Opinion
No. 34209-0-II.
October 10, 2006.
Appeal from a judgment of the Superior Court for Lewis County, No. 05-8-00263-8, Nelson E. Hunt, J., entered November 28, 2005.
Counsel for Appellant(s), Jodi R. Backlund, Backlund Mistry, 203 4th Ave E Ste 404, Olympia, WA, 98501-1189.
Manek R. Mistry, Backlund Mistry, 203 4th Ave E Ste 404, Olympia, WA, 98501-1189.
Counsel for Respondent(s), J. Bradley Meagher, Lewis County Prosecutors Office, 360 Nw North St, Chehalis, WA, 98532-1925.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Armstrong and Penoyar, JJ.
N.N. appeals his juvenile adjudication of guilt of fourth degree assault, entered after a contested fact-finding hearing. Through counsel, he argues the juvenile court violated his constitutional rights by (1) using the judicial common law definition of assault and (2) failing to use a jury at his adjudicatory hearing. He also seeks remand because the trial court failed to enter findings of fact and conclusions of law. Pro se, N.N. argues that the trial court's finding of guilt is inconsistent with the evidence.
Because of the nature of this case, some confidentiality is appropriate. Accordingly, this court has determined pursuant to RAP 3.4 that the names of the juveniles will not be used in the case caption or the body of this opinion.
We recently rejected identical constitutional arguments. Remand is not necessary because the trial court has now entered findings and conclusions. Finally, the trial court received sufficient evidence to support its adjudication of guilt. We affirm.
FACTS
On April 18, 2005, 15-year-old N.N. lived next door to 9-year-old B.A. His second story bedroom window faced B.A.'s yard, which contained a tetherball pole. The tetherball pole was 16 feet from N.N.'s house. The foot of N.N.'s bed blocked the lower eight to ten inches of his bedroom window, which opened by sliding up. When the window was raised, there was a relatively small opening.
B.A. was in her yard playing with the tetherball; N.N. was in his room with friends. Intending to spit, N.N. opened his window; lying on the foot of his bed, he spat out of the window. N.N. later testified he spat down the side of his house, but his spittle landed on B.A.'s head and on the tetherball. N.N. and a friend claimed they did not know N.N. had hit B.A. until her mother called and the police came. But B.A. heard one of N.N.'s friends say, "[N.N.], you spit on that girl." Report of Proceedings (RP) at 14.
The State charged N.N. with fourth degree assault, a gross misdemeanor. After a contested fact-finding hearing on November 28, 2005, the trial court, sitting without a jury, found N.N. intentionally spat at B.A. and, therefore, found him guilty. The trial court did not initially enter written findings and conclusions other than those in the disposition order but did so while this appeal was pending. The trial court imposed four months of community supervision and 16 hours of community restitution but no confinement. N.N. appeals.
On May 12, 2006, the State sent to this court by facsimile a copy of the two-page findings and conclusions the trial court filed on March 29, 2006. The State filed its supplemental clerk's papers containing the findings on May 16, 2006.
Analysis
On appeal, N.N. argues that (1) using a judicial common law definition of the term "assault" violates the separation of powers because the legislature failed to define that term when codifying the elements of fourth degree assault; and (2) denying juvenile criminal defendants jury trials violates the Sixth Amendment of the U.S. Constitution and article I, sections 21-22 of the Washington Constitution. We rejected identical arguments in State v. Chavez, No. 33240-0-II, 2006 Wash. App. LEXIS 1849, at *6-18 (August 22, 2006). We adhere to our holding in Chavez and reject N.N.'s constitutional challenges.
By court rule, a juvenile court is required to enter written findings of fact and conclusions of law whenever a juvenile appeals from an adjudicatory hearing. JuCR 7.11(d). The State must submit proposed findings and conclusions to the court within 21 days after the juvenile serves his or her notice of appeal. JuCR 7.11(d). N.N. filed his notice of appeal on December 23, 2005. The trial court did not enter its findings and conclusions until March 29, 2006. The State did not present the findings to the trial court until N.N. noted in his opening brief the absence of findings.
The record does not reflect precisely when he served it on the State.
"[U]ntimely written findings will not require reversal as long as the defendant is not prejudiced and the State does not tailor the findings to meet the issues raised in [appellant's] brief." State v. Lopez, 105 Wn. App. 688, 693, 20 P.3d 978, review denied, 144 Wn.2d 1016 (2001). N.N.'s main appellate arguments are unrelated to the findings. Moreover, we discern neither prejudice nor tailoring from the untimely findings.
In his Statement of Additional Grounds (SAG), N.N. claims both defense and State witnesses testified that he accidentally spat on B.A. He then argues that "[s]ince the judge was not present at the time of the incident his opinion did not coincide with the facts presented to him, I do not understand how this can be a lawful verdict." SAG at 1. This argument reveals a misunderstanding of our court system. The State is required to prove its case to a neutral decision maker who was not present and has no interest or bias in the case. But we understand this argument to be a claim that the trial court heard insufficient evidence to support a finding of guilt beyond a reasonable doubt.
See RAP 10.10(a).
Evidence is sufficient when any rational trier of fact, viewing the evidence in the light most favorable to the State, could find that the State had proved the element beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). When a defendant claims insufficient evidence, we "must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004), abrogated on other grounds by Washington v. Re. Circumstantial evidence is as reliable as direct evidence. Thomas, 150 Wn.2d at 874.
The issue at trial was N.N.'s intent when he spit out the window. He did not deny that his spittle hit B.A.N.N. testified he accidentally spit on B.A. But the State's witnesses did not testify that N.N. spat on B.A. accidentally. Instead, they testified that N.N. claimed it was an accident when he offered a belated apology after the State charged him. The trial court did not find N.N.'s claim of accident believable and the physical and other evidence contradicted it. The trial court heard conflicting testimony, and we defer to its decisions about who and what to believe.
For instance, when it discussed N.N.'s version of events, the trial court stated, "I'm not buying how this was accomplished at all." RP at 56.
Evidence supported the trial court's ultimate finding that N.N. intentionally spat at and on B.A.N.N. got up to open the window, sat back down on the bed, rolled on his side, spat out a narrow opening which his eyes were facing, and hit a girl a full story below and 16 feet away. Taking the evidence in the light most favorable to the State, the trial court heard sufficient evidence to allow it to find beyond a reasonable doubt that N.N. intended to spit on B.A. The evidence is sufficient to support N.N.'s fourth degree assault conviction.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and PENOYAR, J., concur.