State v. Hescock

• Decision Date: 22 December 1999
• Docket Number: No. 22572-7-II.,22572-7-II.
• Citation: 989 P.2d 1251,98 Wash.App. 600
• Parties: STATE of Washington, Respondent, v. Ryan Lloyd HESCOCK, Appellant.
• Court: Washington Court of Appeals

989 P.2d 1251

98 Wash.App. 600

STATE of Washington, Respondent, v. Ryan Lloyd HESCOCK, Appellant.

No. 22572-7-II.

Court of Appeals of Washington, Division 2.

December 22, 1999.

Kitteridge Oldham (Court Appointed), Seattle, for Appellant.

Cynthia Cecilia Szeker, Seattle, for Respondent.

ARMSTRONG, A.C.J.

Ryan Hescock was charged in juvenile court with one count of forgery. Although the State charged Hescock with two alternative means of committing forgery in violation of RCW 9A.60.020(1)(a) and RCW 9A.60.020(1)(b), the trial court found Hescock guilty of violating only RCW 9A.60.020(1)(a). On appeal, Hescock argues that the evidence is insufficient to support his conviction under alternative (1)(a) and that double jeopardy prevents a remand for the trial court to consider whether he is guilty under alternative (1)(b). We agree and accordingly reverse and dismiss Hescock's adjudication of guilt.

FACTS

Ryan Hescock cashed a payroll check payable to Michael Gooch at U.S. Bank in Sequim on May 8, 1997. Gooch's name was written on the back of the check, and underneath was written "Pay to the order of: Ryan Hescock," followed by Hescock's signature. Gooch did not endorse the check and did not authorize Hescock, a stranger, to cash it.

Hescock told the police that on May 8, he was standing near a bus stop in Sequim when a stranger approached and asked if he had identification and a bank account. The man offered Hescock $5.00 to cash a check at Hescock's bank. Hescock took the check and walked a few blocks to U.S. Bank, where he had an account. He wrote his name on the back of the check, cashed it and took the cash back to the man. Hescock said that Gooch's name was on the back of the check when he got it from the stranger. The police officer did not recall asking Hescock who wrote "Pay to the order of: Ryan Hescock."

Hescock was charged with one count of forgery by means of falsely making, completing or altering a written instrument in violation of RCW 9A.60.020(1)(a), or in the alternative, by possessing or putting off as true a written instrument he knew to be forged in violation of RCW 9A.60.020(1)(b).

In its oral ruling, the court concluded that Hescock was guilty of both means of forgery. In its written ruling, however, the court found that Hescock was guilty of forgery only under (1)(a), i.e., he falsely made, completed or altered a written instrument.

ANALYSIS

Hescock first contends that the evidence is insufficient to convict him of RCW 9A.60.020(1)(a) because the testimony showed only that he signed his own name to the back of the check. The State conceded at oral argument and we agree that the evidence does not support a conviction under 9A.60.020(1)(a).¹ But the State urges us to remand for the trial court to determine whether Hescock violated 9A.60.020(1)(b). Hescock counters that a remand would violate double jeopardy.

The Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb[.]"² U.S. CONST. amend. V. The Double Jeopardy Clause protects against three distinct abuses by government: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.³ Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 306-07, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984). "The primary goal of barring reprosecution after acquittal is to prevent the State from mounting successive prosecutions and thereby wearing down the defendant." Lydon, 466 U.S. at 307, 104 S.Ct. 1805. The Supreme Court explained the rationale in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, 61 A.L.R.2d 1119 (1957):

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green, 355 U.S. at 187-88, 78 S.Ct. 221.

But the prohibition against successive trials is not absolute. Lydon, 466 U.S. at 308, 104 S.Ct. 1805. If a defendant appeals his conviction and is granted a new trial, retrial for the same offense is generally not barred. Lydon, 466 U.S. at 308, 104 S.Ct. 1805 (citing Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896)). In allowing retrial after conviction and a successful appeal, the Supreme Court has adopted the concept of continuing jeopardy. (Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970)). Under this concept, the initial jeopardy does not automatically terminate following conviction; instead, the criminal proceeding continues to "run its full course." See Price, 398 U.S. at 326,

90 S.Ct. 1757 (citing Green, 355 U.S. at 189,

78 S.Ct. 221); Lydon, 466 U.S. at 308,

104 S.Ct. 1805. The "[i]nterests supporting the continuing jeopardy principle involve fairness to society, lack of finality, and limited waiver." Lydon, 466 U.S. at 308,

104 S.Ct. 1805 (citing Price, 398 U.S. at 329 n. 4,

90 S.Ct. 1757).

In contrast, an acquittal terminates the initial jeopardy, thereby preventing a second trial. Lydon, 466 U.S. at 308,104 S.Ct. 1805. "This is so whether [acquittals] are `express or implied by a conviction on a lesser included offense.'" Lydon, 466 U.S. at 308,104 S.Ct. 1805 (quoting Price, 398 U.S. at 329,90 S.Ct. 1757). Similarly, if an appellate court has held that evidence is insufficient to support the conviction, then retrial for that offense is prohibited. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The unreversed finding of insufficient evidence by an appellate court is the equivalent of an acquittal. Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984).

Because we have held the evidence insufficient to support the forgery conviction under (1)(a), Hescock clearly cannot be retried on that alternative. But the State argues that the evidence is sufficient to convict him under RCW 9A.60.020(1)(b). And although the trial court did not enter written findings and conclusions with respect to alternative (1)(b), the State asks us to look to the trial court's oral ruling.

Under alternative 1(a), a person is guilty of forgery if, with intent to injure or defraud, he "falsely makes, completes, or alters a written instrument." RCW 9A.60.020(1)(a). Alternative 1(b) provides that a person is guilty of forgery if, with intent to injure or defraud, he "possesses, utters, offers, disposes of, or puts off as true a written instrument which he knows to be forged." RCW 9A.60.020(1)(b). In its initial oral ruling, the trial court discussed both means of committing forgery and concluded that Hescock was guilty under either alternative. Yet in its written findings of fact and conclusions of law, the court found Hescock guilty only under RCW 9A.60.020(1)(a), i.e., he did falsely make, complete or alter a written instrument.

A court's oral opinion is not a finding of fact. State v. Reynolds, 80 Wash.App. 851, 860 n. 7, 912 P.2d 494 (1996) (citing State v. Williamson, 72 Wash.App. 619, 623, 866 P.2d 41 (1994)). Rather, the court's oral opinion is "no more than a verbal expression of [its] informal opinion at that time ... necessarily subject to further study and consideration, and may be altered, modified, or completely abandoned." Ferree v. Doric Co., 62 Wash.2d 561, 567, 383 P.2d 900 (1963). And the trial court's oral decision is not binding "unless it is formally incorporated into findings of fact, conclusions of law, and judgment." State v. Dailey, 93 Wash.2d 454, 459, 610 P.2d 357 (1980) (citations omitted).

Nevertheless, a reviewing court may look to the trial court's oral ruling to interpret written findings and conclusions. State v. Bynum, 76 Wash.App. 262, 266, 884 P.2d 10 (1994) (trial court's comprehensive oral ruling used to determine that State proved essential elements); State v. Moon, 48 Wash.App. 647, 653, 739 P.2d 1157 (1987). But here, the trial court's written findings and conclusions are unambiguous; the court did not find Hescock guilty under (1)(b). Accordingly, it is unnecessary to look to the oral ruling to interpret the written conclusions.⁴

Yet Washington courts have allowed remand following an adjudication of guilt when the findings and conclusions are incomplete. See State v. Head, 136 Wash.2d 619, 622-23, 964 P.2d 1187 (1998)

(remand appropriate following trial court's failure to enter written findings and conclusions); State v. Alvarez, 128 Wash.2d 1, 19, 904 P.2d 754 (1995) (case remanded where evidence supported conviction but trial court failed to enter findings on ultimate facts); State v. Souza, 60 Wash.App. 534, 805 P.2d 237 (1991) (remand proper remedy where trial court failed to address element of intent). Remand in these circumstances does not violate double jeopardy principles because the defect is not based on the prosecution's failure to prove its case; the defendant was not acquitted because of insufficient evidence; and no additional evidence is required or allowed on remand. Souza, 60 Wash.App. at 541,

805 P.2d 237; see Alvarez, 128 Wash.2d at 19-21,

904 P.2d 754; see also Head, 136 Wash.2d at 625,

964 P.2d 1187. Thus, in Alvarez, remand did not violate double jeopardy because it was clear that the defendant had been convicted. The court's findings and conclusions "unequivocally state that `[t]he offense of Harassment has been proven beyond a reasonable doubt.'" Alvarez, 128 Wash.2d at 20,

904 P.2d 754 (alteration in original). Similarly, in Souza, the trial court's failure to enter a finding of criminal intent, unless considered an inadvertent error, would be "utterly inconsistent" wit...