State v. Head

Madsen, J.

Petitioner challenges the sufficiency of the evidence supporting his conviction for eight counts of first degree theft. He also maintains that the absence of written findings of fact and conclusions of law following his bench trial requires reversal, or, alternatively, remand for entry of findings and conclusions. We agree that remand is required, and do not reach the merits of petitioner’s challenge to the sufficiency of the evidence.

FACTS

In light of our legal analysis, only a brief overview of the facts is provided. Petitioner Stephen Head was an owner and officer of RBH2S, Inc., a company which managed logging of timberland. RBH2S entered agreements with the owners of the timberland whereby the company would collect and distribute the money received from the sale of harvested forest products. Some of the contracts authorized RBH2S to pay its management fee from amounts collected. RBH2S bookkeepers testified that the owners’ shares of funds collected from timber mills were placed in trust accounts, and that Head transferred money from these accounts to pay RBH2S’s bills and to pay other clients for previously logged timber. RBH2S declared bankruptcy in 1991. At that time, there was a deficit in the trust accounts of about $230,000. Head told the bankruptcy trustee that he had been using funds from the trust accounts to pay immediate obligations, that he was “robbing Peter to pay Paul.” Verbatim Report of Proceedings (RP) at 406.

Head was charged with nine counts of first degree theft. Each count involved a separate landowner whose funds Head allegedly appropriated for corporate or personal use. Following a bench trial, the trial court issued an oral decision finding Head guilty of eight of the counts, and entered a judgment and sentence accordingly. The court did not enter written findings of fact and conclusions of law.

Head appealed, arguing that the evidence was insufficient to convict him, and that the absence of written findings and conclusions requires reversal. The Court of Appeals affirmed. We granted discretionary review, and remand for entry of written findings and conclusions.

ANALYSIS

CrR 6.1(d) requires entry of written findings of fact and conclusions of law at the conclusion of a bench trial.¹ The purpose of CrR 6.1(d)’s requirement of written findings of fact and conclusions of law is to enable an appellate court to review the questions raised on appeal. See City of Bremerton v. Fisk, 4 Wn. App. 961, 962, 486 P.2d 294 (1971), disapproved on other grounds by State v. Souza, 60 Wn. App. 534, 805 P.2d 237 (1991); cf. State v. McGary, 37 Wn. App. 856, 861, 683 P.2d 1125 (1984) (JuCR 7.11); State v. Stock, 44 Wn. App. 467, 477, 722 P.2d 1330 (1986) (CrR 3.6). As the Court of Appeals acknowledged and the parties agree, the trial court failed to comply with the rule. Defendant contends that, as a result, his conviction should be reversed. Alternatively, he urges that this case should be remanded for entry of findings and conclusions. The State argues, to the contrary, that the trial court’s oral decision is comprehensive and satisfies the purposes of CrR 6.1(d); thus, error in failing to enter written findings and conclusions is harmless and Defendant’s conviction should be upheld.

Remand for entry of written findings and conclusions is the proper course. A trial court’s oral opinion and memorandum opinion are no more than oral expressions of the court’s informal opinion at the time rendered. State v. Mallory, 69 Wn.2d 532, 533, 419 P.2d 324 (1966). An oral opinion “has no final or binding effect unless formally incorporated into the findings, conclusions, and judgment.” Id. at 533-34; accord State v. Dailey, 93 Wn.2d 454, 458-59, 610 P.2d 357 (1980).

Moreover, appellate review is facilitated by written findings and conclusions. A prosecuting attorney required to prepare findings and conclusions will necessarily need to focus attention on the evidence supporting each element of the charged crime, as will the trial court. That focus will simplify and expedite appellate review. This case demonstrates the need for that focus. The eight counts here involve eight separate agreements (which are not identical), and different factual circumstances which may affect the determination as to each element of each of the alleged offenses. Yet the trial court’s oral decision does not sufficiently address each count separately, and it does not adequately identify the evidence relied upon to support each element of each count. It fails to “ ‘treat with the elements of the crime [s] separately, indicating the factual basis for each of’ ” its conclusions of law. State v. Wilks, 70 Wn.2d 626, 628, 424 P.2d 663 (1967) (quoting State v. Russell, 68 Wn.2d 748, 750, 415 P.2d 503 (1966)). If CrR 6.1(d) had been satisfied, an adequate basis for appellate review might have been the result.

Written findings and conclusions also enable an appealing defendant to focus on issues arguably supported by the record and avoid pursuing issues obviously lacking merit. By the same token, adequate findings and conclusions may in some circumstances support dismissal on a motion on the merits, thus expediting disposition of meritless appeals.

Decisions by the Court of Appeals point up the need for a consistent, uniform approach.² The rule itself provides the basis for the needed consistency by mandating entry of written findings and conclusions. Our cases, too, direct compliance with the requirement. Although we have not visited this precise issue recently, we have frequently held that the failure to enter written findings and conclusions following a criminal bench trial requires remand for entry of findings and conclusions, and we have refused to address issues raised on appeal in the absence of such findings and conclusions. E.g., State v. Wilks, 70 Wn.2d 626; State v. Wood, 68 Wn.2d 303, 412 P.2d 779 (1966); State v. Russell, 68 Wn.2d 748, 415 P.2d 503 (1966); State v. Marchand, 62 Wn.2d 767, 384 P.2d 865 (1963); State v. Helsel, 61 Wn.2d 81, 377 P.2d 408 (1962); City of Seattle v. Silverman, 35 Wn.2d 574, 214 P.2d 180 (1950).

We hold that the failure to enter written findings of fact and conclusions of law as required by CrR 6.1(d) requires remand for entry of written findings and conclusions. An appellate court should not have to comb an oral ruling to determine whether appropriate “findings” have been made, nor should a defendant be forced to interpret an oral ruling in order to appeal his or her conviction.

We note the possibility that reversal may be appropriate where a defendant can show actual prejudice resulting from the absence of findings and conclusions or following remand for entry of the same. For example, 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.³ The burden of proving any such prejudice will be on the defendant. Cf. State v. Royal, 122 Wn.2d 413, 423, 858 P.2d 259 (1993) (burden of proving prejudice resulting from late entry of written findings and conclusions on defendant; concerning JuCR 7.11(d)).

We will not infer prejudice, however, from delay in entry of written findings of fact and conclusions of law. In this case, petitioner has not established actual prejudice resulting from the absence of findings and conclusions, and accordingly remand for entry of written findings of fact and conclusions of law is the proper course.

However, no additional evidence may be taken; the findings and conclusions are to be based on the evidence already taken. See State v. Alvarez, 128 Wn.2d 1, 20-21, 904 P.2d 754 (1995) (double jeopardy principles prohibit second trial for purpose of affording the prosecution the opportunity to supply evidence which it failed to muster in the first proceeding; this rule is not violated where remand is solely for entry of additional findings and conclusions required by JuCR 7.11 provided that the taking of new evidence is prohibited); State v. Souza, 60 Wn. App. 534, 805 P.2d 237 (1991).⁴ The trial court is not bound by its earlier oral decision. It is free to determine that, despite its earlier ruling, a conviction on any or all of the eight counts is not appropriate after specifically addressing the evidence relating to each of the elements of first degree theft with respect to each of the eight counts. (Double jeopardy principles bar reconsideration of the count on which petitioner was acquitted.)

The judgment and sentence are vacated and this case is remanded for entry of findings and conclusions in accord with CrR 6.1(d), and a judgment based on the findings and conclusions shall be entered from which either party may appeal as in the usual course of things. See Wilks, 70 Wn.2d at 629; Russell, 68 Wn.2d at 756.

Durham, C.J., and Dolliver, Smith, Guy, Alexander, and Talmadge, JJ., concur.

1 CrR 6.1(d), the rule dealing with trials without juiy, states:

In a case tried without a jury, the court shall enter findings of fact and conclusions of law. In giving the decision, the facts found and the conclusions of law shall be separately stated. The court shall enter such findings of fact and conclusions of law only upon 5 days’ notice of presentation to the parties.

2 There is considerable inconsistency in decisions of the Court of Appeals. For example, in a case relied upon by petitioner, Division Three held that reversal is required where there is a complete absence of any written findings of fact and conclusions of law required by JuCR 7.11(d). E.g., State v. Naranjo, 83 Wn. App. 300, 921 P.2d 588 (1996). The court in Naranjo distinguished between inadequate findings, which it reasoned could be remedied by remand for entry of additional findings, and a complete lack of findings. The court reasoned that an appearance of unfairness was created by noncompliance with the rule, and that remanding for entry of findings after an appeal had heen briefed is inherently prejudicial. Id. at 302.

In other cases, the appellate court has held that there is a strong presumption that dismissal is required. State v. Cruz, 88 Wn. App. 905, 909, 946 P.2d 1229 (1997) (Div. I) (suppression hearing); State v. Smith, 68 Wn. App. 201, 842 P.2d 494 (1992) (Div. I) (same). Some cases direct remand for entry of findings and conclusions, expressly rejecting reversal as a remedy. E.g., State v. Jones, 34 Wn. App. 848, 664 P.2d 12 (1983) (Div. I). Others direct remand with little discussion of remedy. City of Bremerton v. Fisk, 4 Wn. App. 961, 486 P.2d 294 (1971) (Div. II), disapproved on other grounds by State v. Souza, 60 Wn. App. 534, 805 P.2d 237 (1991); State v. Denison, 78 Wn. App. 566, 897 P.2d 437 (1995) (Div. III).

In some cases, Division One has required that there be actual prejudice before reversal is required. State v. Portomene, 79 Wn. App. 863, 905 P.2d 1234 (1995) (involving late entry of findings and conclusions after defendant appealed); State v. McGary, 37 Wn. App. 856, 683 P.2d 1125 (1984) (same). However, Division One has also concluded that although prejudice is required before reversal, a complete disregard for a rule requiring written findings and conclusions nevertheless requires reversal because the disregard for procedure creates an appearance of unfairness. State v. McCrorey, 70 Wn. App. 103, 851 P.2d 1234 (1993) (Div. I). Division Two has also reversed where it found obvious prejudice because the practice of permitting entry of findings after remand has an appearance of unfairness. However, the court added that “perhaps more important,” the defendant had been in custody since filing the notice of appeal and could not be afforded the same relief following remand, given the possibility of a new appeal and the time it would require for additional briefing. State v. Witherspoon, 60 Wn. App. 569, 572, 805 P.2d 248 (1991) (Div. II).

3 This kind of prejudice could be shown only, of course, after remand and the entry of findings.

4 In State v. Wilks, 70 Wn.2d 626, 629, 424 P.2d 663 (1967), the court directed that additional evidence could be taken on remand. That direction is sound with regard to the issue of competency raised in that case, where an adequate hearing on defendant’s competency to stand trial had not been held. However, to the extent that the case suggests that taking of new evidence is generally permissible upon remand for entry of written findings and conclusions following a criminal bench trial, it is disapproved.