Opinion
No. 21731-1-III.
Filed: March 11, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Chelan County. Docket No. 02-8-00426-8. Judgment or order under review. Date filed: 12/13/2002. Judge signing: Hon. Ted W Jr Small.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Allen Franklin Blackmon, Attorney at Law, Chelan County Pros Office, PO Box 2596, Wenatchee, WA 98807-2596.
Cody A. Boggs appeals his juvenile conviction for various property crimes arising out of break-ins and vandalism at two sites in the Malaga area of Chelan County. He contends the court erred in finding he participated in the crimes in light of the contradictory evidence. He also moves the court to reverse the conviction and dismiss the case because of the trial court's delay in filing findings of fact and conclusions of law. We deny the motion and affirm.
On the night of May 23, 2002, someone broke into a fenced area owned by Selland Construction Company. Property damage was estimated at about $150, and hammers, pliers, and possibly rubber gloves were stolen. The same night, someone also broke into a nearby fenced area containing a substation owned by the Chelan County Public Utility District. Vandalism at the substation caused damage estimated at $12,914 and a loss of power to customers in the area.
The State charged Mr. Boggs, who was 13 years old at the time, with two counts of second degree burglary, one count of third degree theft, one count of first degree malicious mischief, and one count of third degree malicious mischief.
At trial, the State presented testimony of an accomplice, 15-year-old Pedro Naranjo, who lived at the same foster home as Mr. Boggs. Mr. Naranjo testified he and Mr. Boggs broke into the construction site and took hammers and pliers. He testified the boys then broke into the substation, where they broke various items and caused the power to go out. He testified he had lied to a police officer earlier about his involvement. He stated he and Mr. Boggs had sneaked out of the foster home `a lot' and `almost daily' before May 23. Report of Proceedings (RP) at 97, 100.
Mr. Naranjo testified he had no recollection of talking to a friend, Darrin Ulrich, about these events. However, Mr. Ulrich testified he talked with Mr. Naranjo and Mr. Boggs about the incident the next day. Mr. Ulrich testified Mr. Boggs said he was `breaking stuff,' `throwing rocks,' and `swinging a bat.' RP at 111-12. Mr. Ulrich admitted his testimony was different from a statement he had given to police earlier. On cross examination, Mr. Ulrich agreed that the only definitive statement he could recall from Mr. Boggs was that `he was with Pedro the night that it happened, and that he was throwing rocks at gadgets, and then he watched Pedro turn the power off.' RP at 120. He also admitted the boys did not mention breaking into a construction site.
Beatrice Bernal-Manzo, the foster mother, testified that she checked the boys' room when the power went out and discovered they were gone. She testified she went outside and saw them walking toward the home, together, from the direction of the substation. She said the boys would sneak out `quite often,' but on cross examination she testified she had caught them only twice before May 23. RP at 158. She said they had become friends before the incident.
Mr. Boggs denied involvement in the crimes. He testified he had been placed in the foster home on May 22, the day before the crimes. His caseworker confirmed this was the placement date. Mr. Boggs also admitted his testimony was inconsistent with a statement he had given to a police officer.
In an oral ruling, the court noted that none of the witnesses' testimony was completely truthful. However, based on Mr. Boggs' lack of detail and his flat, unemotional demeanor, he found his testimony was not credible. The court found Mr. Boggs guilty of all of the crimes.
In its written findings, the court found Mr. Boggs guilty of two counts of second degree burglary, one count of third degree theft, and one count of first degree malicious mischief. The document does not address Count III of the information, charging third degree malicious mischief. However, the court's disposition indicates the court found Mr. Boggs guilty of that count as well. Neither party has addressed this discrepancy.
We first address Mr. Boggs' motion to dismiss the case for untimely entry of written findings of fact and conclusions of law. The trial court entered its oral findings on November 21, 2002, immediately after the trial. The disposition was entered on December 13. Mr. Boggs filed his notice of appeal on January 7, 2003, and he filed his opening brief on April 23. The State filed its response brief on June 19. On July 17, the superior court entered written findings of fact and conclusions of law. Mr. Boggs has objected to the findings' inclusion in the appellate record and has filed a motion on the merits to reverse, arguing the untimely filing of the findings and conclusions required dismissal.
JuCR 7.11(d) provides:
Written Findings and Conclusions on Appeal. The court shall enter written findings and conclusions in a case that is appealed. The findings shall state the ultimate facts as to each element of the crime and the evidence upon which the court relied in reaching its decision. The findings and conclusions may be entered after the notice of appeal is filed. The prosecution must submit such findings and conclusions within 21 days after receiving the juvenile's notice of appeal.
The court violated this rule by entering written findings and conclusions more than six months after Mr. Boggs filed his notice of appeal. Although Mr. Boggs contends dismissal is the proper remedy, the authority on which he relies has been overruled. State v. Naranjo, 83 Wn. App. 300, 921 P.2d 588 (1996), overruled by State v. Head, 136 Wn.2d 619, 964 P.2d 1187 (1998); State v. McCrorey, 70 Wn. App. 103, 851 P.2d 1234, review denied, 122 Wn.2d 1013 (1993), overruled by Head, 136 Wn.2d 619.
In Head, the court held:
We hold that the failure to enter written findings of fact and conclusions of law as required by CrR 6.1(d) requires remand for entry of written findings and conclusions. . . .
We note the possibility that reversal may be appropriate where a defendant can show actual prejudice resulting from the absence of findings and conclusions or following remand for entry of the same. For example, a defendant might be able to show prejudice resulting from the lack of written findings and conclusions where there is strong indication that findings ultimately entered have been `tailored' to meet issues raised on appeal. The burden of proving any such prejudice will be on the defendant. Cf. State v. Royal, 122 Wn.2d 413, 423, 858 P.2d 259 (1993) (burden of proving prejudice resulting from late entry of written findings and conclusions on defendant; concerning JuCR 7.11(d)).
Head, 136 Wn.2d at 624-25 (footnote omitted).
Mr. Boggs has not identified any prejudice from the late filing of the findings and conclusions, nor is any apparent from the record. The proper remedy under Head would be remand, which is not necessary here because the document already has been filed and made a part of the record on appeal. Mr. Boggs' motion on the merits therefore is denied.
We now address the substance of Mr. Boggs' appeal. He contends the contradictory evidence was insufficient to find he participated in the crimes. When a defendant challenges the sufficiency of the evidence, the appellate court must view the evidence in a light most favorable to the prosecution and must determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). The same standard applies regardless of whether the case is tried to a jury or to the court. See State v. Little, 116 Wn.2d 488, 491, 806 P.2d 749 (1991).
It is the role of the trier of fact — not the appellate court — to resolve conflicts in the testimony and to evaluate the credibility of witnesses. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989).
As the trial court noted, the testimony in this case was contradictory and at times confusing. However, the court clearly found other witnesses' testimony more credible than Mr. Boggs', and this determination is not subject to review.
Mr. Boggs also contends the court should have carefully examined the uncorroborated testimony of an accomplice, Mr. Naranjo. In a jury trial, such a cautionary instruction is required when accomplice testimony is not `substantially corroborated' by other evidence. State v. Harris, 102 Wn.2d 148, 155, 685 P.2d 584 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988); see 11 Washington Pattern Jury Instructions: Criminal sec. 6.05, at 136 (2d ed. 1994). Here, there was no jury, and the court is presumed to have considered the evidence only for proper purposes. In re Welfare of Harbert, 85 Wn.2d 719, 729, 538 P.2d 1212 (1975); State v. Miles, 77 Wn.2d 593, 601, 464 P.2d 723 (1970). Moreover, the State did not rely solely on Mr. Naranjo's testimony; the testimony of Mr. Ulrich and Ms. Bernal-Manzo also implicated Mr. Boggs. Mr. Naranjo's testimony thus was not uncorroborated, and a cautionary instruction would not have been required even in a jury trial.
The evidence was sufficient. The conviction is affirmed.
A majority of the panel has determined 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.
SWEENEY, J. and SCHULTHEIS, J., concur