No. 58740-4-I.The Court of Appeals of Washington, Division One.
November 13, 2007.
PER CURIAM.
Shyanne L. Rasmussen was found guilty of assault in the second degree by the Whatcom County Juvenile Court. She seeks reversal of her adjudication, arguing that the court’s conclusion that the beer bottle was a deadly weapon was not supported by sufficient evidence. She also seeks reversal because the court failed to enter written findings of fact and conclusions of law. Because the record below is clear and comprehensive and supports the adjudication of guilt, we affirm the juvenile court’s adjudication, but remand for entry of written findings and conclusions.
Facts
K.S. walked, uninvited, into Hans Abbott’s apartment, where Rasmussen, Abbott, and Paul and Parker Kulcheski were hanging out. For various reasons, Abbott and Rasmussen did not want K.S. to be there. Rasmussen became angry and told K.S. to leave. When K.S. refused to leave, Rasmussen threatened her. Despite this, K.S. continued to approach Rasmussen. When K.S. approached to within about one foot of Rasmussen, Rasmussen struck K.S. on the left side of her head with a beer bottle three or four times. K.S. was treated for injuries in an emergency room, receiving sutures, pain medications, and a CAT scan.
Sufficiency of Evidence
When reviewing a claim of insufficient evidence, we must determine, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of second degree assault beyond a reasonable doubt.[1]
We draw all reasonable inferences from the evidence in the prosecution’s favor and interpret the evidence most strongly against the defendant.[2]
Circumstantial evidence is as probative as direct evidence.[3]
RCW 9A.36.021 states, in pertinent part, that “[a] person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree . . . [a]ssaults another with a deadly weapon.” A “deadly weapon” includes any “device, instrument, article, or substance . . . which, under the circumstances in which it is used, . . . is readily capable of causing death or substantial bodily harm.”[4] Circumstances include “`the intent and present ability of the user, the degree of force, the part of the body to which it was applied and the physical injuries inflicted.'”[5] “Substantial bodily harm” is “bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part.”[6]
Rasmussen argues that the juvenile court’s conclusion that the beer bottle, as it was used in this assault, was readily capable of causing death or substantial bodily harm was not supported by a sufficiency of evidence. However, several witnesses testified that Rasmussen used the beer bottle to hit K.S. on the left side of her head, above the ear. Witnesses testified that the force used was “hard” or “very hard” and that she swung her arm from behind her head. She hit K.S. more than once, and one of the blows was sufficient to knock K.S. to the ground. Abbott testified that he heard a “thud” when Rasmussen hit K.S. with the bottle. Although no written findings of fact and conclusions of law were entered, the juvenile court stated the reasons for its conclusion on the record:
Substantial bodily harm again is something where someone can be disfigured where there’s a temporary but substantial loss or impairment of the function of some bodily part or organ, or finally which causes a fracture of a bodily part. Testimony that I have heard is that Shyanne held a beer bottle by its neck, assaulted [K.S.] with it at least one of the times by bringing the bottle back behind her head. Even Shyanne’s own boyfriend testified that . . . one of the hits with the bottle was described as a thud. I am convinced that hitting someone in the head with a beer bottle in the way that happened that day was readily capable of causing substantial bodily harm. A person’s nose could be broken. A person’s teeth could be knocked out. The bones around a person’s eyes could have been broken. As used that day, I am convinced beyond a reasonable doubt that that beer bottle was a deadly weapon.
The evidence and inferences derived therefrom, viewed in the light most favorable to the State, supports the court’s conclusion that the beer bottle was readily capable of causing substantial bodily harm under these circumstances.
Findings and Conclusions
Rasmussen contends that her conviction should be reversed and dismissed because the trial court failed to enter written findings of fact and conclusions of law, in violation of Juvenile Court Rule (JuCR) 7.11. Under JuCR 7.11(c) and (d), a juvenile court must enter written findings and conclusions within 21 days of the notice of appeal in a juvenile case. The notice of appeal in this case was entered on August 22, 2006. Although more than 14 months have passed since that date, no written findings of fact or conclusions of law have been entered in this case.
Previously, this court has made a distinction between cases involving a delayed entry of findings and cases with a complete absence of formal findings.[7] However, in State v. Head, [8] our Supreme Court held that the failure to enter written findings of fact and conclusions of law requires remand for entry of written findings and conclusions [9] Head
recognized that reversal may be appropriate where a defendant can show actual prejudice resulting from the absence of findings and conclusions.[10] Prejudice resulting from the tailoring of findings may be shown only after remand and the entry of findings.[11] The court will not infer prejudice from delay in entry of writing findings and conclusions; rather, appellant must establish actual prejudice.[12]
Although JuCR 7.11 is mandatory, the error here is harmless because the oral findings regarding the court’s conclusion that the beer bottle was a deadly weapon were “so clear and comprehensive that written findings would be a mere formality.”[13] Because Rasmussen has not established actual prejudice from the absence of written findings and conclusions, and because the record supports the juvenile court’s finding of guilt as explained above, we affirm and remand for entry of written findings of fact and conclusions of law based on the evidence already taken.
Finally, although no prejudice resulted against the appellant, the State has caused additional work on the part of the appellant’s counsel and on the part of this court by disregarding the mandatory court rule requiring entry of written findings of fact and conclusions of law.[14]
Therefore, we refer this matter to the court’s commissioner with instructions that the Whatcom County Prosecutor be directed to show cause why sanctions should not be imposed for failure to timely comply with JrCR 7.11(d).
AFFIRMED and REMANDED.
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