Opinion
No. 22798-7-III
Filed: April 21, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 03-1-01807-5. Judgment or order under review. Date filed: 01/30/2004. Judge signing: Hon. Robert D. Austin.
Counsel for Appellant(s), Cece Lana Glenn, Attorney at Law, 1309 W Dean Ave Ste 100, Spokane, WA 99201-2018.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
After a bench trial, the trial court acquitted Mark Huckaba of an alleged second degree assault against his father. However, the court orally ruled Mr. Huckaba committed first degree assault against a law enforcement officer who was investigating the alleged assault against Mr. Huckaba's father. On reconsideration and before formal entry of a judgment and sentence, the trial court reasoned the evidence supported solely a second degree assault against the officer. On appeal, Mr. Huckaba incorrectly contends double jeopardy principles are offended because the clerk's minutes reflect a prior conviction for the first degree assault. Additionally, we reject his improper search contentions. Accordingly, we affirm.
FACTS
On a night in May 2003, Allen Huckaba fought with his son, Mark Huckaba at his son's neighboring farm home in Spokane County Washington. Second degree assault charges resulted against Mark Huckaba that were ultimately dismissed after a bench trial, in which Mr. Huckaba successfully claimed self defense. The court did orally rule Mr. Huckaba had committed a charged first degree assault of Deputy Thomas Edelbrock, based upon events occurring during the deputy's investigation of the father/son assault. It is unnecessary to recount the facts except as they bear on Mr. Huckaba's ultimate conviction for second degree assault of the deputy.
Both Mark and Allen Huckaba were injured during the fight, the father more severely. Allen Huckaba's wife called 911. Several deputies responded. Allen Huckaba was then taken to the hospital. Meanwhile, Mark Huckaba fled into a nearby orchard taking with him a loaded .22 handgun, a derringer, a shotgun, an unloaded .22 caliber rifle, and extra ammunition. The responding officers learned Mr. Huckaba had fought with his father, was injured, probably intoxicated, and was possibly armed. Without permission, the officers unsuccessfully searched Mark Huckaba's home. The officers believed Mark Huckaba could not go far because he had bad knees. Mr. Huckaba was soon found by a canine unit under a tree with the weapons arranged around him. Officers reported Mr. Huckaba pointed the rifle at Deputy Edelbrock. Although Mr. Huckaba disputed this, the trial court resolved this issue against him.
During the bench trial, Mark Huckaba made a belated and unsuccessful motion to suppress evidence of the four firearms based upon an alleged illegal search. Mr. Huckaba's wife denied search permission of the family home. Although the parties disputed whether Mr. Huckaba was within the curtilage when found in the orchard, the court decided exigent circumstances existed, permitting the search, pursuant to State v. Terravona, 105 Wn.2d 632, 716 P.2d 295 (1986).
After orally dismissing the case against Mr. Huckaba for the alleged assault against his father, the court announced in regards to the first degree assault against Deputy Edelbrock: `I believe the elements of first degree assault have been satisfied and that the defendant did intend to create that fear and apprehension by use of a firearm. I find the defendant guilty of first degree assault on Count II.' Report of Proceedings at 432-33 (emphasis added). The ruling was noted in the clerk's minutes.
Mark Huckaba moved for arrest of judgment, reconsideration, and a new trial, contending a conviction for first degree assault requires intent to inflict great bodily harm, not intent to create fear and apprehension. In response, the State moved the court to supplement its oral ruling to reflect a finding that Mark Huckaba had the intent to inflict great bodily harm. After briefing and argument, the court issued a memorandum, ruling the evidence was solely `sufficient for second-degree assault under (C) of 021. . . . I was in error in finding him guilty of first-degree assault, I now find him guilty of second-degree assault in count 2.' Clerk's Papers at 112-13.
Under Washington law, `[a] person is guilty of assault in the first degree if he or she with intent to inflict great bodily harm . . . assaults another with a firearm.' RCW 9A.36.011 (emphasis added).
The trial court standard-range sentenced Mr. Huckaba for the second degree assault of Deputy Edelbrock, including a firearm enhancement. He appealed.
ANALYSIS A. Double Jeopardy
Mr. Huckaba's present double jeopardy issue incorrectly assumes he was `convicted' on the merits for purposes of RCW 10.43.020 when the trial court's oral decision was recorded in the clerk's minutes following Mr. Huckaba's bench trial. Whether a defendant's double jeopardy rights have been violated is a question of law this court reviews de novo. State v. Frodert, 84 Wn. App. 20, 25, 924 P.2d 933 (1996).
The Fifth Amendment provides, no person shall `be subject for the same offense to be twice put in jeopardy of life or limb.' U.S. Const. amend. V. Similarly, under the Washington State Constitution, `[n]o person shall . . . in any criminal case . . . be twice put in jeopardy for the same offense.' Const. art. I, sec. 9. Chapter 10.43 RCW codifies constitutional double jeopardy principles: `Whenever a defendant shall be acquitted or convicted upon an indictment or information charging a crime consisting of different degrees, he cannot be proceeded against or tried for the same crime in another degree, nor for an attempt to commit such a crime, or any degree thereof.' RCW 10.43.050. A conviction or acquittal is a bar to another prosecution for that offense or any lesser or included offense. RCW 10.43.020. A final adjudication is the starting point. State v. Ahluwalia, 143 Wn.2d 527, 537, 22 P.3d 1254 (2001).
The State correctly contends the court's oral ruling was not final under State v. Collins, 112 Wn.2d 303, 305, 771 P.2d 350 (1989), which overruled the prior standard for determining the finality of rulings under State v. Dowling, 98 Wn.2d 542, 656 P.2d 497 (1983), where a trial court's ruling, as viewed, is final when `read conclusively into the record' without qualification. Collins, 112 Wn.2d at 305. The Collins Court instead reasoned that a trial court's oral ruling alone was inadequate to establish finality:
Individual trial judges' styles of ruling vary. Many judges will think out loud along the way to reaching the final result. It is only proper that this thinking process not have final or binding effect until formally incorporated into the findings, conclusions, and judgment.
Id. at 308.
In an attempt to eliminate the `guesswork' of the Dowling standard, Collins established a new rule requiring a formal, signed, written journal entry or final written court order to establish finality for double jeopardy purposes. Id. In applying the new rule, the Court found that an oral ruling dismissing a case was not final for double jeopardy purposes, because the judge `did not even approach signing a journal entry or issuing a formal signed order.' Id. at 308.
Here, Mr. Huckaba mistakenly argues the clerk's minute entry is the equivalent of a journal entry signed by a judge and equal in effect to a signed judgment and sentence filed with the court clerk. All that appears in this record is a clerk's minute entry unsigned by the trial court. No evidence showed the trial court even saw the clerk's minute entry, let alone formally adopted it with a signature. This falls short of a formal, signed journal entry or judgment and sentence. Because Mr. Huckaba's argument is premised on this incorrect assumed fact, it fails.
The State correctly argues the trial court's ruling was not a conviction. Double jeopardy bars retrial if three elements are met: (1) jeopardy previously attached; (2) jeopardy previously terminated; and (3) the defendant is again in jeopardy for the same offense. State v. Corrado, 81 Wn. App. 640, 645, 915 P.2d 1121 (1996). `The first two elements determine `former' jeopardy, which is a prerequisite to `double' jeopardy. When `former' jeopardy is assumed or established, the third element determines `double' jeopardy.' Id. While jeopardy attached in Mr. Huckaba's prosecution for first degree assault against Deputy Edelbrock, it did not terminate when the trial court orally reasoned its decision. Certainly, Mr. Huckaba was not able to appeal the court's oral ruling until entry of a formal judgment and sentence.
Further, Mr. Huckaba was not again placed in jeopardy by proceeding to judgment and sentence on the original charge. Double jeopardy principles protect a defendant from a second prosecution following conviction or acquittal, and multiple punishments for the same offense. State v. Hescock, 98 Wn. App. 600, 603-04, 989 P.2d 1251 (1999); see also State v. Padilla, 84 Wn. App. 523, 526, 928 P.2d 1141 (1997) (interpreting RCW 10.43.050 to bar `successive prosecutions for different degrees of the same crime'). The trial court's reconsideration of its oral ruling instigated by Mr. Huckaba resulted in the court concluding the evidence supported solely the inferior degree crime of second degree assault. This process does not implicate double jeopardy principles. In sum, the trial court did not err.
Although Mark Huckaba contends he was not given sufficient notice that he could be convicted of an inferior degree crime, this argument has been consistently rejected by Washington courts. See State v. Foster, 91 Wn.2d 466, 471-72, 589 P.2d 789 (1979); see also State v. Bandura, 85 Wn. App. 87, 94, 931 P.2d 174 (1997).
B. Search
The issue is whether, under the exigent circumstances rule, the court erred in denying Mark Huckaba's motion to suppress evidence of the firearms.
On review, we determine whether substantial evidence supports the trial court's findings of fact and, in turn, whether they support its conclusions of law. State v. Dempsey, 88 Wn. App. 918, 921, 947 P.2d 265 (1997). Unchallenged findings of fact are verities in this appeal. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 808, 828 P.2d 529 (1992).
Although the State argues the orchard where Mr. Huckaba was found was not within the curtilage of his home, we need not reach that question because even areas within a curtilage may be searched given exigent circumstances. Terrovona, 105 Wn.2d at 644. Terrovona enumerates six elements to aid in determining when an exigency exists:
(1) a grave offense, particularly a crime of violence, is involved; (2) the suspect is reasonably believed to be armed; (3) there is reasonably trustworthy information that the suspect is guilty; (4) there is strong reason to believe that the suspect is on the premises; (5) the suspect is likely to escape if not swiftly apprehended; and (6) the entry is made peaceably.
Id. Other exigencies include hot pursuit, fleeing suspect, danger to arresting officer or public, mobility or destruction of evidence, and mobility of a vehicle. Id.
The court found that the officers reasonably believed Mark Huckaba was armed; he had fled to the orchard on foot; the officers had a reasonable belief Mark Huckaba had committed a crime of violence against his father, based on Allen Huckaba's statements and injuries; it was likely Mark Huckaba would escape if not apprehended; Mark Huckaba had been injured; and the search was made peaceably. These factors are backed by the evidence and support the court's legal conclusion that exigent circumstances existed. See State v. Terrovona, 105 Wn.2d 632, 644, 716 P.2d 295 (1986).
In sum, the court did not err in denying Mark Huckaba's motion to suppress evidence of the firearms.
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.
Kato, C.J. and Schultheis, J., Concur.