopez Angulo touching her both inside and outside of her pajamas. S. described the second incident as one involving Mr. Lopez Angulo "humping" or moving his hips up and down. He was not wearing any clothing and his private parts were "like a stick." They touched her privates.

¶ 5 Detective Dale Wagner of the Adams County Sheriff's Office testified concerning what S. had told him. She did not describe any penetration during her pre-trial interviews. Detective Wagner testified that Mr. Lopez Angulo admitted touching S. The detective testified that on the first occasion, his finger was "in her crack" approximately one-quarter inch and on the second occasion, his erect penis entered S.'s vagina once or twice, approximately one-quarter inch.

¶ 6 Prior to C.'s testimony, the trial court instructed the jury that her testimony was for the limited purpose of showing a common scheme or plan and not to show propensity. C. is S.'s older sister and had lived with Ms. Hinojosa and Mr. Lopez Angulo. C. described an incident in May 2002, when she fell asleep in her bed fully clothed and woke up to find Mr. Lopez Angulo in bed beside her. Her blouse was now open. Mr. Lopez Angulo was feeling her breast and trying to undo her belt. He put his tongue in her mouth.

¶ 7 Ms. Hinojosa testified that she moved Mr. Lopez Angulo out of her home in October 2006 because he kept leaving S. at home alone while she was at work. A week or two later, S. reported the abuse to Ms. Hinojosa. Ms. Hinojosa made a report to police in February or March 2007. Ms. Hinojosa knew of the allegations C. had made against Mr. Lopez Angulo in 2002, but she did not believe C.

¶ 8 A clinical examination showed no physical signs of penetration. Given S.'s physical maturity, however, that would not be unusual.

¶ 9 Mr. Lopez Angulo denied the allegations made by S. and C. He stated that the allegations were fabricated in retaliation for his relationship with another woman, which caused Ms. Hinojosa to kick him out. He testified that, because English was not his first language, he was not completely fluent, and Detective Wagner bullied him into confessing. In rebuttal, Detective Wagner denied bullying Mr. Lopez Angulo. The detective testified that Mr. Lopez Angulo did not complain of a language barrier in his interview and that he was able to listen and respond fluently in English.

¶ 10 The jury found Mr. Lopez Angulo guilty of both counts. He appealed to this court, claiming that his attorney erred in not presenting a corpus delicti challenge, the trial court erred in admitting evidence that he abused the other child, and that the prosecutor erred in closing argument. We discuss the first claim in the published portion of this opinion and the other claims in the unpublished portion.

ANALYSIS

Corpus Delicti

¶ 11 Appellant contends that his confession was wrongly admitted into evidence due to his counsel's error because there was no independent proof of penetration, the element distinguishing rape from molestation, so the charged offense was never established. There is conflicting case law on both sides of that question. He argues that without independent proof of each element of the charged crime, no confession can ever be admitted into evidence. We believe his argument is inconsistent with the history of the corpus delicti rule in this state and also is contrary to the purpose of the rule.

¶ 12 The standards of review of a claim of ineffective assistance of counsel are well understood. The Sixth Amendment guarantees the right to counsel. More than the mere presence of an attorney is required. The attorney must perform to the standards of the profession. Counsel's failure to live up to those standards will require a new trial when the client has been prejudiced by counsel's failure. State v. McFarland, 127 Wash.2d 322, 334-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance, the defendant must show both that his counsel erred and that the error was so significant, in light of the entire trial record, that it deprived him of a fair trial. Id. at 690-692, 104 S.Ct. 2052.

¶ 13 History. The term corpus delicti has at least two distinct meanings in Washington law. The first use of the term dates to territorial times. Timmerman v. Territory, 3 Wash.Terr. 445, 17 P. 624 (1888). There the court made reference, in a review of the sufficiency of the evidence in a criminal case, to the government's burden of proving the corpus delicti beyond a reasonable doubt. Id. at 450, 17 P. 624. Several cases in the early years of statehood similarly used the term in describing whether or not the State had met its ultimate burden of proving a case beyond a reasonable doubt. E.g., State v. Pienick, 46 Wash. 522, 90 P. 645 (1907); State v. Gates, 28 Wash. 689, 69 P. 385 (1902).

¶ 14 The phrase is also used in the related manner of referring to whether or not there is sufficient evidence to admit a confession into evidence. The first consideration of this evidentiary rule occurred in State v. Marselle, 43 Wash. 273, 86 P. 586 (1906). There the defendant had confessed to the crime of unlawful carnal knowledge of a child under the age of 18. The young woman testified at trial that there had been no sexual contact with the defendant and that she had lied to police earlier. Nonetheless, the trial court admitted statements made by the defendant to two police officers that there had been unlawful carnal knowledge. The jury returned a verdict on the lesser included offense of assault with intent to commit rape. Id. at 275-276, 86 P. 586.

¶ 15 The Supreme Court reversed, finding prejudicial error in the admission of the defendant's statements where the complaining witness denied that any crime at all had taken place. "A confession not corroborated by independent evidence of the corpus delicti is not sufficient to support a conviction of crime." Id. at 276, 86 P. 586. Since the victim denied that any rape had taken place, and there was no other evidence to establish a criminal act had occurred, the admission of the defendant's statement was error and the conviction was reversed. Id. The court remanded the case for a new trial on the included offense. Id. at 277, 86 P. 586.

¶ 16 The contours of the evidentiary corpus delicti confession rule were clarified in State v. Meyer, 37 Wash.2d 759, 226 P.2d 204 (1951). There the court declared that before a confession or admission could be admitted into evidence, the prosecution must first present a prima facie case establishing the corpus delicti of the crime. Id. at 763-764, 226 P.2d 204. The corpus delicti of a case consisted of establishing the existence of "a certain act or result forming the basis of the criminal charge and the existence of a criminal agency as the cause of such act or result." Id. at 763, 226 P.2d 204. The identity of the criminal actor, although a fact that had to be proven at trial, was not an element of the corpus delicti. Id.

¶ 17 The evidentiary corpus delicti confession rule was further refined in State v. Lung, 70 Wash.2d 365, 423 P.2d 72 (1967). Lung had involved a second degree murder prosecution where the victim's body had never been discovered. The victim's estranged husband claimed to have accidentally shot the victim when a loaded rifle in his closet discharged when he went to the closet for his jacket. The victim was standing by the telephone and was killed by the single shot. Panicking, he put her body in his truck, and then drove to the river and threw her body in it. Id. at 367, 423 P.2d 72. After disposing of the body, he returned the gun to his business where he normally kept it. Police later discovered it there, with a live round in the chamber. He put the victim's coat, purse, and shoes back in her...