STATE v. DOUGHERTY, 25717-3-II (Wash.App. 9-21-2001)

No. 25717-3-II.The Court of Appeals of Washington, Division Two.
Filed: September 21, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Lewis County, No. 99-8-00436-1, Hon. Tracy L. Mitchell, March 6, 2000, Judgment or order under review.

Counsel for Appellant(s), Thomas E. Doyle, Attorney At Law, P.O. Box 510, Hansville, WA 98340-0510.

Counsel for Respondent(s), J. A. Toynbee, Lewis Co. Deputy Pros. Atty., M/S Pr001, 360 N.W. North St, Chehalis, WA 98532-1900.

DAVID H. ARMSTRONG, C.J.

Sonya Ann Dougherty appeals from an adjudication of second degree robbery. She claims the juvenile court’s findings of fact fail to state a necessary ultimate elemental fact that she intended to steal. Because the juvenile court did not make an explicit finding of intent to steal, and because sufficient evidence supports the adjudication, we affirm the disposition but remand for revision of the findings of fact.

Facts
The trial court found Dougherty guilty of one count of second-degree robbery based on the following unchallenged findings of fact and conclusions of law:[1]

II. FINDINGS OF FACT

2.1 The incident giving rise to the offense charged occurred on or about November 20, 1999, in Lewis County, State of Washington.
2.2 On that date, the respondent was in the old Seafirst parking lot on Pearl Street in Centralia, Washington, with Robert Alexander, William Brown, Rebecca Massingham, Michelle Rhodes, and Leon Carpenter.
2.3 While there, the respondent spotted Treston Zimmerman and Brandon Campi riding by on a bicycle. She recognized Treston Zimmerman as a person she believed to have taken money from her, and stated that to Robert Alexander and William Brown.
2.4 Robert Alexander and William Brown chased Treston Zimmerman and Brandon Campi down Pearl Street for approximately one block but did not catch up to them. They then returned to their parked cars at the Seafirst parking lot.
2.5 The respondent consistently repeated that Treston Zimmerman had `ripped her off’ for about $20.00.
2.6 Most of the people that were with the respondent had been drinking alcohol. The respondents [sic] repeated statements about Treston Zimmerman incited the group to take action against Treston Zimmerman.
2.7 Robert Alexander was the driver of the car in which the respondent was the passenger. The people in the car included the respondent, and William Brown (in the back seat), and Robert Alexander and Michelle Rhodes (in the front seat).
2.8 Robert Alexander stated, `Let’s go get them.’ The group got into Mr. Alexander’s car and chased down Treston Zimmerman and Brandon Campi.
2.9 The respondent provided the sole reason for chasing Treston Zimmerman.
2.10 As they chased Treston Zimmerman and Brandon Campi, the respondent kept stating that Treston Zimmerman owed her money and the people in the car became loud and rowdy.
2.11 Robert Alexander drove down Pearl Street, until he saw Treston Zimmerman and Brandon Campi near the car wash at the corner of Pearl and Cherry Streets. He pulled his car in front of them, blocking their path.
2.12 Robert Alexander stepped out of the car and confronted Treston Zimmerman. The respondent and William Brown also got out of the car.
2.13 Joining the people from Robert Alexander’s car were Leon Carpenter, Rebecca Massingham, and Jeffrey Yeager, who had also been at the Seafirst parking lot, but who drove to the car wash in a separate car.
2.14 Robert Alexander removed Treston Zimmerman’s hat, dumped beer on Treston Zimmerman’s head, circled him, and threatened bodily harm to him, stating, `How many times am I going to have to kick your ass.’
2.15 One of the other males in the party kept stating, `Pop the tire,’ indicating the tire of the bicycle upon which Treston Zimmerman and Brandon Campi were riding. Someone in the respondent’s group popped the balloon that Treston Zimmerman had with him.
2.16 Robert Alexander and Leon Carpenter circled around Treston Zimmerman while the respondent said again and again that Treston had stolen $20 from her.
2.17 Leon Carpenter physically removed a bracelet from Treston’s arm, and either he or Robert Alexander obtained the tech vest and the hat that Treston was wearing from Treston’s person.
2.18 The tech vest, bracelet, and hat were taken from Treston Zimmerman against his will, by use of the threats.
2.19 The respondent was given the tech vest, which she put on. She was also given the hat by Robert Alexander. Treston Zimmerman asked for his hat back, and before getting back into the car, the respondent gave it to him.

Supplemental Clerk’s Papers at 2-5.

The court made the following pertinent conclusions of law:

CONCLUSIONS OF LAW

. . . .
3.3 Sonya Ann Dougherty acted as an accomplice in unlawfully taking personal property from the person of another against his will by the use of immediate force or the threatened use of immediate force.
3.4 The tech vest, bracelet, and hat were taken from Treston Zimmerman against his will by the use of immediate force or the threatened use of force by Robert Alexander and Leon Carpenter.
3.5 Sonya Ann Doughtery was the accomplice of another in that she, with knowledge that it would promote or facilitate the commission of the crime, she solicited, encouraged, and requested another to commit the crime of Robbery in the Second Degree by encouraging and persuading Robert Alexander to follow Treston Zimmerman from the Seafirst parking lot and to confront him in front of the car wash. She was not a mere spectator at the car wash, but was actively involved in receiving the items taken from Treston.
3.6 Sonya Ann Dougherty committed the offense of Robbery in the Second Degree beyond a reasonable doubt, in violation of RCW 9A.56.210, and judgment and disposition should be entered in conformance therewith.

Supplemental Clerk’s Papers at 5-6.

Analysis
The court found Dougherty guilty of second-degree robbery. `A person is guilty of robbery in the second degree if he commits robbery.’ RCW 9A.56.210.

The Legislature defined robbery:

A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.

RCW 9A.56.190. In addition to these statutory elements, an intent to steal is also an essential element of robbery. State v. Hicks, 102 Wn.2d 182, 683 P.2d 186 (1984); State v. Self, 42 Wn. App. 654,657, 713 P.2d 142
(1986).

Dougherty’s claim on appeal is that the trial court did not make an ultimate finding that she intended to steal even though JuCR 7.11(b) required the court to make such a finding. JuCR 7.11(d) provides:

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.

(Emphasis added.) The State responds that the trial court’s findings are sufficient because the court concluded that Dougherty `acted as an accomplice in unlawfully taking personal property from the person of another against his will . . .’ and that she `was not a mere spectator at the car wash, but was actively involved in receiving the items taken from [Treston].’ Resp’t br. at 5-6. We disagree.

A trial court need not make a finding for all evidence introduced. Findings need only address all ultimate facts and material issues. Wold v. Wold, 7 Wn. App. 872, 875, 503 P.2d 118 (1972). Material facts are those which carry influence or effect, or are necessary, and must be found, or are essential to the conclusions. Id. at 875. `Ultimate facts are the essential and determining facts upon which the conclusion rests and without which the judgment would lack support in an essential particular.’ Id. at 875. They must be found in order for the court to apply the law. State v. Mewes, 84 Wn. App. 620, 622, 929 P.2d 505
(1997). Mewes is particularly instructive because there the juvenile court made no ultimate findings of fact. The reviewing court set out the elements of the offense, first degree kidnapping, and then explained that the juvenile court needed to enter an ultimate finding on each element. Here, the juvenile court’s findings of fact satisfy all the statutory elements of second degree robbery but there is no finding on whether Dougherty or her accomplices intended to steal.

Similarly in State v. Alvarez, 128 Wn.2d 1, 15, 904 P.2d 754 (1995), the juvenile court failed to enter a finding of fact as to an essential element of the offense. The Court stated:

It is apparent in this case that the findings of fact and conclusions of law do not meet the requirements of JuCR 7.11(d). They did not in specific words state that Appellant Alvarez by words or conduct made threats which placed his victims in `reasonable fear that the threat [would] be carried out,’ a necessary element of the offense of harassment as charged in the information.

Alvarez, 128 Wn.2d at 17. The Court did not, however, reverse Alvarez’s disposition. Instead it remanded for entry of a finding of ultimate fact.

The Court explained:

In this case, the State was still required to prove each element of the charged offenses beyond a reasonable doubt. It is apparent from the record that the trial court’s not entering findings of ultimate facts was not because the State had not met its burden of proof. It was instead simply the choice of words used in the findings of fact. Appellant Alvarez was found `guilty’ in the King County Juvenile Court. For a finding of `guilty’ there must be sufficient evidence upon every element of the charged offense. The State met its burden of proof. The Court of Appeals, Division I, was correct in remanding case one to the trial court for revision of findings to adequately state ultimate facts and in affirming Appellant’s conviction of harassment because there was sufficient evidence in the record for a rational trier of fact to find the necessary element of fear.

Alvarez, 128 Wn.2d at 19.

Similarly here, the prosecution was not relieved of its burden of proof. It still had to prove that Dougherty committed a robbery. There is ample evidence in the record and, the findings reflect that evidence, that Dougherty sought to retaliate against Zimmerman for `ripping her off.’ She incited and encouraged her cohorts to assist her in that revenge and she took Zimmerman’s jacket, as her own, knowing that it was not hers. This evidence is sufficient to show that she intended to steal from Zimmerman. See Hicks, 102 Wn.2d at 182 (discussing when good faith claim of title is a defense to robbery).

We affirm the disposition, but remand for revision of the findings of fact.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: SEINFELD, J., BRIDGEWATER, J.