Find Legal Information

Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       No. 66049-7-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
                 v.                         )
                                            )       UNPUBLISHED OPINION
jason matthew absher,                )
                                            )
                      Appellant.            )       FILED:  April 23, 2012

       Schindler, J.  --  Jason Absher challenges his jury conviction for attempted 

possession with intent to deliver OxyContin in violation of the Uniform Controlled 

Substances Act, RCW 9A.28.020 and RCW 69.50.401(1), (2)(a). Absher argues the 

trial court erred by denying his motion to suppress statements he made to a police 

informant and the admissions he made following arrest that he purchased 420 

OxyContin pills for $10,500.  Absher asserts that independent corroborating evidence 

does not establish the corpus delicti of the charged crime.  Because the corpus delicti 

rule does not apply to statements Absher made to the informant during the course of 

the crime, and those statements are properly considered along with the other 

independent corroborating evidence of the charged crime, we affirm. 

No. 66049-7-I/2

                                            FACTS

       Patricia Quinn has worked as a paid confidential informant with Auburn Police 

Detective Jeffrey Crawford since 2003.  In May 2009, Quinn offered to sell Jason 

Absher a large quantity of OxyContin pills for $25 each.  Detective Crawford listened to 

the telephone conversations between Absher and Quinn as they negotiated a deal.  

Absher agreed to meet Quinn at the Walmart parking lot at the Auburn SuperMall 

around 8:00 p.m. on May 14 to buy 420 OxyContin pills for $25 per pill.  Absher told 

Quinn he intended to buy the pills for himself and at least two other people.  

       Detective Douglas Faini watched as Absher arrived in his truck at the Walmart 

parking lot and pulled into a parking spot next to a dark Acura with a person sitting in 

the driver's seat.  The Acura driver got out of his car and got into Absher's truck.  Police 

observed Absher and the Acura driver make back-and-forth shuffling motions with their 

hands, consistent with counting money.  After a few minutes, the Acura driver got out of 

the truck and drove away.  

       After the Acura driver left, Absher called Quinn and told her he was waiting for a 

"guy from Milton to come in and bring the rest of the money."  A few minutes later, a 

Subaru pulled into the Walmart parking lot and parked next to Absher's truck.  The 

Subaru driver, later identified as Brandon Blokzyl, got out of his car and got into 

Absher's truck.  Police observed similar shuffling motions by the two men before the 

Subaru driver got out of the truck and returned to his car.  

       Absher then called Quinn and told her that he had the money but needed to 

                                               2 

No. 66049-7-I/3

count it.  Quinn suggested Absher count the money in her truck.  Absher got out of his 

truck and got into Quinn's truck.  Absher pulled out "[r]olls and wads of money" from his 

two front pockets, counted out $10,500, and placed the money on the console of the 

truck.  In exchange, Quinn gave Absher 420 imitation OxyContin pills.  Absher said that 

50 pills were for him, 150 for his friend, and the rest were for some other people in 

Milton.  After Absher left Quinn's truck, the police arrested him.  
       Absher waiver his Miranda1 rights.  Absher admitted that he purchased 420 

OxyContin pills for $10,500 and said that Blokzyl gave him money for 150 pills.  The 

next day, Absher provided a written statement admitting that he purchased the pills for 

"several people."  

       Prior to trial, Absher moved to suppress the statements he made to Quinn and to 

the police under the corpus delicti rule.  The trial court denied the motion.  A jury found 

Absher guilty as charged and the court imposed a standard range sentence.   

                                           analysis

       Absher contends the trial court erred in denying his motion to suppress the 

statements he made to Quinn and to the police under the corpus delicti rule.  Absher 

claims the State did not present independent corroborating evidence to establish the 

corpus delicti of the charged crime.  Specifically, that the State did not present

corroborating evidence of his intent to deliver OxyContin.

       Under the corpus delicti rule, a defendant's confession or admissions are not 

admissible unless independent corroborating evidence establishes the corpus delicti of 

the crime.  State v. Aten, 130 Wn.2d 640, 656, 927 P.2d 210 (1996).  Corpus delicti is 

       1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                               3 

No. 66049-7-I/4

usually proven by the following two elements: "(1) an injury or loss (e.g., death or 

                                               4 

No. 66049-7-I/5

missing property) and (2) someone's criminal act as the cause thereof." City of 

Bremerton v. Corbett, 106 Wn.2d 569, 573-74, 723 P.2d 1135 (1986). However, 

attempt crimes do not require an injury or loss and the corpus delicti of an attempt 

crime involves proof that the crime charged was committed by a particular person.  

State v. Smith, 115 Wn.2d 775, 781, 801 P.2d 975 (1990).  

       We review the corpus delicti determination de novo. State v. Pineda, 99 Wn. 

App. 65, 77-78, 992 P.2d 525 (2000).  The State's independent evidence may be either 

direct or circumstantial. The evidence need not establish the necessary elements of 

the corpus delicti beyond a reasonable doubt or even by a preponderance of the 

evidence; it is sufficient if the evidence prima facie establishes the corpus delicti. Aten, 

130 Wn.2d at 656. "Prima facie" in this context of the corpus delicti rule means "

'evidence of sufficient circumstances which would support a logical and reasonable 

inference' of the facts sought to be proved." Aten, 130 Wn.2d at 656 (quoting State v. 

Vangerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995)).

       In assessing the sufficiency of the State's corpus delicti evidence, a reviewing 

court must assume the truth of the State's evidence and view all reasonable inferences 

in the light most favorable to the State.  Aten, 130 Wn.2d at 658. 

       To establish the corpus delicti in this case, the State had to present evidence

that Absher (1) took a substantial step toward (2) possessing a controlled substance (3)

with the intent to deliver.  RCW 9A.28.020(1); RCW 69.50.401(1), (2)(a); see, e.g., 

Smith, 115 Wn.2d at 782.  A "substantial step" is conduct strongly corroborative of the 

actor's criminal purpose.  Smith, 115 Wn.2d at 782 (citing State v. Workman, 90 Wn.2d 

                                               5 

No. 66049-7-I/6

443, 451-52, 584 P.2d 382 (1978) (adopting Model Penal Code (Proposed Official Draft 

1962) definition)).

       The premise of Absher's argument is that the State may not use the statements 

he made to the confidential informant Quinn to establish the corpus delicti.  However,

as we held in State v. Dyson, 91 Wn. App. 761, 763, 959 P.2d 1138 (1998), the corpus 

delicti rule does not apply to statements that were made "as part of the crime itself."  

       In Dyson, the defendant argued that the statements he made while negotiating 

an agreement with an undercover officer should be suppressed as a confession under 

the corpus delicti rule.  Dyson, 91 Wn. App. at 762.  On appeal, we rejected Dyson's 

argument that the statements he made to the undercover officer should not be 

considered in establishing the corpus delicti because the statements were "made as 

part of the crime itself." Dyson, 91 Wn. App. at 762-63.  

       The statements were made as part of the crime itself. Dyson cites no 
       authority for the proposition that statements made during the course of 
       the crime amount to a confession or admission.  By definition, a 
       confession is an expression of guilt as to a past act. No such confession 
       is involved in this case.  The trial court did not err in admitting evidence of 
       the statements.
Dyson, 91 Wn. App. at 763.2  

       Under Dyson, the corpus delicti rule does not apply to Absher's statements to 

Quinn.  Those statements, as well as the other unchallenged corroborating evidence, 

were therefore properly considered as part of the State's independent evidence 

establishing the corpus delicti of the charged crime.  The statements Absher made to 

Quinn on the telephone and while in her truck in the Walmart parking lot during the 

       2 (Footnotes omitted.)

                                               6 

No. 66049-7-I/7

exchange of money for pills constituted a substantial step toward the commission of the 

charged crime.  See, e.g., State v Roby, 67 Wn. App. 741, 743-44, 747, 840 P.2d 218 

(1992) (requesting controlled substance from undercover officer and displaying cash 

constituted substantial step toward committing crime of possession of controlled 

substance).  Viewing the reasonable inferences in the light most favorable to the State, 

independent corroborating evidence supports the conclusion that Absher negotiated a 

deal for the purchase of OxyContin pills, provided the agreed amount of cash, and took 

possession of what he believed to be OxyContin pills with the intention of distributing 

the pills.  

       Absher does not cite any support for his claim that statements like those he 

made to Quinn during negotiations and in the course of their transaction are subject to 

the corpus delicti rule.  The cases he cites and relies on do not involve statements 

made during the course of or as part of the crime.  See, e.g., Aten, 130 Wn.2d at 644-

54, 657 (defendant in second degree manslaughter case made "several incriminating 

and somewhat contradictory statements" to various people after the child's death); 

Corbett, 106 Wn.2d at 571-73 (defendants charged with driving under the influence or 

physical control of a vehicle under the influence made statements or admissions about 

whether they had been driving after accidents or interaction with officers); State v. 

Brockob, 159 Wn.2d 311, 318-21, 150 P.3d 59 (2006) (defendants made statements 

regarding intent after being found by officers to be in possession of controlled 

substances); State v. Dow, 168 Wn.2d 243, 247, 227 P.3d 1278 (2010) (defendant 

charged with child molestation made exculpatory statements during a police interview 

                                               7 

No. 66049-7-I/8

after events surrounding alleged offense).

       Because the State carried its burden of establishing the corpus delicti, the trial 

court did not err in denying the motion to suppress and admitting Absher's statements 

to the police.

       Affirmed.

WE CONCUR:

                                               8