Filed
Washington State
Court of Appeals
Division Two
June 14, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46605-8-II
Respondent,
v.
ZAIDA YESENIA CARDENAS-FLORES, PUBLISHED OPINION
Appellant.
WORSWICK, J. — A jury returned a verdict finding Zaida Cardenas-Flores guilty of
second degree assault of a child. Cardenas-Flores appeals her conviction, asserting that (1) the
State failed to establish the corpus delicti of second degree assault of a child with evidence
independent of her statements to police, (2) the State failed to present sufficient evidence that
she intentionally assaulted the victim, (3) the State failed to prove jurisdiction was proper with
sufficient evidence that the crime had occurred in Washington, (4) the trial court’s jury
instruction defining “assault” relieved the State of its burden to prove second degree assault of a
child, and (5) the prosecutor committed misconduct in closing argument by arguing that
Cardenas-Flores failed to give a plausible explanation for the victim’s injuries. Cardenas-Flores
also asserts that (6) her defense counsel was ineffective for (a) failing to object to the admission
of her statements on corpus delicti grounds and (b) failing to object to the prosecutor’s alleged
misconduct in closing argument. Finally, Cardenas-Flores appeals her sentence, asserting that
the sentencing court erred by imposing legal financial obligations (LFOs) without first inquiring
about her ability to pay the LFOs. We affirm Cardenas-Flores’s conviction but remand for
No. 46605-8-II
resentencing solely on the LFO issue, for the sentencing court to make an individualized inquiry
into Cardenas-Flores’s current or likely future ability to pay.
FACTS
Cardenas-Flores gave birth to CA in late November, 2013. CA’s father, Carlos Austin,
lived with Cardenas-Flores in Vancouver. On December 3, Cardenas-Flores brought CA to the
doctor for his first regular medical exam, which exam showed that CA’s health was normal. At
the December 3 visit, Cardenas-Flores stated she was having “some difficulty at home with the
baby because . . . there wasn’t a lot of support in the Vancouver area.” Report of Proceedings
(RP) at 57.
On December 18, Austin accidently rolled over onto CA’s leg while the two were
sleeping in bed. After the accident, Cardenas-Flores and Austin brought CA to the emergency
room to have his leg examined. Dr. Jonathan Stein examined CA at the emergency room and
had X-rays taken of CA’s left leg. After reviewing the X-rays, Stein determined that CA’s leg
was normal and did not have any fractures or other abnormalities.
On December 20, Cardenas-Flores brought CA to the doctor for a regular wellness check
and to follow up on CA’s leg injury. CA’s doctor examined CA’s leg and reviewed the
emergency room X-rays. CA’s doctor noted some mild swelling on CA’s left foot and
confirmed that his December 18 X-rays did not show any fractures on his left leg.
On December 23, when CA was approximately 3 weeks old, Cardenas-Flores and Austin
again brought CA to the emergency room, stating as their chief complaint that CA’s left thigh
had swollen. New X-rays were taken of CA’s leg. Dr. Cathleen Lang examined CA and saw
that his left thigh was swollen and that he was in obvious pain whenever his leg was moved.
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No. 46605-8-II
Lang reviewed CA’s new X-rays and found that CA had a displaced fracture on his left femur,
meaning that “the two pieces of bones [were] apart.” RP at 64. Lang also noted that CA’s femur
fracture occurred recently because it did not show any signs of healing, which would typically
develop within seven to ten days. Lang stated that, during the period of time when the fracture
showed no signs of healing, CA would be in “excruciating pain” any time his diaper was
changed or his leg moved. RP at 69. Lang believed that CA’s injury could have been caused by
someone yanking and turning CA’s leg while he was stabilized.
Lang spoke with Cardenas-Flores and Austin to determine what could have caused CA’s
injury. The only explanation for CA’s injury that Cardenas-Flores and Austin offered was the
December 18 rollover accident. Although Cardenas-Flores and Austin stated that the only
explanation for CA’s injury was the rollover accident, Austin told Lang that Cardenas-Flores had
heard “a cracking or popping sound in [CA’s] leg” before taking him to the hospital. RP at 134.
Lang did not find Cardenas-Flores’s and Austin’s explanation for CA’s injury plausible
in light of the December 18 X-rays that did not show CA had a displaced femur fracture after the
rollover accident. Lang also did not believe that CA could have suffered a displaced femur
fracture from a rollover accident because the displaced femur fracture was likely caused by a
combination of compression plus torsion or a twist. Additionally, Lang stated that the femur
bone is one of the largest and strongest bones in the body and that a displaced femur fracture
would require “more force than what’s going to be going on in normal everyday life.” RP at 80.
Based on the nature of CA’s injury and on her discussions with Cardenas-Flores and Austin,
Lang became “highly concern[ed]” that CA’s injury was non-accidental, and she contacted the
police and Child Protective Services. RP at 81.
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No. 46605-8-II
That same day or early the next morning, Cardenas-Flores agreed to speak with
Vancouver Police Detective Deanna Watkins in a hospital conference room. Sergeant Barb Kipp
and Detective Brendan McCarthy were also present in the room. Cardenas-Flores told the
officers about the events that transpired between the December 18 rollover incident and the
December 23 emergency room visit. When Cardenas-Flores told the officers about the rollover
incident, the officers responded that the rollover could not have caused CA’s injury based on the
nature of the injury and on the earlier X-rays that did not show a fracture.
At some point during the interview, Cardenas-Flores stated that she may have “tugged at
[CA’s leg] too hard while [he was] in the car seat.” RP at 186. Cardenas-Flores further
explained that CA may have been injured when she tried to get him out of the car seat too
quickly while the car seat strap was not yet unfastened. Cardenas-Flores then told the officers
that she “didn’t want to lie” and that “she wanted to believe the car seat caused [CA’s] injury,
but . . . that wasn’t what caused it.” RP at 200. Cardenas-Flores explained to the officers that
she had pushed CA’s left leg out and down to try to straighten it so the leg would fit under CA’s
car seat strap. Cardenas-Flores stated that after pushing CA’s leg out and down, she “knew [she]
did something” because CA started crying in a manner different from his normal cry. RP at 202.
Cardenas-Flores further stated that after being told about the broken femur, “she knew that it was
from that incident, when she pushed his leg down.” RP at 202.
The State charged Cardenas-Flores by amended information with second degree assault
of a child, alleging that the crime took place between December 20, 2013 and December 23,
4
No. 46605-8-II
2013. At trial the State called Lang, Stein, Watkins,1 and McCarthy, who all testified
consistently with the facts as stated above.
Cardenas-Flores and Austin testified for the defense. Cardenas-Flores testified that, after
CA’s December 20 doctor visit, she drove Austin and CA to Quincy, Washington to pick up
Austin’s three other children. Cardenas-Flores stated it was a ten hour round trip drive to Quincy
and back to Vancouver and that CA did not seem particularly fussy during the trip. She said that
the family arrived back at the home at around 4:30 PM on December 21. Cardenas-Flores stated
that, although CA was fussy about his leg, she did not see any progression in CA’s leg injury that
evening or the following morning, December 22. Cardenas-Flores also stated that CA spent
most of this time in his car seat because he appeared uncomfortable when moving around but
that she had to take him out of the car seat to breastfeed and change his diaper every few hours.
Cardenas-Flores testified that the family drove to Salem, Oregon on the morning of
December 22 to attend their church and that CA slept in his car seat during the church service.
Cardenas-Flores stated that the family went to Austin’s mother’s home in Salem after the service
and returned to Vancouver that evening. Cardenas-Flores further stated that CA remained in his
car seat except when she was feeding or changing him. Cardenas-Flores said that the family
slept in late on Monday, December 23 and left the home with CA in the late afternoon to run
some errands. Cardenas-Flores also said that she heard a cracking in CA’s leg sometime on
December 23.
1
Prior to Watkins’s testimony, the trial court held a CrR 3.5 hearing to determine the
admissibility of Cardenas-Flores’s statements to police. Cardenas-Flores’s defense counsel
conceded at the hearing that her statements to police were admissible and did not raise any
corpus delicti issues.
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No. 46605-8-II
Regarding her statements to police, Cardenas-Flores testified that she continually told the
officers throughout two hours of questioning that CA sustained his leg fracture during the
December 18 rollover accident but that the officers suggested the accident could not have caused
CA’s fracture. Cardenas-Flores denied taking CA out of his car seat too quickly or tugging at his
leg, but she admitted that she had told this to the officers.2 Cardenas-Flores stated that she lied to
the police officers about these events because she felt pressured to provide an explanation for
CA’s injuries that the officers would accept as true. Cardenas-Flores maintained that the
December 18 rollover accident was the cause of CA’s femur fracture.
Austin testified that between December 18 and December 23, he never saw Cardenas-
Flores get stressed or hurt CA in any way. Austin further testified that after the rollover
accident, he became worried about injuring CA again and, therefore, did not provide for CA’s
care without Cardenas-Flores’s assistance. On cross-examination, Austin testified that he was
“watching [CA] every second he was in his car seat on Monday, the 23rd.” RP at 359.
During closing, the State argued:
Now, defendant got up there, [Austin] got up there, they never gave a
plausible explanation for how this kid broke his femur. And it seems like this entire
time, [Austin] and the defendant were the ones around the kid. Seems like they
would have an idea of how a femur gets broken. And Dr. Stein and Dr. Lang said
it would be immediately obvious when this injury happens. The kid would be
crying differently than normal, the kid would be acting differently.
RP at 405. Defense counsel did not object to this argument.
The trial court provided the jury with the following instruction, to which Cardenas-Flores
did not object:
2
Cardenas-Flores denied telling the officers that she had pushed CA’s leg out and down, stating
that she told them she had twisted CA’s leg.
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No. 46605-8-II
An assault is an intentional touching or striking of another person that is
harmful or offensive regardless of whether any physical injury is done to the person.
A touching or striking or [sic] is offensive if the touching or striking would offend
an ordinary person who is not unduly sensitive.
Clerk’s Papers (CP) at 20.
The jury returned a verdict finding Cardenas-Flores guilty of second degree assault of a
child. As part of her sentence, the trial court imposed $3,109 in LFOs. The trial court checked a
box next to a preprinted language on Cardenas-Flores’s judgment and sentence finding that she
“is presently indigent but is anticipated to be able to pay financial obligations in the future.” CP
at 30. Cardenas-Flores did not object to this finding at sentencing. Cardenas-Flores appeals her
conviction and sentence.
ANALYSIS
I. CORPUS DELICTI
Cardenas-Flores first asserts that the trial court erred by admitting evidence of her
statements to police because the State failed to establish the corpus delicti of second degree
assault of a child with evidence independent of her statements.3 In response, the State asserts
3
Although Cardenas-Flores frames her corpus delicti challenge as concerning the sufficiency of
evidence used to convict her of second degree assault of a child, it is clear from the context of
her arguments that she is challenging the jury’s consideration of her statements as evidence at
trial, which challenge necessarily concerns the evidentiary admission of her statements. See,
e.g., Br. of Appellant at 23 (“A factfinder may not consider an accused person’s statements
unless the prosecution prima facie establishes the corpus delicti of the charged crime by
evidence independent of those statements.”). Moreover, when considering whether the State
presented sufficient evidence to sustain a conviction, we examine all the evidence at trial, and all
the inferences that may reasonably be drawn from that evidence, in a light most favorable to the
State. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). Therefore, unless a criminal
defendant successfully demonstrates that certain evidence was improperly admitted at trial, we
must consider that evidence in determining whether the totality of evidence at trial was
constitutionally sufficient to sustain a conviction. Accordingly, we must first address whether
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No. 46605-8-II
that Cardenas-Flores waived any challenge to the admission of her statements on corpus delicti
grounds by failing to raise the issue at trial. We agree with the State that Cardenas-Flores
waived her contention with the admissibility of her statements by failing to raise a corpus delicti
challenge to the evidence at trial.
The corpus delicti rule is a judicially created rule of evidence that sets forth the standard
for laying a proper foundation before admitting a criminal defendant’s confession as evidence at
trial. State v. C.D.W., 76 Wn. App. 761, 763, 887 P.2d 911 (1995). The purpose of the corpus
delicti rule is that, standing alone, a defendant’s statement is not sufficient to support the
inference that the defendant committed the charged crime. State v. Dow, 168 Wn.2d 243, 249,
227 P.3d 1278 (2010); State v. Aten, 130 Wn.2d 640, 656, 927 P.2d 210 (1996). The corpus
delicti rule is not mandated by either the Washington Constitution or the United States
Constitution. Dow, 168 Wn.2d at 249-50 (citing Opper v. United States, 348 U.S. 84, 93-94, 75
S. Ct. 158, 99 L. Ed. 101 (1954)). Because the corpus delicti rule is not constitutionally
mandated, we “may refuse to review any claim of error [regarding corpus delicti] which was not
raised in the trial court.” RAP 2.5; C.D.W., 76 Wn. App. at 763-64.
Cardenas-Flores argues that she may raise a corpus delicti issue for the first time on
appeal under RAP 2.5(a)(2) because the doctrine involves sufficiency of the evidence.
Cardenas-Flores, and the concurrence, rely in part on Dow in asserting that she may raise a
corpus delicti challenge for the first time on appeal. Concurrence at 24-25. We disagree with
this analysis for three reasons. First, the issue of waiver and the preservation requirements of
Cardenas-Flores’s statements were properly admitted at trial, or whether she had waived any
challenge to the admission of her statements, before turning to whether the State presented
sufficient evidence to convict her of second degree assault of a child.
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No. 46605-8-II
RAP 2.5 was not before the Dow court as the defendant had objected to admission of his
confession on corpus delicti grounds at trial. See State v. Dow, 142 Wn. App. 971, 974, 176 P.3d
597 (2008) (establishing the fact that defendant had “moved to suppress the statements he made
during a police interview, arguing that these statements were inadmissible because of lack of
corpus delicti”) (emphasis added), rev’d, 168 Wn.2d 243. Second, it is well established that a
claim of insufficient evidence in support of a conviction is an issue of constitutional magnitude
that an appellant may raise under RAP 2.5(a)(3) for the first time on appeal. State v. Baeza, 100
Wn.2d 487, 488, 670 P.2d 646 (1983). Thus, in reaffirming the firmly established principle that
the corpus delicti rule is “not constitutionally mandated,” the Dow court implicitly rejected the
concurrence’s proposition that RAP 2.5(a)(3) allows Cardenas-Flores to raise the issue for the
first time on appeal. Dow, 168 Wn.2d at 249.4 Accordingly, any error in admitting evidence
subject to the corpus delicti rule does not fall under RAP 2.5(a)(3)’s exception for a “manifest
error affecting a constitutional right.” (Emphasis added). Finally, unlike here, the State in Dow
conceded at trial and on appeal that the only evidence it had in support of the defendant’s crime
was the defendant’s confession. 168 Wn.2d at 246. Thus, in resolving the defendant’s preserved
4
Cardenas-Flores also asserts that our Supreme Court’s remand order in State v. Grogan, 168
Wn.2d 1039, 234 P.3d 169 (2010) suggests that Dow had overturned prior Court of Appeals
precedent that held a defendant must object to the admission of statements on corpus delicti
grounds to preserve the issue for appeal. Although our Supreme Court had remanded State v.
Grogan, 147 Wn. App. 511, 519, 195 P.3d 1017 (2008) (holding in part that defendant waived
corpus delicti challenge by failing to object at trial), for reconsideration in light of Dow, the
remand order did not explicitly state that Grogan’s waiver analysis was incorrect. Accordingly,
we do not consider the Grogan remand order in determining whether Cardenas-Flores waived
her contention with the admission of her statements by failing to object on corpus delicti grounds
at trial.
9
No. 46605-8-II
corpus delicti claim, the Dow court’s remand for reversal of his conviction appears to have been
done as a matter of judicial efficiency rather than to announce overturning decades of appellate
court precedent holding that a corpus delicti claim is waived if not preserved in the trial court.
C.D.W., 76 Wn. App. at 763-64.
We decline to address this issue for the first time on appeal. 5
II. SUFFICIENCY OF THE EVIDENCE
Next, Cardenas-Flores asserts that the State failed to present sufficient evidence that (1)
she intentionally assaulted CA and (2) the assault took place in Washington. We disagree.
5
We note that the requirement of an objection at trial to the admission of the defendant’s
statements on corpus delicti grounds preserves the State’s ability to present additional evidence
establishing the corpus delicti. State v. Pietrzak, 110 Wn. App. 670, 680, 41 P.3d 1240 (2002);
State v. McConville, 122 Wn. App. 640, 649, 94 P.3d 401 (2004). Absent such a requirement,
defense counsel would have a clear incentive to remain silent about the State’s lack of evidence
supporting the corpus delicti at trial so as to secure a reversal of the client’s conviction on appeal.
This result does not support the interests of justice or the judicial efficiency created by requiring
the resolution of issues at the trial level. An objection at trial to the admission of a defendant’s
statements on corpus delicti grounds also preserves the State’s ability to seek admission of the
statements under RCW 10.58.035, which statute permits admission of defendant’s statements
even where “independent proof of the corpus delicti is absent.” See Dow, 168 Wn.2d at 254
(holding that trial court properly admitted defendant’s statements under RCW 10.58.035 despite
lack of independent evidence establishing the corpus delicti but reversing conviction for lack of
sufficient evidence). Additionally, it appears that several other states addressing this issue have
held that corpus delicti arguments must be preserved for appeal by raising a timely objection at
trial. See, e.g., State v. Mann, 768 S.E.2d 138, 143 (N.C. Ct. App. 2014); Scott v. State, 147
So.3d 5, 6 (Fla. L. Weekly 2013); Nowling v. State, 955 N.E.2d 854, 863 n.4 (Ind. 2011); State v.
Puckett, 191 Ohio App. 3d 747, 754, 947 N.E.2d 730 (2010) (failure to object waives all but
plain error); State v. Bough, 152 S.W.3d 453, 465 (Tenn. 2004); Commonwealth v. Chambliss,
847 A.2d 115, 120 (Pa. Super. Ct. 2004); State v. Edwards, 116 S.W.3d 511, 545 (Mo. 2003);
People v. Ish, 252 Mich. App. 115, 116, 652 N.W.2d 257 (Mich. Ct. App. 2002) (failure to
object waives all but plain error); People v. Sally, 12 Cal.App.4th 1621, 1628, 16 Cal. Rptr.2d
161 (1993).
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No. 46605-8-II
Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the
evidence in the light most favorable to the State, could find the elements of the charged crime
beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000).
We interpret all reasonable inferences in the State’s favor. State v. Hosier, 157 Wn.2d 1, 8, 133
P.3d 936 (2006). Direct and circumstantial evidence carry the same weight. State v. Varga, 151
Wn.2d 179, 201, 86 P.3d 139 (2004). Credibility determinations are for the trier of fact and are
not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
A. Intent
To convict Cardenas-Flores of second degree assault of a child as charged here, the State
had to prove beyond a reasonable doubt that she (1) intentionally assaulted another person (2)
who was then less than 13 years old and thereby (3) recklessly inflicted (4) substantial bodily
harm. RCW 9A.36.130(1)(a); RCW 9A.36.021(1)(a); State v. Hovig, 149 Wn. App. 1, 7-8, 202
P.3d 318 (2009). Cardenas-Flores challenges only the element that she intentionally assaulted
CA, arguing that the State’s evidence did not prove that she intended to cause CA substantial
bodily injury. This argument misconstrues the State’s burden of proving intent where, as here, it
charges second degree assault of a child based on an actual battery because an “[a]ssault by
battery . . . does not require specific intent to inflict substantial bodily harm.” State v. Daniels,
87 Wn. App. 149, 155, 940 P.2d 690 (1997).6 Thus, where the State charges second degree
6
Our Supreme Court recognizes three forms of assault in Washington:
“(1) an attempt, with unlawful force, to inflict bodily injury upon another
[attempted battery]; (2) an unlawful touching with criminal intent [actual battery];
and (3) putting another in apprehension of harm whether or not the actor intends to
inflict or is capable of inflicting that harm [common law assault].”
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No. 46605-8-II
assault of a child based on an actual battery, it need only prove beyond a reasonable doubt that
the defendant intended to do the physical act constituting an assault.7 State v. Keend, 140 Wn.
App. 858, 867, 166 P.3d 1268 (2007); State v. Hall, 104 Wn. App. 56, 62, 14 P.3d 884 (2000).
Here, Watkins testified that Cardenas-Flores told officers that she had pushed CA’s leg
down and out to straighten it and that, after pushing CA’s leg in this manner, CA began crying
differently than his normal cry. Watkins further testified that Cardenas-Flores told officers that
she knew her conduct in pushing CA’s leg down was the cause of his broken femur. This was
sufficient evidence from which the jury could find Cardenas-Flores intentionally did the physical
State v. Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994) (alteration in original) (quoting State v.
Bland, 71 Wn. App. 345, 353, 860 P.2d 1046 (1993)). The State here charged Cardenas-Flores
with second degree assault of a child based on an actual battery. RCW 9A.36.021(1)(a).
7
Cardenas-Flores asserted in her brief and at oral argument that State v. Jarvis, 160 Wn. App.
111, 246 P.3d 1280 (2011), stands for the proposition that the State is required to present
evidence of criminal intent to prove an assault by battery. State v. Cardenas-Flores, No. 46605-
8-II (Jan. 12, 2016) at 1 min., 20 sec.-1 min., 34 sec. But Jarvis does not stand for the
proposition that an assault by battery requires proof that the defendant intended to commit an
assault and, instead, rejected this very proposition, stating:
Jarvis argues that “intent” requires some element of malice or ill will. She cites no
authority for this proposition. In fact, the intent required for assault is merely the
intent to make physical contact with the victim, not the intent that the contact be a
malicious or criminal act. State v. Hall, 104 Wn. App. 56, 62, 14 P.3d 884 (2000).
160 Wn. App. at 119. Cardenas-Flores also asserted at oral argument that, absent a requirement
that the State prove criminal intent to commit an assault, a parent could be convicted of fourth
degree assault for simply providing standard caregiving duties such as dressing a child because
such duties require an intent to make physical contact with another person. Cardenas-Flores, No.
46605-8-II (Jan. 12, 2016) at 2 min., 12 sec.-3 min., 14 sec. This assertion overlooks that an
intentional touching must be “‘harmful or offensive’” to constitute an assault. Jarvis, 160 Wn.
App. at 119 (quoting State v. Tyler, 138 Wn. App. 120, 130, 155 P.3d 1002 (2007)). And, here,
the jury was so instructed. Because an intentional touching must be harmful or offensive to
constitute an assault, Cardenas-Flores’s concern regarding a parent’s standard caregiving duties is
unfounded.
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No. 46605-8-II
act (forcefully straightening CA’s leg) that resulted in his substantial bodily injury and, thus,
constituted an assault by battery. Although Cardenas-Flores recanted her statements to police at
trial, it was for the jury to decide the credibility of both her initial statements and of her later
recantation at trial. Accordingly, we hold that the State presented sufficient evidence in support
of the intent element required to prove second degree assault of a child by battery.
B. Jurisdiction
In every criminal prosecution, the State carries the burden of proving jurisdiction beyond
a reasonable doubt. State v. Norman, 145 Wn.2d 578, 589, 40 P.3d 1161 (2002). In general, the
State satisfies this burden by proving that the alleged crime was committed in Washington State.
Norman, 145 Wn.2d at 589; see also RCW 9A.04.030(1) (Stating in relevant part that
jurisdiction exists over “[a] person who commits in the state any crime, in whole or in part.”).
Although the evidence at trial showed that Cardenas-Flores and CA were in Oregon during a
portion of the charging period, there was sufficient evidence at trial to support the jury’s finding
that the crime occurred in Washington.
Here, Cardenas-Flores testified that she and her family returned to Washington from
Oregon on the evening of December 22 and that she heard the cracking in CA’s leg and his
subsequent unusual cry the following day. This testimony, coupled with Cardenas-Flores’s
admission to police that she had tried to straighten CA’s leg and that she knew this act caused
CA’s leg injury, was sufficient evidence from which the jury could find that the crime occurred
on December 23, while Cardenas-Flores and CA were in Washington. Moreover, Lang’s
testimony that CA’s femur fracture would cause excruciating pain, together with Cardenas-
Flores’s testimony that while in Oregon CA slept through a church service and was around
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No. 46605-8-II
Austin’s family members, further supports the inference that the assault did not occur during that
Oregon trip. Accordingly, we hold that the State presented sufficient evidence to establish
proper jurisdiction.
III. ASSAULT INSTRUCTION
Next, Cardenas-Flores asserts that the trial court’s jury instruction defining assault
lowered the State’s burden of proving that she committed second degree assault of a child
against her son. However, Cardenas-Flores did not object to the trial court’s assault instruction
at trial. Even assuming without deciding that the issue is properly before us under RAP
2.5(a)(3), Cardenas-Flores fails to show any error in the trial court’s assault instruction.
“Jury instructions are ‘sufficient when they allow counsel to argue their theory of the
case, are not misleading, and when read as a whole properly inform the trier of fact of the
applicable law.’” State v. Douglas, 128 Wn. App. 555, 562, 116 P.3d 1012 (2005) (quoting
Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996)). Here, the trial court
instructed the jury:
An assault is an intentional touching or striking of another person that is
harmful or offensive regardless of whether any physical injury is done to the person.
A touching or striking or [sic] is offensive if the touching or striking would offend
an ordinary person who is not unduly sensitive.
CP at 20.
Cardenas-Flores asserts that this standard instruction defining an assault by battery, taken
from 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 35.50, at 164 (3d
ed. Supp. 2014-2015) (WPIC) was inadequate when applied to an assault by battery committed
by a parent against his or her own infant. Specifically, Cardenas-Flores argues that the assault
instruction was inadequate because it did not require the jury to find (1) a specific intent to inflict
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No. 46605-8-II
substantial bodily injury or (2) an unlawful touching. Cardenas-Flores does not cite to any case
or statute supporting her claim that the standard assault definition is inadequate in prosecutions
for second degree assault of a child. And, as we addressed above, an assault by battery does not
require specific intent to inflict substantial bodily harm.
Cardenas-Flores asserts that the trial court was required to include in its standard assault
instruction the bracketed phrase “with unlawful force” because, in general, parents are privileged
to touch their children in a manner that autonomous adults may find offensive. See note on use
following WPIC 35.50 at 165 (“Include the phrase ‘with unlawful force” if there is a claim of
self defense or other lawful use of force.”). While use of the “with unlawful force” phrase may
be appropriate in an assault of a child prosecution against a parent asserting that the use of force
against his or her child was lawful, here Cardenas-Flores denied that her act of touching CA
caused his injury, instead contending that CA’s injury was caused by Austin’s earlier rollover
accident. Absent a claim that she used lawful force when recklessly causing CA’s substantial
bodily injury, use of the phrase “with unlawful force” would have resulted in the jury having to
speculate as to what conduct constitutes lawful force.
Therefore, inclusion of the bracketed language would have been confusing and
misleading to the jury. Accordingly, we hold that the standard assault instruction as provided
here adequately informed the jury of the applicable law and allowed Cardenas-Flores to argue
her theory of the case, and thus, Cardenas-Flores fails to demonstrate instructional error
warranting a new trial.
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No. 46605-8-II
IV. PROSECUTORIAL MISCONDUCT
Next, Cardenas-Flores asserts that the prosecutor committed misconduct in closing
argument by arguing that she had a burden to provide a plausible explanation for CA’s injury.
We disagree.
To succeed on her prosecutorial misconduct claim, Cardenas-Flores must demonstrate
both that the prosecutor’s conduct was improper and that the improper conduct resulted in
prejudice. State v. Emery, 174 Wn.2d 741, 759-61, 278 P.3d 653 (2012). Additionally, because
she did not object at trial to the conduct of which she complains on appeal, Cardenas-Flores
waived her argument unless she carries the additional burden of showing that the alleged
misconduct was “so flagrant and ill intentioned that an instruction could not have cured the
resulting prejudice.” Emery, 174 Wn.2d at 760-61.
During closing arguments, “[c]ounsel are permitted latitude to argue the facts in evidence
and reasonable inferences” flowing from those facts. State v. Smith, 104 Wn.2d 497, 510, 707
P.2d 1306 (1985). And we review allegedly improper closing arguments by the prosecutor
“within the context of the prosecutor’s entire argument, the issues in the case, the evidence
discussed in the argument, and the jury instructions.” State v. Dhaliwal, 150 Wn.2d 559, 578, 79
P.3d 432 (2003). In general, a prosecutor’s argument that shifts the burden to the defense is
improper and amounts to flagrant and ill intentioned misconduct. In re Pers. Restraint of
Glasmann, 175 Wn.2d 696, 713, 286 P.3d 673 (2012).
Cardenas-Flores contends that the following argument by the prosecutor improperly
shifted the burden to the defense to provide a plausible explanation for CA’s displaced femur
fracture:
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No. 46605-8-II
Now, defendant got up there, [Austin] got up there, they never gave a
plausible explanation for how this kid broke his femur. And it seems like this entire
time, [Austin] and the defendant were the ones around the kid. Seems like they
would have an idea of how a femur gets broken. And Dr. Stein and Dr. Lang said
it would be immediately obvious when this injury happens. The kid would be
crying differently than normal, the kid would be acting differently.
RP at 405. When read in context, the prosecutor’s argument did not improperly shift the burden
to the defense to provide a plausible explanation for CA’s injury. Instead, the prosecutor merely
argued that the explanation for CA’s injury that Cardenas-Flores and Austin had provided during
their trial testimony was not plausible in light of evidence that CA’s femur fracture was not
present in his previous X-ray and in light of medical testimony that the rollover accident would
not have likely caused that injury.
Although defendants are not obligated to testify or produce evidence at trial, if the
defendant choses to testify, that testimony is not immunized from attack by the prosecution.
State v. Vassar, 188 Wn. App. 251, 260, 352 P.3d 856 (2015). “On the contrary, the evidence
supporting a defendant’s theory of the case is subject to the same searching examination as the
State’s evidence.” State v. Contreras, 57 Wn. App. 471, 476, 788 P.2d 1114 (1990). Because
Cardenas-Flores elected to testify about all the events that transpired with CA during the State’s
charging period and because she stated that the rollover accident was the only explanation for
CA’s fractured femur, the prosecution was permitted to argue that her explanation was not
plausible in light of the other evidence at trial. Accordingly, we hold that Cardenas-Flores
cannot demonstrate that the prosecutor committed misconduct during closing argument.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, Cardenas-Flores asserts that her defense counsel was ineffective for failing to raise
a corpus delicti challenge to the admission of her statements at trial. Cardenas-Flores also asserts
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No. 46605-8-II
that her defense counsel was ineffective for failing to object to the prosecutor’s alleged
misconduct in shifting the burden of proof during closing argument and for failing to request a
limiting instruction in response to the same. Again, we disagree.
To demonstrate ineffective assistance of counsel, Cardenas-Flores must show that her
defense counsel’s conduct was deficient and that the deficient performance resulted in prejudice.
State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). To show prejudice, Cardenas-
Flores must show a reasonable probability that, but for counsel’s purportedly deficient
performance, the outcome of the trial would have differed. Reichenbach, 153 Wn.2d at 130. If
Cardenas-Flores fails to establish either prong on the ineffective assistance of counsel test, we
need not examine the other prong. State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).
A. Corpus Delicti
Cardenas-Flores first asserts that her defense counsel was ineffective for failing to
challenge the admission of her statements on corpus delicti grounds at trial. Because the State
presented sufficient evidence independent of Cardenas-Flores’s statements to establish the
corpus delicti of second degree assault of a child, Cardenas-Flores cannot demonstrate the
requisite prejudice to support her ineffective assistance of counsel claim.
In determining whether there is sufficient independent evidence under the corpus delicti
rule, we review the evidence in a light most favorable to the State. State v. Aten, 130 Wn.2d 640,
658, 927 P.2d 210 (1996). The independent evidence does not need to be sufficient to support a
conviction but must provide prima facie corroboration of the crime described in a defendant’s
incriminating statement. Aten, 130 Wn.2d at 656. Additionally, the State may prove the corpus
delicti by either direct or circumstantial evidence. Aten, 130 Wn.2d at 655. Prima facie
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corroboration of a defendant’s incriminating statement exists if the independent evidence
provided by the State supports a “logical and reasonable inference” of the facts the State seeks to
prove. State v. Vangerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995). Further, “‘once the
defendant elects to present evidence and that evidence establishes the corpus delicti, [s]he . . .
cannot prevail on appeal.’” State v. McPhee, 156 Wn. App. 44, 60-61, 230 P.3d 284 (2010)
(alteration in original) (quoting State v. Pietrzak, 110 Wn. App. 670, 680, 41 P.3d 1240 (2002)).
Here, the State presented evidence, independent of Cardenas-Flores’s statements to
police, that CA suffered a displaced femur fracture injury while under Cardenas-Flores’s care.8
Because CA was less than a month old at the time he suffered the femur fracture, a fact finder
could reasonably infer that CA was nonambulatory at the time of his injury and, thus, could
further infer that CA did not cause his own injury. The State also presented testimony from Lang
that established CA’s femur fracture would require “a great amount of force” that is more than
what would occur “in normal everyday life.” RP at 80. Lang’s testimony further established that
CA’s displaced femur fracture was likely caused by a combination of compression plus torsion
or a twist. Taken together and in a light most favorable to the State, this evidence supports a
logical and reasonable inference that CA suffered an assault by Cardenas-Flores resulting in
substantial bodily harm. Therefore, we hold that the State established a prima facie showing that
the crime of second degree assault of a child had occurred, satisfying the corpus delicti rule.
RCW 9A.36.130(1)(a); RCW 9A.36.021(1)(a).
8
Cardenas-Flores’s and Austin’s testimony established that Cardenas-Flores had total control
over CA during the entire charging period, including December 23, the date that Cardenas-Flores
testified she had heard a cracking in CA’s leg. Under McPhee, we may consider this testimony
in determining whether sufficient independent evidence established the corpus delicti. 156 Wn.
App. at 60-61.
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Citing to Dow, 168 Wn.2d at 254, Cardenas-Flores asserts that the State was required to
present independent evidence of every element of second degree assault of a child to satisfy the
corpus delicti rule, including independent evidence that she acted with intent when assaulting
CA. We disagree.
It has long been established that the corpus delicti rule does not require the State to
present independent evidence of the mens rea element of a crime where the mens rea element
merely establishes the degree of the crime. See, e.g., State v. C.M.C., 110 Wn. App. 285, 287, 40
P.3d 690 (2002) (“The corpus delicti of taking a motor vehicle without permission does not
require evidence independently establishing the mens rea element of knowledge.”); State v.
Mason, 31 Wn. App. 41, 48, 639 P.2d 800 (1982) (The corpus delicti rule does not require
independent evidence of “the mental element of the felony charged . . . when that element . . .
provides merely the degree of the generic crime charged.”). In asserting that this precedent is no
longer good law, Cardenas-Flores appears to rely on language in Dow that states “the State must
still prove every element of the crime charged by evidence independent of the defendant’s
statement.” 168 Wn.2d at 254.
In State v. Hummel, 165 Wn. App. 749, 764-65, 266 P.3d 269 (2012), review denied, 176
Wn.2d 1023 (2013), Division One of this court rejected the argument that the above language in
Dow imposed a burden on the State to prove a defendant’s mental state by independent evidence
to satisfy the corpus delicti rule. The Hummel court concluded that this language from Dow was
“‘wholly incidental’” to our Supreme Court’s decision in that case and, thus, was nonbinding
dicta. 165 Wn. App. at 765 (quoting Burress v. Richens, 3 Wn. App. 63, 66, 472 P.2d 396
(1970)). The court also noted that this language in Dow, if taken at face value, “directly
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No. 46605-8-II
contradicts, without explicitly overruling or distinguishing, decades of Supreme Court and Court
of Appeals decisions holding that proof of identity, while a necessary element to be proved at
trial, need not be proved to establish the corpus delicti of the charged crime.” Hummel, 165 Wn.
App. at 765. Finally, the court noted that neither the defendant in that case nor the Dow court
“cite to any case holding that every element of the charged crime need be proved to establish the
corpus delicti.” Hummel, 165 Wn. App. at 766. We adopt the reasoning in Hummel and reject
Cardenas-Flores’s argument that Dow requires the State to present sufficient independent
evidence of the mens rea elements of second degree assault of a child in order to meet the
requirements of the corpus delicti rule.
Because the State presented evidence independent of Cardenas-Flores’s statements that
was sufficient to make a prima facie showing that the crime of assault of a child had occurred,
any objection to the admission of her statements on corpus delicti grounds would not have
succeeded. Accordingly, Cardenas-Flores cannot demonstrate any prejudice resulting from her
defense counsel’s failure to object to the admission of her statements on corpus delicti grounds,
and thus, her claim of ineffective assistance of counsel on this ground fails.
B. Prosecutorial Misconduct
Next, Cardenas-Flores asserts that her defense counsel was ineffective for failing to
object to the prosecutor’s alleged misconduct during closing argument and for failing to request a
limiting instruction in response to such misconduct. But, as we addressed above, the
prosecutor’s argument at closing did not constitute misconduct. Therefore, Cardenas-Flores
cannot show that an objection by defense counsel would have been sustained or that she would
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No. 46605-8-II
have been entitled to a curative instruction had defense counsel requested one. Accordingly,
Cardenas-Flores’s claim of ineffective assistance of counsel on this ground fails.
VI. LEGAL FINANCIAL OBLIGATIONS
Finally, Cardenas-Flores asserts that the sentencing court erred by imposing LFOs
without first inquiring into her ability to pay the LFOs. Cardenas-Flores’s judgment and
sentence contains a preprinted finding that she “is presently indigent but is anticipated to be able
to pay financial obligations in the future.” CP at 30. Cardenas-Flores did not challenge this
finding at her August 27, 2014 sentencing hearing, which hearing occurred after our decision in
State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d 492 (2013), and before our Supreme Court’s
remand of that decision in State v. Blazina, 182 Wn.2d 827, 834-35, 344 P.3d 680 (2015)
(affirming Court of Appeals’ exercise of discretion to refuse to address LFO issue raised for the
first time on appeal, but exercising its own discretion to reach the issue and remand to trial court
for further proceedings).
Although Cardenas-Flores did not raise the issue of her inability to pay LFOs at
sentencing, we elect to exercise our discretion to address the issue for the first time on appeal in
light of Cardenas-Flores’s indigent status, the amount of imposed LFOs, and statements at
sentencing that she would likely face deportation as a result of her conviction. Under Blazina,
the sentencing court erred by imposing LFOs without first inquiring into Cardenas-Flores’s
current or likely future ability to pay those LFOs. 182 Wn.2d at 838. Accordingly, we remand
for resentencing solely on the LFO issue, at which the sentencing court must make an adequate
inquiry of Cardenas-Flores’s ability to pay discretionary LFOs before imposing such LFOs.
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No. 46605-8-II
VII. APPELLATE COSTS
On March 4, 2016, Cardenas-Flores filed a supplemental brief opposing appellate costs in
light of State v. Sinclair, 192 Wn. App. 380, 367 P.3d 612 (2016), arguing that she does not have
the ability to pay. In light of Cardenas-Flores’s indigent status, and our presumption under RAP
15.2(f) that she remains indigent “throughout the review” unless the trial court finds that her
financial condition has improved, we exercise our discretion to waive appellate costs. RCW
10.73.160(1).
We affirm Cardenas-Flores’s conviction but remand for resentencing consistent with this
opinion.
_______________________________
Worswick, J.
____________________________________
Johanson, J.
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No. 46605-8-II
MAXA, J. (concurring) – I concur in the result of this case. I write separately because I
disagree with the lead opinion’s conclusion that the corpus delicti issue involves only a rule of
evidence that cannot be raised for the first time on appeal. I believe that whether the State has
established the corpus delicti of a crime through evidence independent of a defendant’s
statements involves sufficiency of the evidence necessary to convict that can be raised for the
first time on appeal under RAP 2.5(a)(2).
In order to convict a defendant of a crime, the State has the burden of proving the “corpus
delicti” of that crime – i.e., that some crime actually occurred. State v. Green, 182 Wn. App.
133, 142, 328 P.3d 988, review denied, 181 Wn.2d 1019 (2014). Under the corpus delicti rule,
the “defendant’s incriminating statement alone is not sufficient to establish that a crime took
place.” State v. Brockob, 159 Wn.2d 311, 328, 150 P.3d 59 (2006) (footnote omitted). “[T]he
State must present evidence independent of the incriminating statement that the crime a
defendant described in the statement actually occurred.” Id. (emphasis omitted).
The lead opinion states that the corpus delicti rule is merely a rule of evidence. This
notion is inconsistent with the Supreme Court’s decision in State v. Dow, 168 Wn.2d 243, 227
P.3d 1278 (2010). In Dow, the court emphasized that “the corpus delicti rule is both a rule of
admissibility and a rule of sufficiency.” Id. at 251. The court stated:
The corpus delicti doctrine generally is a principle that tests the sufficiency or
adequacy of evidence, other than a defendant’s confession, to corroborate the
confession. . . . Where no other evidence exists to support the confession, a
conviction cannot be supported solely by a confession.
Id. at 249 (emphasis added). In other words, “the corpus delicti rule prevents a defendant from
being convicted based on his or her confession alone.” Id. at 250-51.
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No. 46605-8-II
The court in Dow addressed RCW 10.58.035, which permits the admission of a
defendant’s statements even where independent proof of corpus delicti is absent when there is
substantial independent evidence that the statement is trustworthy. Id. at 251-254. However, the
court expressly distinguished between the admissibility of a defendant’s statement and the
sufficiency of evidence to convict a defendant of a crime. Id. at 253-54.
Considering RCW 10.58.035’s plain language, we hold that any departure from the
traditional corpus delicti rule under RCW 10.58.035 pertains only to admissibility
and not to the sufficiency of evidence required to support a conviction. The corpus
delicti doctrine still exists to review other evidence for sufficiency, i.e.,
corroboration of a confession.
Id.
The court concluded that whether Dow’s statement was trustworthy under RCW
10.58.035(2) was immaterial to whether there was sufficient evidence independent of the
defendant’s confession to convict Dow of the charged crime. Id. at 254
[E]ven if the statements are admissible, no other evidence exists to establish the
corpus delicti independent of Dow’s statement. Further, our corpus delicti cases
have always required sufficient evidence independent of a defendant’s confession
to support a conviction. RCW 10.58.035 does nothing to change this requirement.
Id. (emphasis added).
Division Three of this court also has concluded that the corpus delicti rule is a rule of
sufficiency of evidence as well as a rule of admissibility of evidence. State v. Grogan, 158 Wn.
App. 272, 275-76, 246 P.3d 196 (2010).
The corpus delicti rule does not merely set a standard for the admission of
statements into evidence; it establishes that an uncorroborated confession is
insufficient evidence to sustain a conviction as a matter of law unless independent
proof shows that a crime occurred.
Id. at 275 (emphasis added).
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No. 46605-8-II
The corpus delicti rule provides that a defendant’s statements, standing alone, are
insufficient to support a conviction unless there is corroborating evidence independent of the
statement that a crime actually occurred. Brockob, 159 Wn.2d at 328. Because the corpus delicti
rule involves sufficiency of evidence to convict, I would hold that the corpus delicti issue can be
raised for the first time on appeal under RAP 2.5(a)(2).
The lead opinion suggests that requiring a defendant to raise the corpus delicti issue at
trial in order to preserve the issue for appeal is appropriate because otherwise the defendant
could remain silent and not inform the State that it had not produced sufficient evidence of
corpus delicti. However, in other contexts a defendant certainly has no obligation to inform the
State that it has not produced sufficient evidence to sustain a conviction. There is no reason to
impose such a requirement when the insufficiency of evidence involves corpus delicti.
Here, I agree with the lead opinion – as discussed in its analysis of Cardenas-Flores’s
ineffective assistance of counsel claim – that there is sufficient corroborating evidence
independent of Cardenas-Flores’s statements to establish the corpus delicti of the crime. This
means that even if the lead opinion did address the corpus delicti issue on its merits, it would
have rejected Cardenas-Flores’s arguments. Therefore, I concur in the result even though I
disagree with the lead opinion’s approach.
________________________________
MAXA, A.C.J.
26