State Of Washington v. Clayton Daniel Gerlach ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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DIVISION ONE
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UNPUBLISHED OPINION ==
CLAYTON DANIEL GERLACH, CD
Appellant. FILED: May 4, 2015
Trickey, J. — Clayton Gerlach appeals from the judgment and sentence
following a bench trial. He argues that the evidence was insufficient to sustain his
conviction of residential burglary and that he was prejudiced by the trial court's
entry of delayed findings of fact and conclusions of law. We disagree and affirm
the conviction.
FACTS
On October 27, 2011, Mark Conner was returning to his residence in
Arlington, Washington at approximately 10 a.m. after stopping at a nearby
restaurant. As he was approaching his house, he noticed a white sports utility
vehicle (SUV) pull into his driveway. The SUV was parked on Conner's property
about halfway between the house and the entrance to the driveway. Conner
parked his vehicle in the driveway and approached the driver sitting inside the
white SUV. Conner noticed that the driver had short black hair and was wearing
a black leather coat over a white T-shirt. Conner asked the driver if he needed
help. The driver told Conner that he was having engine problems, after which he
honked the horn to his vehicle. At that point, Conner became suspicious and said
he was going to call 911.
No. 71416-3-1/2
When Conner left his house that morning, he had turned the lights off,
locked the front door and the screen door. But when he entered the house to call
911, he observed that a light was on inside, the screen door was open, and the
front door was unlocked. Conner also discovered that many items had been
displaced and the house was in disarray. Conner had not given permission to
anyone to enter his home.
Conner ran outside. He planned to obstruct the SUV in the driveway, but
the SUV swiftly pulled out of the driveway once he emerged outside. Conner
noticed a pink trailer hitch attached to the vehicle.
The driver of the SUV honked the horn once again. As Conner was calling
911, he saw a man scurry across his front yard and into some bushes. The man
entered the SUV, which immediately sped off down the street.
Conner provided descriptions of the vehicle and the driver to the police.
Shortly thereafter, Snohomish County Police Officer Thomas Morris observed
Clayton Gerlach walking on the side of aroad located between one and two miles
from Conner's house. According to Officer Morris, it was dangerous to walk on
that road, and was very unusual to see pedestrians there. Officer Morris observed
that Gerlach's face was red, as if he had been exerting himself. Nevertheless,
Officer Morris did not stop Gerlach but continued to search for the vehicle Conner
had described—a white SUV with a pink trailer hitch. He soon found the vehicle
parked approximately 200 yards from where he had seen Gerlach walking. The
SUV was parked at an angle and there were skid marks on the grass, as if the
vehicle had skidded to a stop. The SUV was still warm, indicating that the vehicle
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had been recently driven. Based on these observations, it appeared to Officer
Morris that the vehicle had been abruptly stopped or "ditched" by the driver who
wanted to flee the vehicle.1 As soon as he saw the vehicle, Officer Morris alerted
other responding officers of the vehicle and the suspect and requested that they
stop and detain Gerlach.
Officer Kenneth Thomas stopped Gerlach on the side of the road. Officer
Thomas noticed Gerlach was walking at a heightened pace and was not wearing
a jacket despite the cold weather. Gerlach was perspiring and breathing heavily.
When Officer Thomas asked Gerlach where he was coming from, Gerlach was
unable to answer. Gerlach said he was from Everett, but could not explain why he
was in the area that day.
Conner subsequently identified the SUV by its color and style, from an item
hanging from the rearview mirror, and from the distinctive pink trailer hitch on the
rear of the vehicle. Conner then identified Gerlach as the man he encountered in
the driveway.
A K-9 officer arrived to the scene. The dog followed a scent trail from
Gerlach's vehicle to the location where Gerlach was detained, about one half mile
from the SUV. However, the K-9 officer was unable to locate the second suspect.
The State charged Gerlach with one count of residential burglary and one
count of bail jumping. Gerlach stipulated to a bench trial on agreed documentary
evidence on the bail jumping charge. He waived his right to a jury trial on the
residential burglary charge.
Report of Proceedings (RP) (11/18/2013) at 70.
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A bench trial took place in November 2013. The State called Conner as a
witness, along with several of the investigating officers. Gerlach testified that he
was in Arlington on the day in question to apply for a job. He said that he ended
up in Conner's neighborhood because he once had friends who lived in that
neighborhood. He testified that he took a wrong turn in that neighborhood.
According to Gerlach, he was experiencing car trouble that day so he pulled into
Conner's driveway. He left when Conner began appearing suspicious of him.
Afterwards, Gerlach testified that he got lost and pulled over on the road because
the engine failed.
At the conclusion of the trial, the trial court found Gerlach guilty on both
charges. The trial court entered findings of fact and conclusions of law as to the
residential burglary conviction on September 3, 2014, and supplemental findings
on October 7.2014.2
Gerlach appeals.
ANALYSIS
Sufficiency of the Evidence
Gerlach contendsthat insufficient evidence supported the trial court's guilty
verdict. This is so, he asserts, because the State did not establish that he was the
principal or accomplice in the crime. We disagree.
The due process clauses of the federal and state constitutions require that
the State prove every element of a crime beyond a reasonable doubt. Apprendi v.
New Jersey. 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000);
2The trial court entered separate findings of fact and conclusions of law with regard to the
bail jumping charge.
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U.S. Const, amend. XIV; Wash. Const, art. I, § 3. "[T]he critical inquiry on review
of the sufficiency of the evidence to support a criminal conviction must be ... to
determine whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979). "[T]he relevant question 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."
Jackson, 443 U.S. at 319.
By challenging the sufficiency of the State's evidence, Gerlach admits the
truth of the State's evidence and all reasonable inferences from that evidence.
State v.Kintz, 169Wn.2d 537, 551, 238 P.3d 470 (2010). Circumstantial evidence
and direct evidence can be equally reliable. State v. Delmarter, 94 Wash. 2d 634,
638, 618 P.2d 99 (1980). We defer to the fact finder on questions of conflicting
testimony, credibility of witnesses, and the persuasiveness of the evidence. State
v. Killinasworth. 166 Wash. App. 283, 287, 269 P.3d 1064 (2012).
The State charged Gerlach with residential burglary in violation of RCW
9A.52.025. To find Gerlach guilty of residential burglary, the State was required to
prove that, "with intent to commit a crime against a person or property therein,
[Gerlach or an accomplice] enter[ed] or remained] unlawfully in a dwelling other
than a vehicle." RCW 9A.52.025.
Under Washington's complicity statute, an individual is guilty of a crime
committed by another if he or she "is an accomplice of such other person in the
commission of the crime." RCW 9A.08.020(2)(c). Aperson is an accomplice if,
No. 71416-3-1/6
with knowledge that it will promote or facilitate the commission of the crime, he
encourages or aids another in committing it. RCW 9A.08.020(3)(a)(i) and (ii). "The
word 'aid' means all assistance whether given by words, acts, encouragement,
support, or presence." 11 Washington Practice: Washington Pattern Jury
Instructions: Criminal 10.51, at 217 (3d ed. 2008). Intent may be inferred where
the circumstances indicate such intent as a matter of logical probability. State v.
Johnson, 159Wn. App. 766, 774, 247 P.3d 11 (2011). Specific knowledge ofeach
element of the principal's crime need not be proved to convict a person as an
accomplice. State v. Roberts, 142 Wash. 2d 471, 513, 14 P.3d 713 (2000); State v.
Rice, 102 Wash. 2d 120, 125, 683 P.2d 199 (1984). General knowledge of the crime
is sufficient to support a finding ofaccomplice liability. Roberts, 142 Wash. 2d at 513.
Gerlach contends that insufficient evidence supported that he was an
accomplice in the burglary because, he asserts, there was no evidence that he
had the intent to commit the crime or that he had knowledge that his actions would
aid the commission of the crime. He maintains that the only evidence implicating
him was his presence at the scene of the crime. In support of this contention,
Gerlach cites to State v. Truong, where we noted:
Mere presence of thedefendant without aiding the principal—despite
knowledge of the ongoing criminal activity—is not sufficient to
establish accomplice liability. Rather, the State must prove that the
defendant was ready to assist the principal in the crime and that he
shared in the criminal intent of the principal, thus "demonstrating a
community of unlawful purpose at the time the act was committed."
168 Wash. App. 529, 540, 277 P.3d 74 (2012) (internal citations omitted).
The State proved that Gerlach had the intent to commit the burglary and
was ready to aid. Gerlach was not "merely present" at the scene of the crime.
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The evidence shows that Gerlach honked the horn once Conner confronted him
on his driveway. Gerlach honked the horn a second time when Conner returned
outside after discovering his residence had been burglarized. From these facts,
one could reasonably infer that Gerlach was attempting to alert the suspect of
Conner's presence. Furthermore, Conner testified that the other suspect entered
Gerlach's vehicle and the two men immediately fled the scene.
A rational trier of fact could find beyond a reasonable doubt that Gerlach
committed the crime of residential burglary as an accomplice.
Belated Findings and Conclusions
Gerlach next contends that he was prejudiced by the trial court's belated
entry offindings offacts and conclusions of law. We disagree.
Gerlach filed his opening brief on July 7, 2014, challenging the sufficiency
of the evidence and asserting that thetrial court failed to enter findings of facts and
conclusions of law. On September 3, 2014, the trial court entered findings of fact
and conclusions of law. The trial court found Gerlach guilty of residential burglary
and entered the following facts:
1. That on or about the 27th day of October 2011;
2. The Defendant, Clayton Gerlach;
3. Did enter or remain unlawfully in a dwelling with the intent to
commit a crime of theft;
4. That the defendant acted as an accomplice by assisting and
aiding another party in the commission of this crime; and
5. That the acts occurred in Snohomish County Washington.131
The trial court entered supplemental findings offact and conclusions of law
on October 7, 2014. In the trial court's supplemental findings, the court found that
3 Clerk's Papers (CP) at 98.
No. 71416-3-1/8
Gerlach "knew that the unknown person had entered the residence without
permission to steal property inside the residence," and that Gerlach "intended to
aid and facilitate the unknown person's commission of the crime of residential
burglary."4 The trial court also found not credible Gerlach's "explanation for his
behavior, including his reason for being in the area and horn honking."5 The trial
court concluded that Gerlach was guilty beyond a reasonable doubt as an
accomplice of the crime.
On October 16, 2014, the State asked this court to grant permission
pursuant to RAP 7.2(e) for the trial court to formally enter its findings of fact and
conclusions of law and supplemental findings. On October 31, 2014, we granted
this request. Gerlach filed his appellant's reply brief and supplemental assignment
of error on December 5, 2014.
CrR 6.1(d) requires the trial court to enter written findings of fact and
conclusions of law at the conclusion of a bench trial. State v. Head, 136 Wash. 2d
619, 621-22, 964 P.2d 1187 (1998). This enables an appellate court to review the
questions raised on appeal. Head, 136 Wash. 2d at 622. The proper remedy for
failure to comply with CrR 6.1(d) is remand for entry of written findings of fact and
conclusions of law. Head, 136 Wash. 2d at 624. Reversal is only appropriate where
the defendant has established actual prejudice. Head, 136 Wash. 2d at 624.
Although the practice of submitting late findings of fact and conclusions of law is
disfavored, findings and conclusions may be submitted and entered even while an
4 CP at 96.
5 CP at 96.
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appeal is pending ifthe defendant is not prejudiced by the belated entry of findings.
State v. McGarv, 37 Wash. App. 856, 861, 683 P.2d 1125 (1984),
"We will not infer prejudice . . . from delay in entry of written findings of fact
and conclusions of law." Head, 136 Wash. 2d at 625. Rather, "a defendant might be
able to show prejudice resulting from the lack of written findings and conclusions
where there is strong indication that findings ultimately entered have been 'tailored'
to meet issues raised on appeal." Head, 136 Wash. 2d at 624-25.
Gerlach argues that he was prejudiced by the belated findings because the
findings were tailored to his argument on appeal. He points to the trial court's oral
ruling in which the court did not recite any facts to support its conclusion that he
was guilty of residential burglary:
I have had a chance to review my notes as well as all the exhibits
that were admitted in this case, and I am ready to make my decision.
So, in this matter I find Mr. Gerlach guilty of the charge. I've
already found him guilty of the bail jumping charge, but I find him
guilty of the charge of residential burglary.[6]
Gerlach relies on the well settled principle in Washington that a defendant
is not prejudiced by a trial court's delayed findings if the findings track its oral
decision. State v. Cannon, 130 Wash. 2d 313, 329-30, 922 P.2d 1293 (1996); State
v, Rjtter, 149 Wash. App. 105, 108-9, 201 P.3d 1086 (2009); Statev. Portomene, 79
Wash. App. 863, 905 P.2d 1234 (1995)). However, Gerlach has failed to identify any
legal authority establishing that belated written findings following a trial court's
incomplete oral decision results in prejudice.
6 Report of Proceedings (11/26/2013) at 2.
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Indeed, the trial court's decision did not change when it entered the findings
of fact and conclusions of law. At trial, the State's theory of the case was that
Gerlach was an accomplice to the burglary by acting as a lookout and the get
away driver. Defense counsel argued that Gerlach was encountering car trouble
and therefore was merely present as an innocent bystander to the crime.7 Based
on these opposing theories, the trial court was required to make a credibility
determination. Its oral ruling finding Gerlach guilty demonstrates that the trial court
did not believe Gerlach's testimony that he was innocently present in the
neighborhood; otherwise, the trial court would have acquitted Gerlach. In the trial
court's supplemental findings, it determined that "[t]he defendant's explanation for
his behavior, including his reason for being in the area and the horn honking was
not credible."8 The findings did not deviate from the court's original oral decision.
Acomparison of the trial court's findings of fact and Gerlach's briefing on appeal
reveals no strong indication that the findings were tailored to the issue raised by
Gerlach on appeal.
Affirmed.
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WE CONCUR:
7 RP (11/18/2013) at 127.
8 CP at 96.
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