State v. Souza

• Decision Date: 11 February 1991
• Docket Number: No. 24552-0-I,24552-0-I
• Citation: 805 P.2d 237,60 Wn.App. 534
• Parties: STATE of Washington, Respondent, v. Anthony SOUZA, Appellant. Division 1
• Court: Washington Court of Appeals

Page 534

60 Wn.App. 534

805 P.2d 237

STATE of Washington, Respondent, v. Anthony SOUZA, Appellant.

No. 24552-0-I.

Court of Appeals of Washington,

Division 1.

Feb. 11, 1991.

Reconsideration Denied March 12, 1991.

Washington Appellate Defenders, Rita Griffith, Seattle, for Anthony Souza.

Norm Maleng, King County Pros. Atty., Patricia Clark, Deputy, Seattle, for State of Washington.

WINSOR, Judge. ¹

Anthony "Herbie" Souza appeals an order of disposition entered in juvenile court finding him guilty of second degree theft. Pursuant to RAP 18.12, the appeal has been referred to a panel of this court for accelerated review. ² Souza was charged with stealing various items from a residence in Seattle. At a fact-finding hearing, Souza was found guilty of one count of second degree theft. The juvenile court entered the following findings of fact:

I. Duane Charles Lange was born on October 28, 1971. At the time of trial he was 17 years of age. Anthony Jesus Souza was born January 25, 1972. At the time of trial he was 16 years of age.

II. On or about April 5, 1988, Angela Gillmer and several friends went at her suggestion to "rob her house." Among those friends were both Respondents, Herbie Souza and Duane Lange. Duane Lange was not present @ [sic ] the time of that suggestion, but knew the enterprise included removing cash belonging to Angela's parents.

III. Among items taken from the house were Angela's own stereo, and numerous items including jewelry, a VCR, a shotgun, a BB gun and cash, which belonged to Angela's parents. Neither Angela nor anyone else had permission to remove from the home any items belonging to the elder Gillmers.

IV. After her arrest Angela gave 3 different statements to police concerning this matter. She testified the third statement was true. Her trial testimony differed in some respects from all 3 earlier statements. Angela was not fully credible in any version. The Court finds credible her testimony that she proposed the "robbery" and that she talked to the others about dismantling the stereo and VCR, and that items were carried out of the house to the car by Respondents (including a rifle, the VCR, a BB gun and a shotgun).

V. A shotgun belonging to Angela's parents was sold by Duane Lange for cash which the juveniles then used in part for lodging in a motel.

VI. The juveniles were arrested on April 6, 1988. A vehicle belonging to Respondent Duane Lange was parked outside a motel room they rented and was found to be full of belongings removed from the Gillmer home. One juvenile fled the scene; Duane Lange, Herbie Souza and Angela Gillmer were arrested. Angela and Herbie gave false names.

VII. Both Respondents gave statements to police which were received in evidence. The statements were credible, and clearly established that both Respondents were aware that [items] removed from the house by them and Angela and another friend, Raquel, included items not belonging to Angela, and which she had no permission to remove.

VIII. Both Respondents were full participants in the exertion of unauthorized control over items belonging to Angela Gillmer's parents.

IX. The value of property stolen exceeded $250.

Based on these findings, the court entered the following conclusions of law:

I. The evidence establishes, beyond a reasonable doubt, that both Respondents were full participants in the theft, both as principals and as accomplices to the thefts of the others.

II. The evidence establishes beyond a reasonable doubt that the value of items stolen exceeded $250.

III. The Respondents Duane Lange and Herbie Souza are both guilty of Theft in the Second Degree, as charged.

Souza assigns error to the court's findings of fact and conclusions of law. He contends that the court's findings are insufficient to support the disposition order since they omit an essential element of the offense charged, the intent to deprive. The State of Washington has filed a brief in which it concedes that the court's findings of fact and conclusions of law are inadequate. We have independently reviewed the matter and agree that the concession of error is well taken.

JuCR 7.11 provides in pertinent part:

(c) Decision on the Record. The juvenile shall be found guilty or not guilty. The court shall state its findings of fact and enter its decision on the record. The findings shall include the evidence relied upon by the court in reaching its decision.

(d) Written Findings and Conclusions on Appeal. The court shall enter written findings and conclusions in a case that is appealed. The findings shall state the ultimate facts as to each element of the crime and the evidence upon which the court relied in reaching its decision. The findings and conclusions may be entered after the notice of appeal is filed. The prosecution must submit such findings and conclusions within 21 days after receiving the juvenile's notice of appeal.

Under this rule, the court in a juvenile adjudicatory hearing is required to enter formal findings of fact and conclusions of law as to each element of the offense charged. State v. Commodore, 38 Wash.App. 244, 250, 684 P.2d 1364, review denied, 103 Wash.2d 1005 (1984); State v. Fellers, 37 Wash.App. 613, 616, 683 P.2d 209 (1984).

Here, the court's findings fail to address the statutory element of intent to deprive which is a necessary element of second degree theft. RCW 9A.56.040(1) and 9A.56.020(1)(a); State v. Vargas, 37 Wash.App. 780, 782, 683P.2d 234 (1984). The court's findings are, therefore, inadequate. See State v. Commodore, supra,.

The next issue is what is the appropriate remedy. Souza contends that, since the State has conceded error, the disposition should be reversed and the charge dismissed. Souza argues that he will be placed in jeopardy twice for the same offense unless the charge against him is dismissed.

"The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978). The purposes and policies underlying the Double Jeopardy Clause are discussed in Serfass v. United States, 420 U.S. 377, 387-88, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975), as follows:

The constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.... 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 v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).

Citing State v. Jones, 34 Wash.App. 848, 664 P.2d 12 (1983), the State argues that the appropriate disposition is vacation and remand to the trial court for entry of further findings. In Jones, the trial court failed to make a required finding as to an essential element of the charged offense. A panel of this court concluded that the written findings of fact were inadequate, vacated the judgment of the trial court and remanded the case to the trial court for the entry of findings of fact and conclusions of law with respect to the omitted element of the offense charged. The court went on to state "[t]he trial court may, in its discretion, receive such additional material evidence relative to this issue as either party may present and shall enter such order or judgment and sentence based thereon as it shall deem appropriate." State v. Jones, supra at 851, 664 P.2d 12. Although we find the holding of Jones substantially correct, we disagree with it to the extent it authorized either party to present additional evidence in the case. Such a procedure risks violating the double jeopardy clause by "affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." Burks v. United States, supra 437 U.S. at 11, 98 S.Ct. at 2147.

Relying primarily on United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), Souza argues that, even if the trial court receives no additional evidence, a remand to permit the entry of supplemental findings here would violate the prohibition against double jeopardy. Souza's reliance on Jenkins is misplaced. Jenkins has been overruled in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978).

In addition, Jenkins is clearly distinguishable on its facts. In Jenkins, the defendant was acquitted at the original trial, and the government appealed. A defendant who has been acquitted at trial on the ground of insufficient evidence to convict may not be retried for the same offense. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). In deciding whether double jeopardy bars further criminal proceedings, courts attach particular significance to an acquittal. United States v. Scott, 437 U.S. at 91, 98 S.Ct. at 2194. As stated in Scott,

To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that "even though innocent he may be found guilty." ... On the other hand, to require a criminal defendant to stand trial again after he has successfully invoked a statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect.

United States v. Scott, supra at 91, 98 S.Ct. at 2194; see...