No. 34247-2-IIThe Court of Appeals of Washington, Division Two.
Filed: February 7, 2007 UNPUBLISHED OPINION
Appeal from Clark Superior Court. Docket No: 05-8-00938-7. Judgment or order under review. Date filed: 12/21/2005. Judge signing: Honorable Diane M Woolard.
Counsel for Appellant(s), Anne Mowry Cruser, Law Office of Anne Cruser, Vancouver, WA.
Counsel for Respondent(s), Julie Christine Carmena, Attorney at Law, Vancouver, WA.
QUINN-BRINTNALL, J.
J.J.H. appeals his adjudication of second degree assault.[1] He claims that the record does not support the juvenile court’s findings of fact, that these findings derived from his co-defendants’ trial, not his, and that the court misapplied the lawful use of force defense. Because the record does not support the findings of fact, we remand for the juvenile court to make the necessary findings.
Facts
At about 10:00 p.m., on July 19, 2005, J.J.H. and Kelly Fich were walking along Third Street in Camas, Washington, accompanied by J.T.C. and C.E.M., who were on bicycles. Their plan to go to the McDonald’s Restaurant was interrupted when Jason Pumphrey swerved his car at J.T.C. and yelled at him to get out of the road. When J.T.C. “flipped him off,” Pumphrey turned his car around, cut in front of the group into a Schuck’s parking lot, jumped out of his car, and “got into [J.T.C.’s] face.” Report of Proceedings (RP) at 87.
At this point, versions of the story vary. According to Fich, Pumphrey then pushed J.T.C.and J.T.C. punched Pumphrey. J.J.H. tried to intervene, but Pumphrey got him in a headlock. All three juveniles then began punching Pumphrey. At one point, J.J.H. threw Pumphrey to the ground where he curled up into a ball. C.E.M. then kicked Pumphrey in the face. After the altercation, J.T.C. and C.E.M. left on their bicycles and J.J.H. walked over to help Pumphrey, but Pumphrey told him to get away. J.J.H. and Fich then left.
According to Pumphrey, the three juveniles jumped him, surrounded him, and repeatedly punched him in the head from all directions. He described J.J.H. as the main aggressor as he led the group and got them to jump him. He could not remember striking anyone but did recall getting J.J.H. in a headlock and trying to punch him. He said that sometime during the incident, he was knocked unconscious and when he came to, he was in excruciating pain and everyone was gone. He described the incident as trying to defend himself from his attackers.
According to J.J.H., during the yelling and pushing between Pumphrey and J.T.C., he stepped in between them and told Pumphrey, “it ain’t going to happen ’cause he’s only 14.” RP at 137. Pumphrey then grabbed him by the throat. J.J.H. responded by punching Pumphrey, who then fell backwards but came up behind J.J.H. and got him in a headlock. J.J.H. explained that he elbowed Pumphrey to try to get free and that Pumphrey punched him in the face four or five times. He explained that he then threw himself backwards to try to get loose and, in doing so, fell back onto Pumphrey as Pumphrey was lying on the ground.
Dr. Chris Jackson treated Pumphrey. He found numerous bruises and contusions, fractured ribs, a fractured vertebra, and a fractured cheekbone. He explained that it would take considerable force to cause the fractured ribs and vertebra. He also explained that one impact could not cause all the injuries he observed.
The State charged J.J.H. with second degree assault. The juvenile court found him guilty and imposed a standard-range disposition. The court entered the following findings of fact and conclusions of law:
Findings of Fact
1 On July 19, 2005, victim Jason Pumphrey entered the Schuck’s parking lot in Camas, Washington[.] 2 [J.T.C.], dob 09-16-88, [C.E.M.], dob 01-22-89, [J.J.H.], dob 5/15/88, and Kelley [sic] Fich were at or near the Schuck’s parking lot[.] 3 A minor confrontation occurred involving Mr[.] Pumphrey, [J.J.H.],[C.E.M.] and [J.T.C.], which ended without injury to any of the participants[.] 4 [C.E.M.] re-ignited the altercation by throwing a bottle at Mr. Pumphrey[.] After [C.E.M.] threw the bottle, fighting began with [J.J.H.], [C.E.M.] and[J.T.C.] surrounding Mr[.] Pumphrey[.] At this point, the altercation became three-on-one with [J.J.H.], [C.E.M.] and [J.T.C.] acting in concert and as accomplices to each other in their assault against the victim[.] 5 When the fighting resumed and with [J.J.H.], [J.T.C.], and [C.E.M.] surrounding Mr[.] Pumphrey, [J.J.H.] and [J.T.C.] intentionally struck Mr[.] Pumphrey[.] Mr[.] Pumphrey was also kicked in the ribs[.] In addition, [J.J.H.] was able to pick up and throw Mr[.] Pumphrey to the ground and while he lay there immobile, [C.E.M.] walked up to him and kicked him two times in the head and face[.] 6 Mr[.] Pumphrey sustained injuries which indicate that substantial force was used upon him and that force resulted in substantial bodily injury including a fractured cheekbone (a fracture of the left zygomatic arch), a fracture of the T-11 vertebrae in his back and fractures to two of his ribs[.] Mr[.]Pumphrey also suffered contusions and abrasions to his elbows and knees, a concussion, and an injury to the back of his head[.] Mr[.] Pumphrey was required to spend several days in the hospital[.] 7 Neither [J.T.C.] nor [C.E.M.] sustained any injuries[.] [J.J.H.] may have received minor redness to his face or neck[.] [C.E.M.], [J.T.C.], and [J.J.H.] were able to walk away form [sic] the incident and did not seek medical attention[.] 8 At no point during or after the incident did [J.T.C.], [C.E.M.] or [J.J.H.] contact Law Enforcement[.] 9 This Court finds [J.T.C.], [C.E.M.], and [J.J.H.] intentionally assaulted Mr[.] Pumphr[ey], and beyond a reasonable doubt that the force they used was excessive and not done for the purpose of self defense and/or the defense of others[.]
Conclusions of Law
1 That the court has jurisdiction over the parties hereto and the subject matter of the action[.] 2 All of the above facts have been proven by the State beyond a reasonable doubt[.] 3 On July 19, 2005, in Clark County, Washington, [J.J.H.] with the assistance of [J.T.C.] and [C.E.M.] did intentionally assault and thereby recklessly inflict substantial bodily harm upon Jason Pumphrey and [is] guilty of the crime of Assault in the Second Degree, as charged in Count 1[.] 4 [J.T.C.], [C.E.M.], and [J.J.H.] did not act in self-defense or defense of others[.] The force used by [J.T.C.], [C.E.M.], and [J.J.H.] was excessive force[.] 5 [J.T.C.], [C.E.M.], and [J.J.H.] acted as accomplices in their assault upon Mr[.] Pumphrey[.]
Suppl. Clerk’s Papers at 36-38.
ANALYSIS
Findings of Fact and Conclusions of Law
J.J.H. challenges findings of fact one, three, four, five, seven, and nine. He also challenges conclusions of law two, three, and four.
We have carefully read the record and agree with defense counsel that these findings, at least in part, do not appear to be based on the testimony at his trial. Rather, it appears more consistent with the linked appeal, No. 34080-1-II, from J.T.C. and C.E.M.’s joint trial. The key difference between the two trials was that J.T.C. and C.E.M. testified at their trial, but J.J.H. did not. He only testified at his own trial. The unsupported portions of these findings appear to be based on either J.T.C.’s or C.E.M.’s testimony.
We agree that finding one omits material facts. The evidence produced at trial was uncontroverted that Pumphrey swerved his car at J.T.C., yelled for him to get out of the road, and then turned into the Schuck’s parking lot. What was controverted was whether Pumphrey turned around at the intersection before entering the Schuck’s lot. The State explains that the juvenile court omitted these facts because they were controverted. We refuse to accept such an explanation. The purpose of having a trial is to resolve factual disputes. The trial court cannot simply ignore material facts because it is uncertain what actually happened. In any case, these facts were material to J.J.H.’s defense and should have been included in the findings.
We also agree that the record does not support finding three. The record does not show a series of separate incidents. Rather it shows one continuous altercation that ended after Pumphrey suffered substantial injuries. There was no testimony that the yelling incident between J.T.C. and Pumphrey concluded. Rather, the testimony was that Pumphrey pushed J.T.C., J.T.C. punched back, and J.J.H. then got into the middle of it. And then all three juveniles got involved.
Finding four is incorrect in that the record does not show that the altercation re-ignited after C.E.M. threw the bottle. J.J.H. testified that after he intervened between Pumphrey and J.T.C., Pumphrey grabbed him by the throat, he struck Pumphrey, they fell backwards, and, at that point, he saw C.E.M. throw the bottle. Pumphrey testified that he saw the bottle fly by him when all three juveniles were approaching him as a group. Nothing in the record shows that throwing the bottle re-ignited the fight.
The record does support finding five, except that there was no testimony that C.E.M. kicked Pumphrey in the ribs. Fich testified that she saw him kick Pumphrey in the face twice while Pumphrey was immobile on the ground. Pumphrey did not recall the incident because he claims he was unconscious at the time and J.J.H. testified that he did not see C.E.M. kick Pumphrey because he was walking away at the time. And while J.J.H. testified that he fell on Pumphrey, Fich testified that J.J.H. picked Pumphrey up and threw him to the ground.
The record supports finding seven as well. The testimony established that C.E.M. was not injured, J.T.C. may have cut his lip, and that J.J.H. had redness around his neck, a split lip, and other soreness. Yet all three walked or rode away from the incident on their own accord and none sought medical attention. It is a fair characterization of the testimony that only Pumphrey was injured.
J.J.H. argues that finding nine is improper because the juvenile court based this finding on the evidence from J.T.C. and C.E.M.’s trial and thus violated his rights of due process and confrontation. He similarly challenges conclusions of law two, three, and four.
Because of these deficiencies in the juvenile court’s findings, we are unable to address the merits of J.J.H.’s claim that his use of force was lawful. In State v. Alvarez, 128 Wn.2d 1, 15-20, 904 P.2d 754 (1995), the court considered the proper remedy when the juvenile court makes inadequate findings of fact. After explaining that the juvenile court must make a finding on every ultimate fact as JuCR 7.11(d) requires and that the record contained sufficient evidence to uphold the guilty verdict, the court remanded for the juvenile court to revise its findings. Alvarez, 128 Wn.2d at 19. Here, the juvenile court appears to have used the findings of fact from the co-defendants’ trial rather than relying on the record produced in this trial. As such, the record does not support the findings of fact noted above and thus revision of those findings is necessary. Accordingly, we remand this case to the juvenile court to review the record and set out its findings of ultimate fact and the evidence supporting them. The court should then remit those findings to this court so that we may consider the merit of J.J.H.’s appeal.
We remand.
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.
BRIDGEWATER, P.J. and ARMSTRONG, J. concur
Page 1