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.'s sister, CM., was admissible as a common scheme or plan.

¶3 At trial, S.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.S. was asleep in her bed. She woke up to Mr. Lopez Angulo touching her both inside and outside of her pajamas. S.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.S. had told him. She did not describe any penetration during her pretrial interviews. Detective Wagner testified that Mr. Lopez Angulo admitted touching S.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.'s vagina once or twice, approximately one-quarter inch.

¶6 Prior to C.M.'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.M. is S.S.'s older sister and had lived with Ms. Hinojosa and Mr. Lopez Angulo. C.M. 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.S. at home alone while she was at work. A week or two later, S.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.M. had made against Mr. Lopez Angulo in 2002, but she did not believe C.M.

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

¶9 Mr. Lopez Angulo denied the allegations made by S.S. and C.M. 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 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 Wn.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, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (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.

¶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. 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.

¶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. 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.

¶16 The contours of the evidentiary corpus delicti confession rule were clarified in State v. Meyer, 37 Wn.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. 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. The identity of the criminal actor, although a fact that had to be proved 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 Wn.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. 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 car. Id. at 368.

¶18 The husband's statements were admitted against him at trial. Other evidence corroborated portions of the statements. An expert testified that the hole in the victim's coat was made by the defendant's rifle. Id. Blood found in his house confirmed the location where the victim was standing when she was shot. Her watch and ring were on the windowsill where the defendant said she had placed them before the shooting. Id. at 368-369. An officer on patrol testified to seeing the defendant's truck on the road to the location on the river where he said he dumped the body. Id. at 369.

¶19 A significant issue on appeal was whether the trial court erred in admitting the defendant's statement since, without the body, there was no way of proving the fact of death. Id. at 371. The court identified two elements as constituting the corpus delicti in a homicide case: "(1) the fact of death and (2) a causal connection between the death and a criminal agency, but the corpus delicti does not require proof of a causal relation between the death and the accused." Id. The court concluded that circumstantial evidence that the victim was dead was sufficient to establish the "fact of death" component of the homicide corpus delicti. It noted that to do otherwise would be to reward defendants who successfully concealed a murder victim's body, and would also leave unpunished "an infinite number of crimes involving the elements of a specific intent." Id.

¶20 The court concluded that the circumstantial evidence was consistent with a criminal act having taken place and inconsistent with a hypothesis of innocence. Id. at 372. The evidence pointed at the defendant and corroborated his statements. "The corpus delicti was completely established." Id. at 373.

¶21 Another significant case dealing with the corpus delicti confession rule is State v. Aten, 130 Wn.2d 640, 927 P.2d 210 (1996). There the defendant had been convicted of second degree manslaughter after an infant left in her care suddenly died. The cause of death was attributed to Sudden Infant Death Syndrome (SIDS), a form of acute respiratory failure. Id. at 644, 646, 659. Neither natural death nor manual strangulation could be ruled out as a cause of death. Id. at 646. The defendant had made various admissions, which were presented to the jury, that she had suffocated the victim. Id. at 649, 652-654.

¶22 A divided Court of Appeals panel had reversed the conviction, ruling that the statements should not have been admitted under the corpus delicti rule. Id. at 655. The Washington Supreme Court affirmed, agreeing that the rule had not been satisfied. In particular, the court ruled that the evidence did not show the death was caused by a criminal act. Id. at 658. In its analysis, the court repeatedly pointed out that the cause of death, SIDS, did not point to a criminal act. Id. at 659, 661-662. Merely because a criminal act could not be ruled out under the SIDS diagnosis did not mean that a criminal agency had been proved. The fact that the evidence equally permitted finding both a criminal and a noncriminal cause of death meant that the criminal agency requirement was not proved. Id. at 659-660. Citing to Lung, the court stated that circumstantial evidence supporting a corpus delicti finding must be consistent with guilt and not with innocence. Id. at 660-661.

¶23 The court recently returned to the scope of the evidentiary corpus delicti rule again in State v. Brockob, 159 Wn.2d 311, 150 P.3d 59 (2006). Brockob involved three consolidated cases, including one conviction for possession of ephedrine with intent to manufacture, one conviction for attempted manufacture of methamphetamine, and a conviction for attempted second degree robbery. Id. at 319-320, 323, 326. One of the drug case defendants had possessed 30 bottles of pseudoephedrine; the other possessed only 3 bottles of ephedrine, but also had coffee filters often used in the manufacturing process. Both defendants had confessed that they possessed the drug with the intent that methamphetamine be manufactured. Id. at 318-319, 321.

¶24 The court reversed the conviction in the case of the defendant with the 30 bottles, but upheld the conviction of the man having 3 bottles plus the coffee filters. Id. at 333. In its analysis, the majority read Aten as increasing the burden imposed by the evidentiary corpus delicti rule. Citing to the Aten lead opinion's discussion of the Lung multiple-hypothesis standard for circumstantial evidence, the Brockob majority stated that evidence is insufficient to admit an incriminating statement if the evidence is consistent with both guilt and innocence. Id. at 330. The court stressed that the corroboration evidence must establish the charged crime rather than just any crime. Id. at 329.

¶25 With respect to the first case, the mere possession of the pseudoephedrine without more did not support an inference of intent to manufacture. Absent some evidence of manufacture, the corpus delicti of the charged offense could not be established and the defendant's statement concerning his intent should not have been admitted. The evidence showed only that the defendant stole pseudoephedrine — not what he was going to do with it. Id. at 331-332. In the other drug case, the evidence of coffee filters, used in the manufacturing process, was sufficient additional corroboration to show the intent behind the possession of the ephedrine. Accordingly, the evidence was sufficient to admit the defendant's incriminating statements. Id. at 333.

¶26 This case history establishes several points with respect to the Washington evidentiary corpus delicti rule. The rule requires proof of both a criminal act and a criminal agency or cause for the act. Meyer, 37 Wn.2d at 763. It is the State's burden to establish these requirements on a prima facie basis. Id. at 763-764. However, prima facie in this context appears to mean that the evidence must preponderate in favor of the existence of a criminal act or agency. If the evidence could equally point to both a criminal or noncriminal cause, then the State has not met its burden of establishing the corpus delicti. Aten, 130 Wn.2d at 660; Brockob, 159 Wn.2d at 329. Evidence corroborating an incriminating statement must relate to the crime charged; evidence of some other tangentially-related crime is not sufficient. Brockob, 159 Wn.2d at 329. The corroboration does not require proof of all elements of the charged offense. Lung, 70 Wn.2d at 371; Meyer, 37 Wn.2d at 763.

¶27 Purpose. The evidentiary corpus delicti rule arose out of judicial distrust of confessions and incriminating statements. Aten, 130 Wn.2d at 656-657. Courts feared that confessions would be uncritically accepted by juries, even if there was evidence that the admissions were involuntary, coerced, or untruthful. Id.; City of Bremerton v. Corbett, 106 Wn.2d 569, 576, 723 P.2d 1135 (1986).

The requirement of independent proof of the corpus delicti before a confession is admissible was influenced somewhat by those widely reported cases in which the "victim" returned alive after his supposed murderer had been tried and convicted, and in some instances executed. See, e.g., Perrys' Case, 14 Howell's State Trials 1311 (1660); Trial of Stephen and Jesse Boorn, 6 American State Trials 73 (1819). See generally State v. Howard, 102 Or. 431, 203 P. 311 (1921); Note, [ Proof of the Corpus Delicti Aliunde the Defendant's Confession,] 103 U. Pa. L. Rev. [638,] 646-47 [(1955)].

Corbett, 106 Wn.2d at 576.

¶28 Concern over the trustworthiness of the defendant's admissions appears to have been a factor in Aten, although it is not a stated reason for the result. The court noted that the incriminating statements were made after the defendant had entered into mental health treatment and was taking medications for her condition. 130 Wn.2d at 645-650, 653-654. The court's analysis also indicated that one reason a suspect's statements could not be considered in establishing the corpus delicti was concern that one false statement would corroborate another untruthful statement. Id. at 657-658.

¶29 Thus, the purpose of the corpus delicti rule is to safeguard against jury consideration of incriminating statements that are false.

¶30 Application. With these considerations of history and purpose in mind, we now turn to the application of the rule to this case. There are at least three cases with similar factual patterns as this case.

¶31 State v. Mathis, 73 Wn. App. 341, 869 P.2d 106, review denied, 124 Wn.2d 1018 (1994), involved a third degree child rape prosecution based on the defendant's admitted digital penetration of the victim. Id. at 342. The victim denied that any penetration had occurred, but did indicate that the defendant had placed his hand in her underpants and allowed her to sleep overnight at the house. The defendant testified that he had made the statements attributed to him by the police. The court concluded this was sufficient corroboration to permit consideration of the defendant's statement to the police. Id. at 346-347.

¶32 State v. Biles, 73 Wn. App. 281, 871 P.2d 159, review denied, 124 Wn.2d 1011 (1994), was a first degree child rape prosecution involving an admission by the defendant that he had "barely" penetrated his daughter when she was three or four years old. Id. at 282-283. She said that her father's private part was "hard" and had touched her private parts, but answered "no" when asked if the defendant's private parts had entered her private parts. Id. After the incident, his private part was "wet." Id. at 282. The child also indicated that the incident "`hurt.'" Id. at 285. This court concluded that the daughter's evidence was sufficient to corroborate the admission. Id.

¶33 State v. C.D.W., 76 Wn. App. 761, 887 P.2d 911 (1995), involved a juvenile court prosecution for one count of first degree child rape. The victim, age nine, testified to several incidents of sexual contact but did not describe an act of rape. The defendant admitted acts of intercourse to a detective. Id. at 762. There was no objection raised at trial to the detective's testimony. On appeal, the defendant claimed that the corpus delicti rule was violated and that defense counsel had been ineffective in not seeking to exclude the confession. Id. The prosecution conceded that there was insufficient evidence of sexual intercourse to satisfy the corpus delicti rule. Id. The court concluded that as a rule of evidence, a corpus delicti challenge could not be raised initially on appeal. Id. at 763-764. The court also concluded, in light of the concession, that trial counsel had been ineffective in not presenting a corpus delicti challenge. Id. at 764. The conviction was reversed and the case remanded for a new trial. Id. at 765.

¶34 The current case has elements of all three of the just-noted cases. In all of them the victim did not report any penetration, while the offender admitted penetration. Biles and Mathis, like the current case, involved discrete incidents that were the only charged offenses. As in Biles, the victim here reported an erect penis rubbing against her private parts. As in Mathis, the victim also reported an incident of the defendant's hand inside her pajamas touching her private area without expressly describing penetration. Like C.D.W., there was no objection in the trial court and the challenge is presented here as an ineffective assistance of counsel claim.

¶35 There also were some differences. In Mathis, the defendant's in-court testimony, agreeing that he had made the statement to the police, was considered in corroboration. In Biles, the victim's testimony that the touching "hurt" and that her father's penis was "wet" afterwards were considered corroboration of the penetration element. There is no similar evidence in this case.

¶36 It is a close case whether there is sufficient corroboration of the element of penetration to admit Mr. Lopez Angulo's statement. There is arguably more pertinent corroboration than was found sufficient in Mathis (hand in underwear, in-court admission), but not as much as in Biles. However, we think that these three cases applied a stricter than necessary standard for establishing the corpus delicti. The traditional requirement of a "criminal act" was replaced, unnecessarily in our view, by a requirement that a specific element (penetration) be established. That is not the way the corpus delicti is applied in other types of cases. As noted previously, the requirements in a homicide case are the fact of death and a criminal agency as the cause of death. Lung, 70 Wn.2d at 371; Aten, 130 Wn.2d at 655. There is no requirement that the appropriate mental state (intent, recklessness, negligence), premeditation (in a first degree murder charge), or identity of the killer, all of which would have to be established beyond a reasonable doubt to prove a case, be established in order to admit an incriminating statement. In essence, the gravamen of a homicide case is a dead body and a non-natural cause of death.

¶37 The gravamen of a child rape prosecution is a sexual act with a minor. Where, as here, a young child describes an act of attempted sexual intercourse, we believe that there is sufficient evidence to admit the defendant's statement that he succeeded in achieving penetration, even though his victim did not know that fact. The child described a criminal act. Under traditional principles of the evidentiary corpus delicti rule as stated in Meyer and its numerous progeny, that should be sufficient to admit the statement. The evidentiary corpus delicti rule involves not a question of which crime was committed, but whether one was committed. The rule was not designed as a method of distinguishing one crime from another. Rather, it is a safeguard to ensure that an incriminating statement relates to an actual offense.

¶38 Brockob confirms that the crime involved must be the one charged. We understand that opinion to mean that the corroboration (here, the victim's testimony) and the defendant's incriminating statement must relate to the same charged incident. Evidence of a different, uncharged other crime (e.g., stealing pseudoephedrine) does not corroborate the charged offense (e.g., possession of pseudoephedrine with the intent to manufacture methamphetamine). Here, the child victim and the defendant each described the same two events, which were the bases for the criminal charges. There is no conflict with the requirements of Brockob.

¶39 There also would be no difference in outcome in the three other noted child rape cases under this approach. Clearly the defendant and victim in Biles were describing the same criminal act, and did so in sufficient detail to show that child sexual abuse occurred. Mathis likewise established a concurrence between the victim's testimony showing a criminal act, the defendant's statement, and the charged crime. That concurrence was lacking in C.D.W. There, multiple criminal acts were described by the victim, and different criminal acts were described by the defendant. Only the defendant's testimony described an act of rape consistent with the charged crime. In that circumstance, there was no reason to believe that the victim and defendant were describing the same incident. Accordingly, the corpus delicti was not established and the case was properly remanded for a new trial.

¶40 In addition to being consistent with the traditional application of the corpus delicti rule, the outcome here is consistent with the purpose of the rule. There was no danger of a false confession resulting in a conviction for a crime that had not occurred. Indeed, the victim's testimony showed that either child molestation (improper contact with the sexual organs of a child) or attempted child rape occurred. Permitting the defendant's confession to help establish what specific crime occurred does not involve the danger of wrongly convicting a person for a crime that did not happen.

¶41 Tying the corroboration requirement of the corpus delicti rule too closely to the elements of the charged offense also could easily result in unnecessarily excluding extremely relevant and probative evidence — and doing so without furthering the purpose of the rule. Changing the facts of this case a little will illustrate the problem. In a hypothetical first degree child rape prosecution, nine-year-old victim V provides testimony that is unclear about whether or not the defendant D actually penetrated her. D confessed to the police that he did so, and the jury heard the testimony about the confession. Given the uncertainty of the evidence, the court instructs the jury on the lesser included offense of attempted first degree child rape. If the jury acquitted on the rape count but returned a verdict on the lesser crime of attempted rape, the defendant could challenge post hoc the admission of his confession on the basis that the verdict established there was no evidence of penetration and the confession should have been excluded. Conversely, if V described an act of penetration but D's confession denied doing so and described only an act of molestation, would the corpus delicti rule require exclusion of the confession since it went to an uncharged crime of molestation? The result of such an overly element-based rule is that prosecutors would have to charge the crime defendant confessed to, rather than actually committed, in order to admit the statement.

¶42 We do not think the purpose of the corpus delicti corroboration rule is served by trying to apply it to the elements of the crime rather than focusing on whether a criminal act has been established. The rule was designed to protect against false confessions. It is not a tool to regulate the means of proving related offenses. The testimony of S.S. established that a criminal act of the same basic nature as the charged offense, and involving the same incident, had occurred. The corpus delicti rule requires nothing more.

¶43 In light of this conclusion, the statements were properly admitted and we do not believe counsel erred in failing to raise a corpus delicti challenge. Mr. Lopez Angulo has not established that he received ineffective assistance of counsel. Accordingly, the convictions for first degree child rape are affirmed.

¶44 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions. RCW 2.06.040.

KULIK, J., concurs.