Opinion Information Sheet

			

    IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 64134-4-I
                      Respondent,           )
                                            )       DIVISION ONE
       v.                                   )
                                            )
BRUCE HUMMEL,                               )       PUBLISHED OPINION
                                            ) 
                      Appellant.            )       FILED: January 3, 2012
       spearman, j.  --  A jury convicted Bruce Hummel of the premeditated murder of

his wife Alice.  The main issue in this appeal is whether Hummel's statements were 

properly admitted under the corpus delicti rule.  That rule requires the State to produce 

sufficient evidence to establish the corpus delicti of the charged crime before a 

defendant's statements may be admitted into evidence.  The corpus delicti of a 

homicide case is proved by evidence, independent of a defendant's statements,

establishing the fact of death and a causal connection between the death and a 

criminal act.  We conclude that there was sufficient independent evidence to establish 

the corpus delicti and that Hummel's statements were properly admitted into evidence.  

We reject Hummel's contention that the conviction should be reversed and the charge 

dismissed.   

No. 64134-4-I/2

       Hummel's argument that his public trial rights were violated, however, is well 

taken.  The trial court here questioned a number of jurors in chambers without first 

weighing the factors set forth in State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 

(1995).  The court did not engage in any meaningful review or balancing of the 

defendant's right to an impartial jury versus public trial rights.  As such, we are 

constrained by the Supreme Court's opinion in State v. Strode, 167 Wn.2d 222, 217 

P.3d 310 (2009) to reverse Hummel's convictions and remand for a new trial. We also 

address additional issues that may arise on remand.

       Reversed and remanded for further proceedings.  

                                            FACTS

       At the time Bruce Hummel's wife Alice disappeared in 1990, their youngest 

daughter, Shanalyn, was twelve years old, and Hummel had been molesting her for 

years.  Hummel forced Shanalyn to help him masturbate.  Hummel tried to force 

Shanalyn to perform oral sex.  Hummel would drive to remote areas with Shanalyn to 

molest her. 

       Shanalyn talked with her mother every day. Alice was apparently suspicious 

about possible molestation, because she twice asked Shanalyn if anything 

"inappropriate" had happened with Hummel.  Shanalyn initially did not disclose the 

abuse, but finally told her mother about the molestation a few days before her birthday. 

According to Shanalyn, her mother was "upset" at the news of the molestation. 

Shanalyn believed her mother would take action.  

                                               2 

No. 64134-4-I/3

       Just a couple of days after Shanalyn told Alice about the abuse, however, Alice 

disappeared.  On that day, Shanalyn came home from school and only her father was 

there. Alice had never mentioned to Shanalyn that she was leaving, and Shanalyn did 

not see her pack any bags.  In fact, Alice left behind her personal belongings, including 

some of her medication, purse, wallet, identification, and bank cards. Additionally, 

Alice had made special plans to attend a ballet with Shanalyn for Shanalyn's birthday.  

Before she vanished, Alice never gave any indication she would miss Shanalyn's 

birthday or the ballet performance.  

       After Alice disappeared, Shanalyn helped Hummel pack her mother's purse, 

clothes, makeup, medication, and other personal items, allegedly to send to her 

mother, who Hummel indicated had secured a new job in California.  Hummel never 

sent the items, but instead sold them at a garage sale later that year.  Likewise, 

Shanalyn's brother Sean saw Hummel pack a suitcase and boxes with his mother's 

belongings purportedly to be forwarded.  Sean, however, found these boxes and the 

suitcase hidden in Hummel's basement months later. Hummel told many stories over 

the years about Alice's location.  He initially said Alice had accepted a job in California, 

but he later claimed she had received a promotion and was working in Texas.  

       Shanalyn never saw her mother again.  She never received a telephone call 

from her mother. Shanalyn did receive typewritten letters purportedly from her mother, 

including one letter saying her mother had met a new man who had no interest in 

children. But to Shanalyn, those letters did not read as if they were written by her 

                                               3 

No. 64134-4-I/4

mother.  A forensic scientist who examined the signature on the various pieces of 

correspondence allegedly sent by Alice after her disappearance testified there were 

indications the signatures were made by Hummel, not Alice. Additionally, Hummel 

would throw "temper tantrums" if he caught Shanalyn or Sean attempting to get the mail 

to see if their mother had sent a letter.  After Alice's disappearance, Hummel kept 

molesting Shanalyn.  

       Sean and his mother had a history of leaving notes for each other in a "special 

place"  --  in a false ceiling of their basement. Sean checked the false ceiling after his 

mother disappeared but found nothing.  About a year later, however, Sean discovered 

a "suicide letter" in the space.  The letter was in his father's handwriting.  Sean once 

received a Christmas card purportedly from his mother after her disappearance, but the 

check inside was signed by his dad.  

       Sean attempted to find his mother sometime in the early 1990s after purchasing 

software called 1-800 U.S. Search.  None of the "hits" returned by the software were for 

Alice. Shanalyn also attempted to find her mother using online software, but was 

unsuccessful. Hummel and Alice's oldest child, Sharinda, attempted to find Alice after 

Alice's father died in 1993, but the effort was unsuccessful. Years later Sharinda 

learned that Hummel had been molesting Shanalyn. Sharinda eventually filed a missing 

person report for Alice.

       In 2004, Bellingham police and the FBI met with Hummel, who had moved to

Billings, Montana. The FBI was involved because after Alice disappeared, Hummel 

                                               4 

No. 64134-4-I/5

immediately began stealing her disability payments.  Hummel told law enforcement 

officers he last saw Alice in October 1990 when he drove her to Sea-Tac so she could 

fly to California for a job interview.  Hummel initially denied taking her disability 

payments, but later admitted taking the money. He also admitted molesting Shanalyn 

starting when she was three years old.  

       Hummel pled guilty to twelve counts of federal wire fraud for the theft of the 

disability payments. In his guilty plea, Hummel admitted Alice died on October 18, 1990 

and that after she was dead, he falsely represented himself to be Alice for the purpose 

of collecting her disability payments. Hummel later sent a letter to one of the 

Bellingham Police Department detectives, apologizing for not telling the truth.  In the 

letter, Hummel again admitted Alice was dead, but he claimed she had committed 

suicide.  The letter was an exceedingly lengthy description of how Hummel purportedly 

discovered Alice, who he claimed had slit her wrists; how he panicked; how she left a 

note saying "don't let the kids know," and a detailed account of how he disposed of her 

body the following night by rowing out into Bellingham Bay and dumping her there.  In 

the letter, Hummel claimed it was a stormy night.  (The letter was admitted as an exhibit 

at trial and read by an officer on the stand).

       The police tested Hummel's former residence for blood and found no traces.  

They dredged Bellingham Bay, but found nothing.  Moreover, on the night Hummel 

claimed to have disposed of the body, Bellingham Bay was calm with no wind, unlike 

Hummel's description in the letter.  The police arrested Hummel.  While he was in 

                                               5 

No. 64134-4-I/6

Whatcom County Jail, he told his cellmate Donald Cargill, that he had helped his wife 

Alice "get to a better place" by mixing a handful of ground up pills in apple cider and 

giving it to Alice to drink.  

       The State charged Hummel with first degree murder.  Hummel moved to bar the 

admission of his statements and to dismiss the charge, arguing there was insufficient 

evidence of the corpus delicti of the crime.  The trial court denied both motions.  The 

jury convicted Hummel as charged.  At sentencing, the trial court included Hummel's 

federal wire fraud convictions in his offender score.  Hummel appeals.

                                        DISCUSSION

       I.  Corpus delicti

       The first issue we must decide is whether the corpus delicti of the crime of 

homicide was sufficiently established to allow the proper admission of Hummel's 

statements.  It has long been the rule in Washington that such statements cannot be 

considered by the finder of fact unless the State first establishes the corpus delicti of 

the crime by independent evidence.  State v. Lung, 70 Wn.2d 365, 423 P.2d 72 (1967),

State v. Meyer, 37 Wn.2d 759, 226 P.2d 204 (1951), State v. Bestolas, 155 Wash. 212, 

215-16, 283 P. 687 (1930).  It is also well settled that only two elements are necessary 

to establish the corpus delicti in a homicide case: the fact of death and a causal 

connection between the death and a criminal act.1 State v. Aten, 130 Wn.2d 640, 927 

       1 Although we conclude that the independent evidence is sufficient to establish the fact of Alice's 
death, we note that there is abundant authority that the corpus delicti rule does not apply to statements 
made in open court.  Bremerton v. Corbett, 106 Wn.2d 569, 575-76, 723 P.2d 1135 (1986) ("The rule 
requiring independent corroboration of extrajudicial confessions and admissions is one of the oldest 

                                               6 

No. 64134-4-I/7

P.2d 210 (1996); Lung, 70 Wn.2d at 371; State v. Little, 57 Wn.2d 516, 521, 358 P.2d 

120 (1961); State v. Richardson, 197 Wash. 157, 163, 84 P.2d 699 (1938); State v. 

Gates, 28 Wash. 689, 69 P. 385 (1902); State v. Rooks, 130 Wn. App. 787, 125 P.3d 

192 (2005); State v. Sellers, 39 Wn. App. 799, 695 P.2d 1014 (1985).  The 

independent evidence may be either direct or circumstantial and need not be of such 

character as would establish the corpus delicti beyond a reasonable doubt or even by a 

preponderance of the evidence.  Aten, 130 Wn.2d at 656.  It is sufficient if it prima facie

establishes the corpus delicti.  Id.  "Prima facie" in the 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)).  There is no 

requirement that the evidence establish the identity of the perpetrator.  Lung, 70 Wn.2d 

at 371.  In analyzing whether there is sufficient evidence to support the corpus delicti of 

the crime, this court "assumes the truth of the State's evidence and all reasonable 

inferences from it in a light most favorable to the State."  Aten, 130 Wn.2d at 658.  The 

confession doctrines."); State v. Marcy, 189 Wash. 620, 623, 66 P.2d 846 (1937) ("It is a rule that a 
conviction cannot rest upon a confession made out of court unless there is independent evidence to 
establish the crime has actually been committed by someone."); State v. Bestolas, 155 Wash. 212, 215, 
283 P. 687 (1930) ("[I]t is the better rule that extrajudicial confessions or admissions . . . are, in the 
absence of corroborating testimony . . .insufficient to prove the corpus delicti."); State v. Thompson, 73 
Wn. App. 654, 658, 870 P.2d 1022 (1994) ("A defendant's extrajudicial confession is not admissible at 
trial unless independent proof establishes the corpus delicti of a crime."); State v. Neslund, 50 Wn. App. 
531, 542, 749 P.2d 725 (1988) ("Under the corpus delicti rule, an extrajudicial confession or admission 
may not be considered by the trier of fact unless independent proof prima facie establishes the corpus 
delicti of the crime.").  (Emphases added)  Thus, Hummel's admissions in his statement of plea of guilty 
in federal court that Alice was deceased, is more than sufficient to satisfy the "fact of death" element of 
the corpus delicti.

                                               7 

No. 64134-4-I/8

causal connection between the death and the defendant's acts cannot be based on 

mere conjecture and speculation.  Aten, 130 Wn.2d at 661 (citing Little, 57 Wn.2d at

521).    

       Here, the evidence independent of Hummel's statements can be summarized as 

follows:

           ?  At the time Hummel's wife Alice disappeared, their youngest 
              daughter, Shanalyn, was twelve years old, and Hummel had been 
              molesting her for years.  
           ?  Hummel and Alice would bicker "constantly".  

           ?  Shanalyn talked with her mother every day.  Her mother twice asked 
              if anything "inappropriate" had happened with Hummel.  

           ?  Shanalyn told her mother about the molestation a few days before 
              her birthday.  

           ?  Alice was "upset" at the news of the molestation.  Shanalyn believed 
              her mother would take action.  

           ?  Just a couple of days after Shanalyn told her mother about the 
              abuse, her mother disappeared.  

           ?  Shanalyn came home from school and only her father was there 
              when she arrived home.  

           ?  Alice never mentioned leaving to Shanalyn, and Shanalyn did not 
              see her pack any bags.  

           ?  Alice left behind her personal belongings, including medication, 
              purse, wallet, identification, and bank cards.  .

           ?  At the time she disappeared, Alice was working on a computer 
              project for Wayne Terry.  She never completed it nor spoke to Terry 
              about abandoning the work.  This was contrary to her previous work 
              for Terry, which had always been completed on a timely basis.  

           ?  Alice had made special plans to attend a ballet with Shanalyn for 
              Shanalyn's birthday, and never gave any indication she could not 
              make it.  

           ?  Shanalyn helped Hummel pack her mother's purse, clothes, makeup, 
              medication, and other personal items, allegedly to send to her 

                                               8 

No. 64134-4-I/9

              mother, who had secured a new job in California.  Hummel never 
              sent the items, however, but instead sold them at a garage sale later 
              that year.  

           ?  Shanalyn never saw her mother again.  She never received a 
              telephone call from her mother.  

           ?  Shanalyn did receive typewritten letters purportedly from her mother, 
              including one letter saying her mother had met a new man who had 
              no interest in children.  But those letters did not read as if they were 
              written by her mother.  

           ?  A forensic scientist who examined the signature on the various 
              pieces of correspondence allegedly sent by Alice after her 
              disappearance testified there were indications the signatures were 
              made by Hummel, not Alice.  
           ?  Hummel would throw "temper tantrums" if he caught Shanalyn and 
              her brother attempting to get the mail to see if their mother had sent 
              a letter.  

           ?  Sean Hummel and his mother had a history of leaving notes for each 
              other in a "special place"  --  in a false ceiling of their basement.  Sean 
              checked the false ceiling after his mother disappeared but found 
              nothing.  About a year later, however, Sean discovered a "suicide 
              letter" in the space.  The letter was in his father's handwriting.  

           ?  Sean Hummel once received a Christmas card purportedly from his 
              mother after her disappearance, but the check inside was signed by 
              his dad. 

           ?  After Alice's disappearance, Hummel kept molesting Shanalyn.  

           ?  After Alice disappeared, Hummel immediately began stealing her 
              disability payments.  Exhibit 6 (U.S. District Court of Alaska plea 
              agreement).  Hummel pled guilty to twelve counts of federal wire 
              fraud for the theft of the disability payments.  

       Relying on Aten, State v. Dow, 168 Wn.2d 243, 227 P.3d 1278 (2010) and State 

v. Brockob, 159 Wn.2d 311, 150 P.3d 59 (2006), Hummel argues that this evidence is 

insufficient to establish the corpus delicti for first degree murder.   Hummel contends 

that these cases stand for the proposition that if the independent evidence supports 

hypotheses of both guilt and innocence, it is insufficient to satisfy the corpus delicti

                                               9 

No. 64134-4-I/10

rule.  And further that the independent evidence must prove every element of the crime 

charged including, the requisite mental state.  Hummel contends that here, since 

Alice's body was never found, the independent evidence does not eliminate the 

possibility that she simply left or died of natural causes.2  He further argues that, even 

assuming that Alice is deceased, the independent evidence does not establish every 

element of the charged crime, specifically, that her death was caused by a person with 

the requisite mental state for first degree murder, premeditated intent.  Hummel 

misconstrues these cases and ignores the decades of case law explaining the 

application of the corpus delicti rule in homicide cases in the State of Washington.  We 

reject his arguments and affirm the trial court's ruling that the corpus delicti was 

sufficiently established by the independent evidence and that Hummel's statements 

were admissible.

       In Aten, the case upon which Hummel principally relies, the defendant confessed 

to killing an infant by manually suffocating the baby and was charged with second 

degree manslaughter, i.e. causing the death with criminal negligence.  The fact of 

death was not in dispute.  The issue was whether the evidence was sufficient to 

establish a causal connection between the death and a criminal act.  The Court posed 

the question as whether the independent evidence supported "a reasonable and logical 

inference that Respondent acted in a manner which showed lack of awareness of a 

       2 Hummel cites to testimony by their son, Sean Hummel, that he was aware that Alice had talked 
to people about a job in California, had health problems and took a number of medications.

                                              10 

No. 64134-4-I/11

substantial risk that a wrongful act might occur and that lack of awareness constituted a 

gross deviation from reasonable care which resulted in the death of the infant . . . ." Id. 

at 658.  

       The Court noted the medical examiner's testimony that the infant died of acute 

respiratory failure and that he could not determine whether the respiratory failure was 

caused by Sudden Infant Death Syndrome (SIDS) or suffocation.  The medical 

examiner also testified that he concluded the infant died from SIDS and described the 

similarity in the infant's death to a typical SIDS case.  "Based upon the autopsy findings 

alone, [the medical examiner] could not reasonably and logically infer [the infant] died 

as a result of a criminal act."  Id. at 659. The Court concluded that "[t]he totality of 

independent evidence in this case does not lead to the conclusion there is a 

'reasonable and logical' inference that the infant . . . died as a result of criminal 

negligence and that that inference is not the result of 'mere conjecture and 

speculation.'" Aten, 130 Wn.2d at 661.  

       Hummel claims that because the Aten court identified the specific intent 

necessary to prove criminal negligence, it thereby modified the corpus delicti rule to 

include proof of each element of the crime, including the requisite mental state.  But

nowhere in Aten is it suggested that proof of each element of the crime was necessary 

to establish the corpus delicti.  Although the mental state required to prove second 

degree manslaughter was raised, there was no discussion in Aten of how the 

independent evidence did or did not satisfy that particular mental state.  Instead, the 

                                              11 

No. 64134-4-I/12

Court addressed only whether the evidence supported a reasonable and logical 

inference that the infant died as a result of a criminal act.  Moreover, Hummel cites no 

other case, nor could we find any, holding that evidence of the mental state applicable 

to a specific degree of the alleged crime is necessary to establish that the death was 

the result of a criminal act.3  

       Hummel contends that State v. Dow provides support for this claim but his 

reliance on that case is misplaced.  In Dow, the Supreme Court discussed the judicially-

created corpus delicti rule, but the case actually turned on the applicability of RCW 

10.58.035.  Mr. Dow was charged with first degree child molestation.  Dow, 168 Wn.2d 

at 247.  The victim was a three-year-old child, and the State acknowledged she was too 

young to testify.  Id.  Dow and the child were the only people present at the time of the 

alleged offense, and the State conceded there was no evidence independent of Dow's 

statements to the police that the crime occurred.  Id.  The State nevertheless argued 

that Dow's statements were trustworthy and should be admitted under RCW 10.58.035.  

Id. at 254.  That statute allowed a defendant's statements into evidence even where 

independent evidence of the crime was absent, so long as certain statutory indications

of trustworthiness of the statements were present.4

       3 Indeed, in State v. Mason, 31 Wn. App. 41, 48, 639 P.2d 800 (1982), where the defendant was 
convicted of first degree assault, we held "[t]he mental element of the felony charged need not be proved 
by independent evidence prior to trial use of a defendant's confession when that element of the crime 
charged provides merely the degree of the generic crime charged."

       4 The statute provided in relevant part: "where independent proof of the corpus delicti is absent, 
and the alleged victim of the crime is dead or incompetent to testify, a lawfully obtained and otherwise 
admissible . . . statement of the defendant shall be admissible into evidence if there is substantial 
independent evidence that would tend to establish the trustworthiness of the . . . statement of the 
defendant." RCW 10.58.035(1). 

                                              12 

No. 64134-4-I/13

       The trial court declined to admit the statements and dismissed the case.  The 

Supreme Court affirmed dismissal, holding that even if Dow's statements were 

trustworthy and should have been admitted, RCW 10.58.035 pertained "only to 

admissibility" and did not relieve the State of the burden of presenting sufficient 

evidence independent of a defendant's confession to support a conviction.  Id. at 253-

54.  Given the State conceded there was no corroborating evidence independent of 

Dow's statements, the Court held the corpus delicti was not satisfied.   

       In reaching this conclusion, the Supreme Court also stated: "[T]he State must 

still prove every element of the crime charged by evidence independent of the 

defendant's statement."  Id. at 254.  Hummel relies on this statement to argue that 

instead of having to prove by independent evidence a causal connection between the 

death and a criminal act, the State must now prove every element of the charged crime.  

But again, Hummel takes this statement out of context.  First, the sentence was entirely 

unnecessary to resolve Dow.  It was undisputed that there was no evidence, other than 

the defendant's statements, to establish that the charged crime had been committed.  

Thus, the Court had no reason to analyze or elaborate on the quantum of proof 

       The legislature provided a non-exclusive list of factors to consider in determining trustworthiness:

       (a) Whether there is any evidence corroborating or contradicting the facts set out in the 
       statement, including the elements of the offense;
       (b) The character of the witness reporting the statement and the number of witnesses to
       the statement;
       (c) Whether a record of the statement was made and the timing of the making of the 
       record in relation to the making of the statement; and/or
       (d) The relationship between the witness and the defendant.

 RCW 10.58.035(2)(a-d).

                                              13 

No. 64134-4-I/14

necessary to establish the corpus delicti because there was none, and the Court's 

statement on this issue was "wholly incidental" to the decision.  Statements made in the 

course of the Supreme Court's reasoning that are "wholly incidental" to the basic 

decision constitute dictum and do not bind us.  See Burress v. Richens, 3 Wn. App. 63, 

66, 472 P.2d 396 (1970).  

       Second, if the cited statement is to be taken at face value, as is urged by 

Hummel, it directly 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.5  Moreover, neither Hummel nor the Dow court cite to any 

       5 See, e.g., State v. Gates, 28 Wash. 659, 695, 69 P. 385 (1902) (in manslaughter case, corpus 
delicti requires only "the existence of a certain act or result forming the basis of the criminal charge; and 
. . . the existence of criminal agency as the cause of this act or result"); State v. Richardson, 197 Wash. 
157, 163, 84 P.2d 699 (1938) (in first degree murder case, corpus delicti requires only existence of act 
forming basis of criminal charge and criminal agency); State v. Fry, 39 Wn.2d 8, 11-13, 16, 234 P.2d 531 
(1951) (in manslaughter case, corpus delicti satisfied by circumstantial evidence of fact of death and 
testimony connecting defendant to the crime); Little, 57 Wn.2d at 521, (in second degree murder case, 
corpus delicti requires only two elements: "[t]he fact of death, and . . . a causal connection between the 
death and the criminal conduct of the accused"); State v. Thompson, 58 Wn.2d 598, 604, 364, P.2d 527 
(1961) (in second degree murder case, "[p]roof of corpus delicti is proof that a crime has been 
committed"); Lung, 70 Wn.2d at 371 (in second degree homicide case, corpus delicti requires only "fact 
of death and . . . 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"); State v. Fagundes, 26 
Wn. App. 477, 484, 614 P.2d 198 (1980) (in first degree felony murder, first degree rape, first degree 
kidnapping, and first degree theft case, corpus delicti satisfied where "the facts established support a 
logical and reasonable deduction that the crimes had, in fact, been committed"); Mason, 31 Wn. App. at 
47-48, (in first degree assault case, this court specifically rejected the idea that corpus delicti requires all 
independent proof of all elements such as mens rea: "defendant's argument is that all the material 
elements of the statutory offense are necessary to establish the corpus delicti.  We disagree and decline 
to impose such a rule");  State v. Sellers, 39 Wn. App. 799, 802, 695 P.2d 1014 (1985) (in second degree 
murder case where no body was found, corpus delicti required only "the fact of death, and . . . the 
responsibility of a criminal agency for the death"); State v. Quillin, 49 Wn. App. 155, 162, 741 P.2d 589 
(1987) (in first-degree felony murder case, corpus delicti requires only proof of "fact of death, and . . . the 
responsibility of a criminal agency for the death[,]" and moreover, "[a] causal connection between the 
defendant and crime is not required"); Aten, 130 Wn.2d at 655 (in a homicide case, corpus delicti
consists of only two elements: "(1) the fact of death and (2) a causal connection between the death and a 
criminal act"); State v. Bernal, 109 Wn. App. 150, 152, 33 P.3d 1106 (2001) (in controlled substances 

                                              14 

No. 64134-4-I/15

case holding that every element of the charged crime need be proved to establish the 

corpus delicti.  Although the statement upon which Hummel relies was followed by a 

citation to State v. Brockob, as noted in the citation itself, that case held only that "[a] 

defendant's incriminating statement alone is not sufficient to establish that a crime took 

place."  Brockob, 159 Wn.2d at 328 (footnote omitted) (citing Aten, 130 Wn.2d at 655-

56).  Moreover, the Brockob court explicitly stated: "The independent evidence need 

not be sufficient to support a conviction, but it must provide prima facie corroboration of 

the crime described in a defendant's incriminating statement."  Id. at 328.  Nowhere in 

Brockob did the Court indicate that the State was required to prove every element of 

the charged crime to establish the corpus delicti.    

       We thus reject Hummel's argument that the corpus delicti rule has been modified

and adhere to the view that the evidence is sufficient to establish the corpus delicti in a 

homicide case if it leads to a reasonable and logical inference of death and a causal 

connection between the death and a criminal act.

       Hummel also cites Aten and Brockob to argue that the independent evidence is 

insufficient to establish the corpus delicti unless it also "prove[s] the nonexistence of 

any reasonable hypothesis of innocence." Because the source of this proposition is 

Lung, (see Aten, 130 Wn.2d at 660, quoting Lung, 70 Wn.2d at 371), a review of that 

homicide case, "the corpus delicti rule requires that the State produce evidence, independent of the 
accused's statements, sufficient to support a finding that the charged crime was committed by 
someone"); State v. Rooks, 130 Wn. App. 787,802, 125 P.3d 192 (2005) (in second degree murder case, 
corpus delicti required only "the fact of death and . . . a causal connection between the death and a 
criminal act").

                                              15 

No. 64134-4-I/16

case is instructive. Lung was similar to this case because it involved a murder 

prosecution where the victim's body was never recovered.  When the victim, Lung's 

estranged wife, suddenly disappeared, Lung was questioned by the police.  He

provided a statement in which he claimed a loaded rifle in his closet accidentally 

discharged when he reached into the closet for his jacket.  The victim was standing

nearby, and was killed by the single shot.  According to Lung, he panicked, put her 

body in his truck, drove to the river and threw her body into it.  Lung, 70 Wn.2d 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. Lung claimed he

put the victim's coat, purse, and shoes back in her car.  Id. at 368.

       Lung'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 a bullet from the defendant's rifle.  Id.  Blood found in Lung's 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 368-69.  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. The jury convicted the defendant of second degree murder.

       On appeal, the defendant contended that the trial court erred in admitting his

statement because, without the body, there was no independent evidence proving the 

fact of death. Id. at 371.  But the Court held that the evidence was sufficient to 

                                              16 

No. 64134-4-I/17

establish the corpus delicti. The Court held:

       The difficulty in the case at bar is the fact that the body of the victim was 
       never found.  Is the body or some part thereof required to establish the 
       'fact of death' element in the corpus delicti?  We think not.  To require 
       direct proof of the killing or the production of the body of the alleged 
       victim in all cases of homicide would be manifestly unreasonable and 
       would lead to absurdity and injustice.  

       The final test is whether the facts found and the reasonable inferences 
       from them have proved the nonexistence of any reasonable hypothesis 
       of innocence.  All that is required to prove death is circumstantial 
       evidence sufficient to convince the minds of reasonable men of the 
       existence of that fact.  The law employs the judgment of reasonable 
       minds as the only means of arriving at the truth by inference from the 
       facts and circumstances in evidence.  If this were not true, an infinite 
       number of crimes involving the elements of a specific intent would go 
       unpunished.

Id. at 371.

       Hummel seizes on the Court's statement that the independent evidence of the 

corpus delicti must prove "the nonexistence of any reasonable hypothesis of 

innocence," but when viewed in context, the Court clearly holds that, even without the 

body, where the independent circumstantial evidence is sufficient to convince 

reasonable minds of the fact of death and of the causal connection between the death 

and a criminal act, the corpus delicti is satisfied and the accused's statements are 
admissible.6  

       6 The statement in Lung, later cited by the Aten court, that "the facts found and the reasonable 
inferences from them have proved the nonexistence of any reasonable hypothesis of innocence[,]" Lung, 
70 Wn.2d at 371,  was unrelated to the application of the corpus delicti rule, but instead was related how 
circumstantial evidence was weighed in 1967 when Lung was decided.  That rule that was abrogated by 
our Supreme Court in 1975, as courts around the country came to realize that some circumstantial 
evidence was not necessarily less reliable than some "direct" evidence, e.g., eyewitness identification.  
State v. Gosby, 85 Wn.2d 758, 762-66, 539 P.2d 680 (1975) (abrogating rule requiring the jury to be 
instructed that "to sustain a conviction on circumstantial evidence alone, the circumstances proved by 

                                              17 

No. 64134-4-I/18

       As we explained in State v. Rooks, 130 Wn. App. 787, the result in Aten is 

entirely consistent with this understanding of Lung.  In Rooks, the defendant was 

convicted of second degree murder for the killing of his ex-girlfriend and mother of his 

child.  The deceased's body was found some months after her disappearance and was 

in an advanced state of decomposition.  Rooks had made statements to a friend and to 

the police that he had strangled his ex-girlfriend.  The medical examiner was unable to 

determine the manner and cause of death, but could not rule out homicide by 

strangulation and, because of evidence that the deceased had ingested cocaine within 

a few days of her death, could also not rule out a drug overdose. The State introduced 

evidence about the deceased's sudden disappearance, a custody dispute between the 

deceased and Rooks and that Rooks had abused the deceased physically and 

psychologically throughout their relationship.  There was also evidence that the 

deceased had a history of drug use, including cocaine.  The trial court denied Rooks'

motion to exclude his statements based on the corpus delicti rule.  On appeal, Rooks, 

like Hummel, relied on Aten to argue that because the independent evidence did not 

prove "'the nonexistence of any reasonable hypothesis of innocence,'" the corpus

delicti was not established.  Rooks, 130 Wn. App. at 803 (quoting Aten, 130 Wn.2d at 

660).

the State must not only be consistent with each other and consistent with the hypothesis that the accused 
is guilty, but also must be inconsistent with any reasonable hypothesis or theory which would establish, or 
tend to establish, his innocence").  It would be anomalous that this rule would be abandoned when 
considering whether the reasonable doubt standard has been met, but adhered to in determining whether 
prima facie the corpus delicti has been established. The statement in Aten that proof of the corpus delicti
must be inconsistent with innocence was both dictum and a misreading of a long-abandoned evidentiary 
and jury instruction standard that was unrelated the corpus delicti rule.

                                              18 

No. 64134-4-I/19

       We rejected Rooks' argument, explaining that Rooks misconstrued the holding in 

Aten.

       Rooks assumes the Court in Aten concluded the corpus delicti was not 
       established because there was more than one logical and reasonable 
       explanation for the death.  But Aten clearly states there was no reasonable 
       inference of criminal conduct in that case.  Because the Court concluded there 
       was no reasonable and logical inference that the infant died as a result of 
       criminal negligence, Aten does not hold that the corpus delicti cannot be 
       established where there are reasonable and logical inferences of both criminal 
       and non-criminal causes of death.  

Id. at 803-04 (citing Aten, 130 Wn.2d at 661).  We further explained that the corpus 

delicti is satisfied where the totality of the independent evidence supports a reasonable 

and logical inference that there was a death and a causal connection between the 

death and a criminal act.  We concluded that the independent evidence in Rooks met 

that test.  Id.

       Likewise, in this case, when the evidence is viewed in a light most favorable to 

the State and all reasonable inferences are construed in favor of the State, it leads to a 

reasonable and logical conclusion that Alice is deceased and that her death was a 

result of a criminal agency.  The evidence that Alice vanished suddenly and 

surprisingly, never to be heard from again; that she was close with her children and

was unlikely to simply abandon them; that, without explanation, she failed to attend a 

special event for her daughter's birthday; and that the failure to complete a work 

assignment was out of character, leads to a reasonable and logical inference that she 

is deceased.  The evidence that her daughter revealed Hummel's molestation just days 

before Alice's disappearance; that Hummel continued to molest his daughter after his 

                                              19 

No. 64134-4-I/20

wife vanished; that he lied to his children about Alice's belonging and whereabouts; 

that he forged Alice's signature on documents; and that he stole Alice's pension

immediately after she vanished leads to a logical and reasonable inference that Alice is 

dead and that her death is the result of a criminal agency on the part of Hummel.  Lung, 

70 Wn.2d at 371.7 We reject Hummel's arguments on this issue, and decline to dismiss 

the case with prejudice.

       II. Public Trial Right

       Hummel also argues the trial court violated his right to a public trial by 

questioning a number of jurors in chambers without first weighing the factors set forth in 

Bone-Club, 128 Wn.2d 254.  See State v. Strode, 167 Wn.2d 222, 217 P.3d 310 (2009) 

and State v. Momah, 167 Wn.2d 140, 217 P.3d 321 (2009) (Bone-Club factors must be 

weighed before courtroom closure).  We agree, and therefore reverse and remand for 

retrial.

       Article I, section 22 of the Washington Constitution and the Sixth Amendment to 

the United States Constitution guarantee a criminal defendant the right to a public trial.  

Article I, section 10 of the Washington Constitution provides that "'[j]ustice in all cases 

shall be administered openly, and without unnecessary delay.'" This provision 

guarantees the public and the press the right to open and accessible judicial 

       7 This evidence is analogous to that presented in State v. Thompson, 73 Wn. App. 654, 870 P.2d 
1022 (1994), a first degree murder case, where this court concluded the corpus delicti was established 
even though the victim's body was never found.  See Thompson, 73 Wn. App. at 663, (relying on the 
victim's habits regarding housework, patterns of contact with her friends, and care of her pets, as well as 
evidence that she disappeared suddenly and without warning, as creating a strong inference that she 
died and her death was sudden and caused by criminal means).

                                              20 

No. 64134-4-I/21

proceedings.  State v. Easterling, 157 Wn.2d 167, 174, 137 P.3d 825 (2006).  After the 

court weighs the Bone-Club factors, it must enter specific findings justifying its closure 

order.  Easterling, 157 Wn.2d at 175.  

       Not all in-chambers conferences implicate the right to a public trial, however.  

Public trial rights apply only in "'adversary proceedings,' including presentation of 

evidence, suppression hearings, and jury selection."  In re Det. of Ticeson, 159 Wn. 

App. 374, 384, 246 P.3d 550 (2011) (quoting State v. Koss, 158 Wn. App. 8, 16, 241 

P.3d 415 (2010)).  Importantly, the right does not attach where the court resolves 

"'purely ministerial or legal issues that do not require the resolution of disputed facts

. . . .'"  Ticeson, 159 Wn. App. at 384 (quoting Koss, 158 Wn. App. at 17.)

       The State contends this case is analogous to State v. Momah, where the 

Supreme Court held the failure to conduct a Bone-Club analysis did not warrant 

reversal.  Momah involved a heavily publicized trial that received extended media 

coverage.  Momah, 167 Wn.2d at 145.  Before trial, the trial judge, prosecutor and 

defense attorney discussed which of the more than 100 jurors would be individually 

questioned.  Id. at 146. The defense attorney argued for the expansion of in-chambers 

questioning, stating:

       [I]t is our position and our hope that the Court will take everybody 
       individually, besides those . . . we have identified . . .  Our concern is this: 
       They may have prior knowledge to the extent that they might disqualify 
       themselves, or we have the real concern that they will contaminate the 
       rest of the jury. 

Id.  After admonishing the jury pool not to talk about the case, the court moved to 

                                              21 

No. 64134-4-I/22

chambers to begin individually questioning jurors.  Momah's attorney actively 

participated in the process, questioned jurors, and exercised numerous for cause 

challenges.  Id. at 146-47.  At all times, counsel and the trial court in the Momah case 

were keenly aware of and sought to protect the requirement that the trial be public.  

See Strode, 167 Wn.2d at 233 (Fairhurst, J., concurring).

       In the early closure cases, trial courts were often reversed for closing the 

courtroom "without seeking objection, input, or assent from the defendant; and in the 

majority of cases, the record lacked any hint that the trial court considered the 

defendant's right to a public trial when it closed the courtroom."  Momah, 167 Wn.2d at 

151.  But the facts of Momah set it apart from earlier closure case law:

       Momah affirmatively assented to the closure, argued for its expansion, 
       had the opportunity to object but did not, actively participated in it, and 
       benefited from it.  Moreover, the trial judge in this case not only sought 
       input from the defendant but he also closed the courtroom after 
       consultation with the defense and the prosecution.  Finally, and perhaps 
       most importantly, the trial judge closed the courtroom to safeguard 
       Momah's constitutional right to a fair trial by an impartial jury.  

Id. at 151-52.  The majority thus held that although the procedure set forth in Bone-

Club is the better practice, closure had nevertheless occurred to protect Momah's 

rights.  Id. at 155.  As such, the Court held Momah suffered no actual prejudice, and 

reversal was not warranted.  Id. at 156.  

       Hummel argues his case is more like Strode, a plurality decision issued the 

same day as Momah.  In Strode, the trial court sua sponte conducted in-chambers 

questioning of eleven prospective jurors.  The prosecution and defense counsel 

                                              22 

No. 64134-4-I/23

participated in this questioning.  Four justices in the "lead" opinion wrote that Strode's 

conviction must be reversed because "the record is devoid of any showing that the trial 

court engaged in the detailed review that is required in order to protect the public trial 

right."  Strode, 167 Wn.2d at 228.  On this point, the concurrence agreed: "Unlike the 

situation presented in Momah, here the record does not show that the court considered 

the right to a public trial in light of competing interests."  Id. at 235 (Fairhurst, J., 

concurring).  

       We agree with Hummel and conclude this case is more like Strode.  Here, 

Hummel proposed and the court adopted a juror questionnaire that permitted 

prospective jurors to inform counsel and the trial court if the juror "would prefer to 

discuss your answer in private." The court explained how this procedure would work to 

counsel and the venire, and then moved forward with questioning individual jurors in 

chambers without conducting a Bone-Club analysis:

       If the Court chooses, we may, if there's no one in objection, have those 
       jurors who have answered questions that way, join myself, the attorneys, 
       and the defendant in chambers along with the court reporter to inquire 
       about those particular areas in private, just as to those questions that the 
       potential juror members have marked as something that they would like to 
       answer in private.

       Is there anyone in this courtroom who has any objection whatsoever to us 
       following that procedure for those jurors  And there are nine jurors who 
       have so indicated.  Anyone who has any objection whatsoever to that?

       Seeing no objection, we're going to take a few moments and do that.  I'm 
       going to ask the bailiff to bring those jurors in one at a time in order of 

                                              23 

No. 64134-4-I/24

       their numbers.

       We'll inquire very briefly of those few questions in the jury room, and as 
       soon as we've completed that, we'll come back and begin the more 
       general voir dire with the rest of the group.

       . . .

       We'll take a short recess to chambers then, and the court reporter will join 
       us along with the Defendant and counsel.

       (The following proceedings occurred in chambers.  Juror Number 5 
       entered chambers.)

Although the trial court did ask in open court whether "anyone" objected to the closure, 

the court did not engage in any meaningful review or balancing of the defendant's right 

to an impartial jury versus public trial rights.  In other words, as was the case in Strode, 

"the record is devoid of any showing that the trial court engaged in the detailed review 

that is required in order to protect the public trial right."  Strode, 167 Wn.2d at 228.

       In Strode the Court held that "'[t]he denial of the constitutional right to a public 

trial is one of the limited classes of fundamental rights not subject to harmless error 

analysis.'"  Id. at 231 (quoting Easterling, 157 Wn.2d at 181).  This was because 

"denial of the public trial right is deemed to be a structural error and prejudice is 

necessarily presumed."  Id. (citing Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 

1827, 144 L.Ed.2d 35 (1999).  For that reason, the Court held the error "cannot be 

considered harmless and, therefore, Strode's convictions are reversed and the case is 

remanded for a new trial."  Id.  As such, we are required under Strode to reverse 

Hummel's convictions and remand for a new trial.

       III. Confrontation Clause

                                              24 

No. 64134-4-I/25

       Hummel next contends he was denied his Sixth Amendment right to confront 

witnesses against him when several of the State's witnesses discussed how they 

unsuccessfully attempted to use database search engines to locate Alice Hummel.  

Because this, and the other issues discussed below, may arise again on remand, we 

address them here.  

       Under the Sixth Amendment, "[i]n all criminal prosecutions, the accused shall 

enjoy the right . . . to be confronted with witnesses against him."  "[T]he 'principle evil' at 

which the clause was directed was the civil-law system's use of ex parte examinations 

and ex parte affidavits as substitutes for live witnesses in criminal cases."  State v. 

Jasper, 158 Wn. App. 518, 526, 245 P.3d 228 (2010) rev. granted, 170 Wn.2d 1025 

(2011) (quoting State v. Lui, 153 Wn. App. 304, 314, 221 P.3d 948 (2009) rev. granted,

168 Wn.2d 1018, 228 P.3d 17 (2010); Crawford v. Washington, 541 U.S. 36, 50, 124 S. 

Ct. 1354, 158 L.Ed.2d 177 (2004).  Not every out-of-court statement used at trial 

implicates the core concerns of the confrontation clause, however.  As we explained in 

Jasper, the confrontation clause is implicated only by a witness who is bearing 

testimony:

       [T]he scope of the clause is limited to 'witnesses' against the 
       accused  --  in other words, those who 'bear testimony.' 'Testimony,' in 
       turn, is typically '[a] solemn declaration or affirmation made for the 
       purpose of establishing or proving some fact.'"  

Jasper, 158 Wn. App. at 526 (quoting Crawford, 541 U.S. at 51).  The United States 

Supreme Court listed three possible formulations for the "core class" of testimonial 

statements covered by the confrontation clause:

                                              25 

No. 64134-4-I/26

       [1] ex parte in-court testimony or its functional equivalent  --  that is, 
       material such as affidavits, custodial examinations, prior testimony 
       that the defendant was unable to cross-examine, or similar pretrial 
       statements that declarants would reasonably expect to be used 
       prosecutorially; [2] extrajudicial statement . . . contained in formalized 
       testimonial materials, such as affidavits, depositions, prior testimony, 
       or confessions; [3] statements that were made under circumstances 
       which would lead an objective witness reasonably to believe that the 
       statement would be available for use at a later trial.

Jasper, 158 Wn. App. at 527 (quoting Crawford, 541 U.S. at 51-52 (internal quotation 

marks and citations omitted)).

       Hummel argues computer searches conducted by his children and two other 

witnesses for the State for the purpose of attempting to locate Alice Hummel amount to 

testimonial statements covered by the confrontation clause.  Hummel relies largely on 

Crawford, Jasper, Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527, 174 

L.Ed.2d 314 (2009), and United States v. Martinez-Rios, 595 F.3d 581 (5th Cir. 2010).  

We disagree.  

       In Crawford, the testimony at issue was a tape recorded statement of the 

defendant's wife, taken by the police.  According to the U.S. Supreme Court,

"[s]tatements taken by police officers in the course of interrogations are also testimonial 

under even a narrow standard."  Crawford, 541 U.S. at 52.  At issue in Jasper was 

admission of sworn testimony from the Department of Licensing, an affidavit that 

"contain[ed] ex parte statements made for the purpose of establishing the fact that 

Jasper was driving with a suspended license on the day of the collision."  Jasper, 158 

Wn. App. at 531.  Similarly, in Melendez-Diaz, the trial court admitted sworn testimony 

from analysts at the Massachusetts State Laboratory Institute certifying the substance 

                                              26 

No. 64134-4-I/27

seized from the defendant was cocaine.  Nobody from the lab appeared to testify.  

Melendez-Diaz, 129 S. Ct. at 2531-32.  Likewise, in Martinez-Rios, the defendant was 

convicted of illegally re-entering the United States.  To secure the conviction, the 

prosecution sought, and the District Court admitted, a "Certificate of Nonexistence of 

Record" from a records analyst declaring that after a diligent search was performed, a 

field office director with the U.S. Citizenship and Immigration Services could find no 

record that the defendant had obtained consent to re-enter the country.  This analyst 

never testified at trial.  Martinez-Rios, 595 F.3d at 583-84.

       No such evidence was ever introduced here.  There were no certificates, 

affidavits, declarations, or other such testimony from third parties that did not participate 

in Hummel's trial and were not subject to cross-examination.  Indeed, all of the evidence 

about which Hummel complains came from live testimony at trial that was subject to 

cross-examination by Hummel.  To the extent Hummel takes issue with the reliability of 

the computer searches to which several witnesses testified, that subject was fully 

available for Hummel to explore on cross-examination, or perhaps move in-limine to 

exclude as not scientifically valid.  It is not, however, a confrontation issue, and as such, 

Hummel was not denied his Sixth Amendment right to confront witnesses.  We reject his 

arguments on this issue.

       IV. Proposed Prison Informant Testimony Instruction

       Hummel also claims the trial court erred by declining to give an instruction 

informing the jury about the inherent untrustworthiness of prison informant testimony.  A 

                                              27 

No. 64134-4-I/28

trial court's refusal to give a proposed instruction is reviewed on appeal for an abuse of 

discretion.  State v. Picard, 90 Wn. App. 890, 954 P.2d 336 (1998).  A trial court 

abuses its discretion if its decision is manifestly unreasonable or is based on untenable 

grounds or for untenable reasons. In re Pers. Restraint of Duncan, 167 Wn.2d 398, 

402, 219 P.3d 666 (2009).  Instructions are adequate if they allow a party to argue its 

theory of the case and do not mislead the jury or misstate the law.  State v. Barnes, 153 

Wn.2d 378, 382, 103 P.3d 1219 (2005).  

       Hummel proposed several versions of an instruction regarding the prison 

informant who testified against him, all of which were rejected by the trial court.  Hummel 

relies largely on federal and out-of-state case law to argue his right to a fair trial was 

violated when the trial court declined to give one of his instructions.  He acknowledges 

there is no Washington case requiring the jury be instructed as to the inherent 

untrustworthiness of jailhouse informant testimony.  He asks us, however, to treat 

jailhouse informant testimony in the same fashion that accomplice testimony is treated.  

Hummel is correct that Washington courts recognize an informant "may have an interest 

in testifying against the defendant."   State v. Larson, 160 Wn. App. 577, 588, 249 P.3d 

669, rev. denied, 172 Wn.2d 1002, 257 P.3d 666 (2011).  In the context of an 

accomplice, trial courts "must" give the pattern jury instruction "whenever there is 

uncorroborated accomplice testimony."  Id. (11 Washington Practice: Washington 

Pattern Jury Instructions: Criminal 6.05, at 184 (3d. 2008)).  But here, the jailhouse

informant was not an accomplice, and as such, the instruction regarding uncorroborated 

                                              28 

No. 64134-4-I/29

accomplice testimony is not mandatory, as was the case in Larson.  

       In our view, State v. Allen, 161 Wn. App. 727, 255 P.3d 784, rev. granted, 172 

Wn.2d 1014, 161 P.3d 63 (2011), is dispositive on this issue.  In that case, the 

defendant argued he was denied the right to a fair trial when the trial court declined to 

instruct the jury on the untrustworthiness of cross-racial eyewitness testimony.  Allen, 

161 Wn. App. at 734.  We acknowledged the abundance of authority showing that 

identifications when an eyewitness of one race is asked to identify a particular individual 

of another race are particularly problematic.  Allen, 161 Wn. App. at 735 and 756-75, 

Ellington, J. concurring ("modern research establishes that cross-racial identification of 

strangers is much less reliable than same-race identifications").  We nevertheless

affirmed on grounds the Supreme Court, in State v. Laureano, 101  Wn.2d 745, 768, 

682 P.2d 889 (1984) (overruled on other grounds, State v. Brown, 111 Wn.2d 124, 132-

33, 761 P.2d 588 (1988)), had already held it was not error to decline to provide such an

instruction.  Allen, 161 Wn. App. at 739, 745.  Additionally, although we were 

sympathetic to the argument that juries often do not understand that cross-racial 

identifications can be untrustworthy, we also declined to diverge from the line of cases 

indicating such instructions can in some cases run afoul of our State Constitution's 

prohibition on comments on the evidence.  Id. ("We also follow our prior cases holding 

that an instruction about the reliability of eyewitness evidence risks violating the 

constitutional prohibition against comments on the evidence").  

       Hummel's proposed instructions here are similar to those proposed in Allen.  We 

                                              29 

No. 64134-4-I/30

adhere to Allen, and hold the trial court did not abuse its discretion in declining to give 

the instructions.

       V.  Offender Score

       Hummel argues the trial court erroneously included his federal convictions for 

wire fraud when calculating his offender score.  We agree.  The law in effect at the time 

the offense was committed controls the punishment available for the offense.  RCW 

9.94A.345; State v. Varga, 151 Wn.2d 179, 191, 86 P.3d 139 (2004).  The State 

charged Hummel with committing first degree murder in October 1990.  CP 50, 498.  In 

1990, out-of-state convictions could be included in an offender score only if they were 

comparable to a Washington felony.  See former RCW 9.94A.360(3) (1990).  At the 

time, the statute did not address federal convictions, but this court construed out-of-

state convictions to include those from federal courts.  State v. Villegas, 72 Wn. App. 

34, 37, 863 P.2d 560 (1993).  In a comparability analysis, the elements of a foreign 

conviction must be comparable.  In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 

111 P.3d 837 (2005).  

       Hummel contends the elements of his federal wire fraud convictions were not 

comparable to any Washington crime, and he correctly notes that the trial court failed 

to undertake any comparability analysis.  The State essentially concedes error, but 

argues Hummel waived the issue by not raising comparability at sentencing.  

Specifically, the State contends that under "former RCW 9.94A.530(2) (2008),"

Hummel's silence regarding comparability must be construed as "acknowledgement."  

                                              30 

No. 64134-4-I/31

We disagree.  The State is relying on a 2008 statute, even though it previously 

acknowledged the law as it was in 1990 applies.  

       In 1990, former RCW 9.94A.360(2) provided that in "determining any sentence, 

the trial court may use no more information than is . . . admitted, acknowledged, or 

proved in a trial or at the time of sentencing." Notably, the 1990 version of the statute 

did not contain a further definition of "acknowledgement." Although the 2008 version of 

the statute now further defines acknowledgement as "not objecting to criminal history 

presented at the time of sentencing[,]" RCW 9.94A.530(2)(2008), that definition was not 

present in the 1990 version of the statute, and cannot be applied in Hummel's case.  

Moreover, the Supreme Court rejected the State's interpretation of "acknowledge" in 

State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999), where it held that "a defendant 

does not 'acknowledge' the State's position regarding classification absent an 

affirmative agreement beyond merely failing to object."  Ford, 137 Wn.2d at 483.  

       In short, the trial court erred in including Hummel's wire fraud convictions in his 

offender score. Should Hummel be again convicted on remand, his wire fraud 

conviction cannot be used in calculating his offender score.

       VI.  Statement of Additional Grounds

       Hummel raises several issues in his Statement of Additional Grounds, none of 

which have merit.  Hummel first takes issue with his son's testimony that the suicide 

note his son found appeared to be in Hummel's handwriting.  According to Hummel, 

since the letter no longer exists, it cannot be analyzed by handwriting experts, and his 

                                              31 

No. 64134-4-I/32

son's testimony is therefore faulty.  But this goes to the weight of his son's testimony, 

not to admissibility.

       Likewise, Hummel believes the samples used by the handwriting expert to 

formulate her opinion that it was actually Hummel who sent the letters and cards to his 

children, not Alice, were faulty.  Again, this goes to the weight of the evidence, not to 

admissibility.  Hummel also explains why he believes Alice would not show up on a 

search of computer records: that Alice was only working at a company on a temporary 

                                              32 

No. 64134-4-I/33

basis.  This also appears to be challenging the weight to be given to the testimony 

about the futile attempts to find Alice.

       To the extent Hummel challenges the use of his federal wire fraud convictions in 

his sentencing, we addressed this issue above.  Finally, Hummel argues the trial court 

erroneously denied his Knapstad motion.  He makes no argument, however, as to why it 

was error for the trial court to deny the motion, and we decline to consider it.

       Reversed and remanded for further proceedings.

WE CONCUR:

                                              33