STATE v. SUGGS, 53659-1-I (Wash.App. 1-10-2005)

No. 53659-1-IThe Court of Appeals of Washington, Division One.
Filed: January 10, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Snohomish County. Docket No: 03-8-01329-3. Judgment or order under review. Date filed: 01/05/2004. Judge signing: Hon. Gerald L Knight.

Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Nancy P Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.

Counsel for Respondent(s), Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.

Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.

PER CURIAM.

Mario Suggs challenges his juvenile adjudication for residential burglary. He contends that because the written bench trial findings failed to state that he illegally entered a residence we must presume that the court found insufficient proof of such entry. He alternatively argues that the evidence was insufficient to support such a finding. Considering the entire record, we decline to employ the presumption to the ultimate facts in issue here. And because the circumstantial evidence was sufficient to support a finding of illegal entry, the proper remedy for the inadequate findings is remand to the trial court.

FACTS
Robert Hacker and his wife left their house at approximately 11:00 a.m. to run errands. They locked the doors to the house, but as it was a hot summer day, left one bedroom window slightly ajar. As they left, Hacker noticed a young man in their neighborhood who he did not recognize. The Hackers were gone for 30 to 45 minutes. When they returned, Hacker saw a gate to their backyard had been opened. He parked his car in the garage, which required opening an automatic garage door, a device loud enough to be heard in the bedroom. Hacker immediately checked on the gate and found the young man they had seen earlier, now leaving the backyard through the gate. Hacker asked what he was doing. The young man, later identified as Mario Suggs, said he had been looking for a shortcut to a shopping center. The Hackers entered their house and found the screen had been removed from the bedroom window and the bedroom had been rummaged through. Drawers and bedding were disarranged and a hunting knife and a small amount of change had been taken from the bedroom.[1]

The Hackers found the knife outside under their motor home, which was parked along the route between the window where the burglar entered and the gate where they encountered Suggs. They called police, who located Suggs within a mile of the Hacker residence. An officer asked Suggs where he had been. Suggs said if the officer wanted to know if he had been cutting through people’s backyards, he had been doing so. The officer arrested Suggs and found he was carrying black leather gloves and a small amount of pocket change. After advice of his rights, Suggs told the officer he had cut through the Hacker’s backyard and gone onto their deck, but had not gone near the house. When, after being booked, the officer told Suggs there were possibly fingerprints on a windowsill, Suggs still said he had not touched the house. Later, however, he wrote a statement admitting he had touched the window and looked in it, but still maintained he had not entered the house.

The trial court found Suggs guilty. The court’s written findings did not include the necessary element of residential burglary that Suggs had entered a dwelling with intent to commit a crime inside. RCW 9A.52.025(1).

DECISION
Suggs first argues that the lack of an express factual finding that he entered the residence requires us to employ the presumption that the State failed to sustain its burden of proof and therefore must reverse and dismiss. He cites State v. Armenta, 134 Wn.2d 1, 14, 948 P.2d 1280 (1997) in which the issue was whether a police officer had a reasonable suspicion that the defendant was engaged in criminal activity to justify a detention.

In a hearing on the defendant’s motion to suppress, the arresting officer testified that the defendant told him that he had an identification card, but the court did not enter a finding to that effect. Because there was no finding, the Supreme Court employed the presumption to conclude the trial court found adversely to the state on that specific factual issue. The State, on the other hand, cites State v. Alvarez, 128 Wn.2d 1, 904 P.2d 754 (1995). In Alvarez the findings upon a juvenile adjudication for harassment failed to include the necessary element that the person threatened was placed in reasonable fear the threat would be carried out. The Supreme Court rejected the argument that there was necessarily a failure of proof that required dismissal of the charge and resolved a conflict between the divisions of the court of appeals to hold the proper remedy was remand to the trial court to cure the defect in the findings. Alvarez, 128 Wn.2d at 19.

Despite the potential tension between the two cases, Armenta, the latter of the two decisions, did not mention Alvarez. We conclude that Alvarez remains good law and controls here because it is the most analogous to this case.

In Armenta, at issue was whether the court on appeal should consider an operative fact, not an ultimate fact. The evidence on that point was disputed, because the officer’s written reports did not match his oral testimony. And concluding that the trial court had found contrary to the State’s position on that limited fact was consistent with the ruling suppressing the evidence. In Alvarez, on the other hand, the issue was the same as the issue here; the effect of the court’s failure to make a finding on the necessary ultimate facts required by Juvenile Court Rule 7.11(d). The Supreme Court concluded that `[i]f findings of fact and conclusions of law do not state `ultimate’ facts, that error can be cured by remand.’ Alvarez, 128 Wn. 2d at 19. The facts here are not contested, only the inferences to be reasonably drawn from them. We conclude Alvarez controls. Moreover, even if Armenta’s application of the general common law rule about absent findings did govern a juvenile court’s failure to state ultimate facts, this record rebuts any presumption that the court found the State had not proved Suggs entered the Hackers’ home.

In closing argument, defense counsel suggested that his client, if guilty of anything, was guilty only of trespass. Consistent with this, during the oral findings, the trial judge observed that Suggs’ written statement showed that `the very least is that he’s committing a trespass’ because peering into the Hackers’ window had nothing to do with getting to the shopping center. Report of Proceedings (Dec. 16, 2003) at 85. But the court’s written findings omitted any finding that could be characterized as an ultimate finding, even on the lesser included offense of second degree criminal trespass. See RCW 9A.52.080(1). And throughout trial, it was clear that whether Suggs entered the Hacker’s home was the one contested issue for the court to resolve. Thus, we are confident that the omission of the ultimate factual findings was only an oversight and not an indicator that the experienced trial judge confused the elements of burglary with the lesser requirements of trespass.

Next, Suggs contends the evidence was insufficient to support conviction. In reviewing such a challenge, the question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Joy, 121 Wn.2d 333, 338-39, 851 P.2d 654 (1993). Circumstantial evidence and direct evidence are equally reliable. Bencivenga, 137 Wn.2d at 711. We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).

Suggs acknowledges that a burglary obviously occurred, but contends the evidence does not support a conclusion that he was guilty of the crime any more than it proves someone else was. He relies on State v. Todd, 101 Wn. App. 945, 950, 6 P.3d 86 (2000) for the proposition that `circumstantial evidence must be consistent with the hypothesis that the defendant is guilty and inconsistent with any hypothesis or theory tending to establish innocence.’ But Todd was overruled on precisely this point in State v. Rangel-Reyes, 119 Wn. App. 494, 499 n. 1, 81 P.3d 157
(2003).

The correct approach to evaluating sufficiency in this type of case was stated by the Supreme Court in Bencivenga, 137 Wn.2d at 708-09:

Just because there are hypothetically rational alternative conclusions to be drawn from the proven facts, the fact finder is not lawfully barred against discarding one possible inference when it concludes such inference unreasonable under the circumstances. . . . An essential function of the fact finder is to discount theories which it determines unreasonable because the finder of fact is the sole and exclusive judge of the evidence, the weight to be given thereto, and the credibility of witnesses.

(Citation omitted).

Here the court expressly considered the only two possibilities the evidence allowed: Suggs either committed the burglary himself or else he had the extreme misfortune of trespassing on the Hacker’s property within minutes of the burglary, and leaving it at the same moment as someone would have who had heard the automatic garage door from inside the bedroom. The court considered Suggs’ statements inconsistent with his theory of mere trespass and more consistent with someone who had peered into the house looking for something to steal because Suggs said nothing to the police or to the Hackers about seeing that their bedroom had obviously been ransacked. And despite believing the various pieces of circumstantial evidence taken individually would not support an inference of entry beyond a reasonable doubt, the court reasonably concluded that all the facts taken together did so.

Accordingly, we affirm the order of disposition and remand for entry of findings that meet the requirements of JuCR 7.11.

ELLINGTON, A.C.J., KENNEDY, J. and APPELWICK, J.