No. 20934-2-IIIThe Court of Appeals of Washington, Division Three.
Filed: December 10, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County, No. 001025964, Hon. Robert Austin, February 22, 2002, Judgment or order under review.
Counsel for Appellant(s), David M. Miller, Ste 868, 421 W Riverside, Spokane, WA 99201.
Counsel for Respondent(s), Kevin M. Korsmo, Spokane County Prosecutor’s Office, W. 1100 Mallon, Spokane, WA 99260.
Andrew J. Metts Iii, Deputy Prosecuting Attorney, 1100 W Mallon Ave, Spokane, WA 99260-0270.
BROWN, C.J.
Joseph Gariepy, convicted of first degree burglary, second degree theft and second degree malicious mischief, mainly focuses on two issues: (1) whether sufficient evidence exists to support his identity; and (2) whether the finding he was armed with a dangerous weapon, as opposed to a deadly weapon, is sufficient to support a conviction for first degree burglary. The evidence bearing on his identity is sufficient, but the weapon finding is not. Accordingly, we affirm the convictions of second degree malicious mischief and second degree theft, but reverse the first degree burglary conviction and remand for entry of conviction and sentencing for second degree burglary.
FACTS
Around 5:00 on the morning of November 9, 2000, Janice Liane looked out her back door and saw a person standing next to her neighbor’s garage. Thinking something was suspicious, she continued to watch, but the man disappeared. Shortly thereafter, Ms. Liane saw the same man walking down the alley with bundle in his arms, so she called 911. As she was talking to the dispatcher, she saw a second man approaching the garage. Ms. Liane described the first man as slender, wearing a heavy black coat and dark clothing. The second man was shorter with longer hair. The shorter man ducked inside the garage and was still inside when the police arrived.
Michelle Elliott testified her detached garage was burglarized on November 9. When she came outside she found the garage door open. Inside, her car window had been shattered and the garage door opener had been dismantled. A previously locked side door to the garage was also open. Several items from the car and garage had been stuffed into a garbage can outside.
Officers Tracy Douglas and Ronald Tilley responded to the burglary in progress dispatch. As they drove into the area, Officer Douglas observed a person standing on a nearby sidewalk, but the person left as she came down the alley. When she reached the garage, Officer Douglas found the door open and the light on. Once inside, Officer Douglas shined her flashlight on a man hunched over with a box in his hands. When Officer Douglas identified herself, the man gave her a surprised look, dropped the box, and ran.
Officer Tilley chased the suspect as he ran from the garage in a northwest direction. Although Officer Tilley lost sight of the suspect for approximately three minutes, he was able to follow his footprints in the newly-fallen snow. The footprints led Officer Tilley to Mr. Gariepy, who was found crouched down by the side of a house approximately two blocks from the burglarized garage. When Officer Tilley identified himself and ordered Mr. Gariepy to show his hands, Mr. Gariepy stood up, put his hands in his coat pockets and began to walk away. After drawing his weapon and repeating the command to stop several times, Mr. Gariepy eventually showed his hands and got on the ground.
A search incident to arrest, disclosed a four-inch, double-sided, sheathed dagger in Mr. Gariepy’s front coat pocket. There was no evidence that Mr. Gariepy had displayed the dagger or threatened anyone with it during the burglary or attempted escape. Mr. Gariepy was wearing a dark jacket with long, unkempt brown hair. The police did not find burglary tools or stolen items near or upon Mr. Gariepy. Nor was fingerprint evidence taken from the scene or items recovered. Several burglary tools were recovered from a yard south of the garage.
At Mr. Gariepy’s bench trial, Officer Douglas acknowledged she had originally described the man in the garage as having red hair. Nevertheless, she was positive Mr. Gariepy was the person inside the garage. After finding Mr. Gariepy was the person who committed these crimes, the court looked to the definition of a dangerous weapon under RCW 9.41.270 to conclude that Mr. Gariepy’s possession of a knife during the commission of these crimes constituted possession of a dangerous weapon and met the elements of first degree burglary.
At sentencing, although the State recommended a mitigated exceptional sentence for Mr. Gariepy’s cooperation given on unrelated matters, it argued for a 20-month reduction below the 87-month bottom of the standard range for the first degree burglary conviction. Mr. Gariepy sought a 40-month reduction. The trial court ordered 57 months, a 30-month reduction. The other sentences were ordered to be concurrently served with the burglary conviction.
ANALYSIS
A. Evidence Sufficiency
Mr. Gariepy challenges the sufficiency of evidence used to convict him of second degree theft and second degree malicious mischief. Specifically, he challenges the sufficiency of evidence used to identify him as the perpetrator. The scope of appellate review following a bench trial is limited to determining whether substantial evidence supports the challenged findings, and whether the findings support the trial court’s conclusions of law. State v. Alvarez, 105 Wn. App. 215, 220, 19 P.3d 485 (2001).
Evidence sufficiency challenges admit the truth of the State’s evidence and all reasonable inferences. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The test is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979)). Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). `In determining whether the necessary quantum of proof exists, the reviewing court need not be convinced of the defendant’s guilt beyond a reasonable doubt, but only that substantial evidence supports the State’s case.’ State v. Dejarlais, 88 Wn. App. 297, 305, 944 P.2d 1110
(1997). An appellate court will not weigh evidence or second guess a trial court’s judgment of the evidence. State v. Mewes, 84 Wn. App. 620, 622, 929 P.2d 505 (1997).
Here, Mr. Gariepy contends insufficient evidence exists to show he was the person who committed these crimes. Mr. Gariepy’s argument fails to consider the circumstantial evidence. Officer Douglas identified Mr. Gariepy as the person inside the garage with a box in his hands. This is substantial evidence that Mr. Gariepy was the person who damaged the garage door and car window, and removed the items from the garage. Mr. Gariepy argues that witnesses described seeing two people near the garage, and there is no evidence that he was the one who damaged the property or removed the equipment from the garage. He maintains that it could just as well have been the other person. However, Mr. Gariepy’s presence inside the garage with a box in his hands is sufficient evidence for a fact finder to infer that he was the one who damaged the garage door and car window and the one who placed the equipment outside the garage.
Mr. Gariepy’s argument also fails to consider his culpability as an accomplice. It is clear that Mr. Gariepy was involved in the crimes and acting as either a principal or accomplice. Regardless of the level of his participation or the acts he actually performed, his culpability is the same. State v. McDonald, 138 Wn.2d 680, 688, 981 P.2d 443 (1999). The State does not have to charge Mr. Gariepy as an accomplice. State v. Rodriguez, 78 Wn. App. 769, 773-774, 898 P.2d 871 (1995) (an information that charges an accused as a principal adequately apprises him or her of potential accomplice liability). Nor does the fact-finder have to determine whether Mr. Gariepy’s culpability is that of a principal or an accomplice. McDonald, 138 Wn.2d at 688.
We conclude the evidence was sufficient to support the trial court’s finding that Mr. Gariepy was the person who damaged the property and took the equipment out of the garage. We note Mr. Gariepy’s eighth assignment of error challenges the format of the trial court’s findings and conclusions. Although CrR 6.1(d) does provide for separately stated findings and conclusions, Mr. Gariepy acknowledges the findings and conclusions are sufficient for this court to consider the issues he raises. We consider the issue waived. See Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) (passing treatment of an issue in an appellate brief is insufficient to merit judicial consideration).
B. Knife as Deadly Weapon in Burglary
Mr. Gariepy assigns error to the trial court’s finding he was armed with a dangerous weapon during the commission of these crimes. The finding that Mr. Gariepy was armed with a dangerous weapon, as defined by RCW 9.41.270, is supported by substantial evidence, and therefore a verity on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). However as explained below, in order to elevate this burglary to first degree burglary, certain technical requirements must be met.
We review de novo the trial court’s conclusions of law to determine whether they are supported by the findings of fact. State v. Lemus, 103 Wn. App. 94, 99, 11 P.3d 326 (2000). When a criminal case is tried to the bench, the trial court must enter findings of fact and conclusions of law. CrR 6.1(d). And while the court need not enter findings as to all of the evidence presented, the findings must address the ultimate facts and material issues. Mewes, 84 Wn. App. at 622. In essence, the court must enter findings related to each element of the crime. Alvarez, 105 Wn. App. at 220.
Second degree burglary is elevated to first degree burglary if the defendant is armed with a deadly weapon or assaults another during the crime or flight. RCW 9A.52.020. Here, there is no question that Mr. Gariepy was armed with a knife described as a four-inch dagger. The question is whether that knife constituted a deadly weapon.
The State concedes the trial court applied the wrong statute to define a deadly weapon. The trial court looked to RCW 9.41.270, which defines a dangerous weapon. The correct definition of a deadly weapon is found in RCW 9A.04.110(6). State v. Gotcher, 52 Wn. App. 350, 354, 759 P.2d 1216
(1988). Under this statute a “Deadly weapon’ means any explosive or loaded or unloaded firearm, and shall include any other weapon. . . . which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.’ RCW 9A.04.110(6). Accordingly, the State must prove the knife he was carrying was capable of causing death or substantial bodily harm under the circumstances in which it was used, attempted to be used, or threatened to be used. Gotcher, 52 Wn. App. at 354.
As Mr. Gariepy points out, the trial court did not find that he was armed with a deadly weapon. The State does not respond to the lack of findings on this essential element. The absence of findings on an essential element raises a presumption that the State failed to meet its burden of proof. See State v. Armenta, 134 Wn.2d 1, 14, 948 P.2d 1280
(1997).
The State argues the evidence here is similar to the evidence found sufficient in Gotcher. In Gotcher, the defendant was caught burglarizing a residence. When he was arrested, police found a partially opened switchblade knife with a four and a half inch blade in his pocket. In remanding the case for a new trial, the court noted that the evidence was sufficient to raise a prima facie case of first degree burglary. Gotcher, 52 Wn. App. at 356-57. The officer in Gotcher testified the defendant defied orders to show his hands by placing one hand in his pocket and fumbling with something during the arrest. The defendant continued to disregard several orders to place his hands in view and a police dog was used to subdue him. A search revealed a partially open, four and one-half inch switchblade with the safety off in Mr. Gotcher’s pocket. The Court held that the evidence, when viewed in a light most favorable to the State, was sufficient for a jury to infer the defendant was attempting to use the knife during the crime or arrest. Id. at 356 n. 4.
Here, the knife found in Mr. Gariepy’s pocket was sheathed. Although Mr. Gariepy put his hands in his pockets as he attempted to walk away from the officer, no evidence shows he used, attempted to use or threatened to use the knife. The mere possession of a knife does not satisfy the statutory definition of a deadly weapon. Id. at 354. This record supports a conviction for second degree burglary.
In any event, the trial court did not enter findings that Mr. Gariepy was armed with a deadly weapon or that he manifested an intent to use the knife during the crime. Id. Instead, the court found Mr. Gariepy was armed with a dangerous weapon. This finding does not meet the statutory element for first degree burglary. Remand is appropriate for entry of a second degree burglary conviction and then resentencing, regardless of the original exceptional sentence granted to Mr. Gariepy.
CONCLUSION
We affirm the convictions of second degree malicious mischief and second degree theft. We reverse the first degree burglary conviction and remand for further proceedings consistent with this opinion. 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, A.C.J. and Kurtz, J.: Concur