Opinion
No. 24166-1-III.
October 10, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-1-01467-1, Salvatore F. Cozza, J., entered April 29, 2005.
Counsel for Appellant(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA, 99260-2043.
Counsel for Respondent(s), Maurina A Ladich, Attorney at Law, 1110 W 2nd Ave, Pmb 80, Spokane, WA, 99201.
Affirmed by unpublished opinion per Schultheis, J., concurred in by Sweeney, C.J., and Kato, J.
A jury convicted Christine Weber of controlled substance homicide. Her estranged husband was found dead 34 hours after she delivered drugs to him, but the State did not present evidence of the time or date of death. The trial court arrested the judgment. The State appeals. We conclude that there was insufficient evidence that the drugs Ms. Weber delivered were a proximate cause of Mr. Weber's death and affirm.
FACTS
On February 8, 2004, James Weber and Michael Stancil were using cocaine at Mr. Weber's home. After they used their supply, they called Christine Weber, Mr. Weber's estranged wife, and asked her to buy additional drugs for them. They chipped in $80, which Ms. Weber used to buy $40 worth of cocaine and $45 worth of heroin from her dealer. Ms. Weber returned to Mr. Weber's house with the drugs, where Mr. Weber injected them both with heroin, giving Ms. Weber the larger dose. Mr. Stancil used most of the cocaine. Ms. Weber went home around midnight. Mr. Weber called her a short time later and they discussed reconciling, going into treatment, and trying to get their kids back from Child Protective Services.
Two days later, on February 10, 2004, at 10:30 a.m. Mr. Stancil found Mr. Weber dead of an apparent drug overdose. Mr. Weber was fully dressed and spread out perpendicular across his bed with his feet on the floor, his arms back, and a telephone in his hand. A syringe was found near his feet.
Mr. Stancil died on June 23, 2004, before the trial of this matter.
During the investigation, police learned that Mr. Weber had attempted suicide by drug overdose on December 20, 2003. Several weeks later, when he was attending counseling due to his suicide attempt, his counselor confronted him about his drug abuse. Mr. Weber had a large amount of crack cocaine in his pocket and he was afraid his counselor would contact police, so he swallowed it. He was hospitalized for a drug overdose and was discharged on February 6, just four days before he was found dead. He was also wearing a cast at the time of his death for a fractured ankle because he "[fell] off the roof" when he was despondent. Report of Proceedings (RP) at 110. Ms. Weber admitted that she provided drugs to Mr. Weber on February 8 and that was the last time she saw him alive.
Ms. Weber was charged with controlled substance homicide. The State alleged that she delivered the heroin and cocaine that killed Mr. Weber.
At trial, Dr. Sally Spring Aiken, the pathologist who performed the autopsy, testified that because there was no significant natural disease present the cause of death hinged on the toxicology results. She stated that Mr. Weber had significant concentrations of cocaine and heroin in his blood at the time of his death. She testified that the level of morphine? often a marker for heroin due to the way it metabolizes in the body? was consistent with a number of heroin deaths she had seen. She also found that Mr. Weber developed purulent bronchitis?an inflammation of the airways? which indicated that he was unable to clear his airway because he was "unconscious for a period of time before he die[d]." RP at 71.
Dr. Robert Julien testified on behalf of the defense. Dr. Julien is an anesthesiologist and associate professor of both anesthesiology and pharmacology at the Oregon Health Sciences University in Portland. He is also the author of three textbooks, one of which is on pharmacology. Dr. Julien interpreted Mr. Weber's test results to show a toxic amount of the antidepressant venlafaxine, an elevated level of the narcotic pain medication tramadol, a therapeutic level of the sedative/antidepressant trazadone, a therapeutic nonlethal amount of morphine, and an extremely low dose of cocaine. Dr. Julien agreed that there was no natural disease indicated in the autopsy report.
The jury found Ms. Weber guilty. Ms. Weber successfully moved to arrest the judgment and prepared findings of fact, conclusions of law, and an order. The State appeals.
DISCUSSION
CrR 7.4(a)(3) authorizes the trial court to arrest judgment for insufficiency of the proof of a material element of the crime. On review of a motion to arrest judgment under CrR 7.4(a)(3), the appellate court determines "'whether the evidence is legally sufficient to support the jury's finding.'" State v. Bourne, 90 Wn. App. 963, 967, 954 P.2d 366 (1998) (internal quotation marks omitted) (quoting State v. Robbins, 68 Wn. App. 873, 875, 846 P.2d 585 (1993)). "The evidence is sufficient if any rational trier of fact viewing it most favorably to the State could have found the essential elements of the charged crime beyond a reasonable doubt." Id. at 968. 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). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
On review of the trial court's decision granting a motion to arrest the judgment, the appellate court engages in the same inquiry as the trial court. State v. Longshore, 141 Wn.2d 414, 420, 5 P.3d 1256 (2000). Findings of fact and conclusions of law are not necessary. See Concerned Coupeville Citizens v. Town of Coupeville, 62 Wn. App. 408, 413, 814 P.2d 243 (1991) (citing Donald v. City of Vancouver, 43 Wn. App. 880, 883, 719 P.2d 966 (1986)). A litigant need not assign error to superfluous findings. Id. We therefore decline to address the parties' arguments concerning the facts found by the trial court and Ms. Weber's argument that the State's failure to assign error to specific findings of fact renders them verities on appeal.
Ms. Weber was convicted of controlled substance homicide. Thus, the jury had to find that the State proved beyond a reasonable doubt that: (1) Ms. Weber knowingly delivered a controlled substance to Mr. Weber, (2) Mr. Weber used the controlled substance she gave him, and (3) such use was the proximate cause of his death. Former RCW 69.50.415(a) (1996). Ms. Weber contends that the State failed to prove beyond a reasonable doubt that her actions were the proximate cause of Mr. Weber's death. Proximate cause is generally a question of fact. State v. Dennison, 115 Wn.2d 609, 624, 801 P.2d 193 (1990); Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). However, if reasonable minds could not differ, whether proximate cause exists may be found as a matter of law. Dennison, 115 Wn.2d at 624; Hertog, 138 Wn.2d at 275.
The jury was instructed: "The term 'proximate cause' means a cause which, in a direct sequence, unbroken by any new independent cause, produces the death, and without which the death would not have happened. There may be more than one proximate cause of death." Clerk's Papers at 17. Proximate cause need not be shown exclusively through direct evidence. Conrad v. Alderwood Manor, 119 Wn. App. 275, 281, 78 P.3d 177 (2003); see State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980) (when determining evidence sufficiency, circumstantial evidence and direct evidence are equally reliable). But evidence to establish proximate cause must rise above speculation, conjecture, or mere possibility. Conrad, 119 Wn. App. at 282.
Here, the evidence shows that 34 hours after Ms. Weber delivered cocaine and heroin to Mr. Weber, he was found dead. The State presented no evidence to indicate how long he was dead. Because of the absence of evidence to explain what occurred within the 34-hour period between Ms. Weber's delivery of the drugs and the discovery of Mr. Weber's body, the evidence is insufficient to show that the drugs Ms. Weber delivered were a proximate cause of Mr. Weber's death.
The State invites us to view the video of Ms. Weber's confession that was played for the jury. The State did not include the tape or a transcript with the record. See RAP 9.2(b). Also, tape recordings do not satisfy the appellate rules as to the acceptable form of a transcript. State v. Alfonso, 41 Wn. App. 121, 123-24, 702 P.2d 1218 (1985). The State, as the appellant, bears the burden of providing a record adequate for review. State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999). Counsel briefed the case in October 2005 without citation to a confession transcript and knew since that time that we would not have the benefit of either the tape or a transcript. We therefore decline to supplement the record and presume that the video confession is not critical to the record.
The State argues that the autopsy report supports the jury's verdict. But both experts agreed that the autopsy did not reveal a cause of death. Rather, the toxicology results would be dispositive. And those results are subject to interpretation. While the jury should generally decide this issue, without an estimated time and date of death, it had no basis for its conclusion in this case.
Taking the evidence in the light most favorable to the State, a rational trier of fact could not find beyond a reasonable doubt that the drugs Ms. Weber delivered on February 8, 2004, caused the death of a depressed, suicidal, drug addict prone to calling others to obtain drugs for him, when his activities were unknown from the time of the drug delivery until his body was found 34 hours later, on February 10, 2004.
CONCLUSION
The evidence is insufficient to support an inference that Ms. Weber's actions were a proximate cause of Mr. Weber's death when the jury had to speculate as to the time and date of Mr. Weber's death. Accordingly, we affirm the superior court.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KATO and SWEENEY, JJ., concur.