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                                                                            20UHAR-3 AH It: 02




     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                       No. 69951-2-1
                      Respondent,
                                                       DIVISION ONE
      v.



ARDEN CURTIS GIBSON,                                   UNPUBLISHED OPINION

                      Appellant.                       FILED: March 3. 2014

       Spearman, A.C.J. —At trial for burglary in the first degree, the defendant

Arden Curtis Gibson moved pursuant to CrR 3.6 to suppress a show-up

identification and stolen property seized following an investigative Terry1 stop
and subsequent arrest. After a hearing, the trial court denied the motion and

Gibson was subsequently found guilty as charged by a jury. Gibson appeals,

arguing that the trial court erred when it denied his motion to suppress. He also

claims that the trial court committed reversible error when it failed to enter written

findings of fact and conclusions of lawfollowing the CrR 3.6 hearing. We affirm.

                                           FACTS

       On October 1, 2012, Seattle Police Officer Joseph Kowalchyk was

patrolling in North Seattle when he heard a radio dispatch about a burglary in

progress at an occupied home three or four blocks away from his location. The

dispatch provided a general description of the suspect: "black male, middle age,

       1Terrv v. Ohio. 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d. 889 (1968).
No. 69951-2-1/2


late twenties, early thirties. Dark clothing description." Verbatim Report of

Proceedings (VRP) (1/10/13) at 11. Dispatch also reported the suspect had a

backpack, |g\ There was no mention of a direction of flight, facial hair or hair type

for the suspect, or other distinguishing characteristic.

       When Officer Kowalchyk heard the dispatch at 11:04 a.m., several other

officers were already in the area looking for the suspect. Officer Kowalchyk

activated his emergency lights and joined the search. About five minutes later, he

noticed a black male stuffing a dark piece of clothing into a backpack. At the

time, this man, later identified as Gibson, was the only black male with a

backpack on the street. He was also located within three to five blocks away from

the burglarized home. Officer Kowalchyk pulled over in his patrol car next to

Gibson. He made eye contact with Gibson as he approached, at which point

Gibson began crossing the street. Officer Kowalchyk told Gibson to stop, but

Gibson continued to cross the street at a "pretty fast pace," while saying

something to the effect of: "you talking about the dude that was down the street

there... ." VRP (1/10/13) at 22-24.

       Officer Kowalchyk stopped Gibson at 11:09 a.m. and detained him while

the victim was brought to his location for a show-up identification. Upon arrival,

the victim identified Gibson as the burglar and, at 11:18 a.m., Officer Kowalchyk

arrested Gibson. A search incident to arrest of Gibson's backpack revealed

antique silver dishes and silverware that had been taken from the victim's home.

       Gibson was charged with one count of first-degree burglary. He moved to

suppress the show-up identification and the items seized from his backpack,

arguing that they were the fruits of an illegal seizure because Officer Kowalchyk
No. 69951-2-1/3


lacked reasonable suspicion to detain him. In an oral ruling, the trial court denied

the motion to suppress, finding that Gibson's close proximity to the crime scene a

few minutes after the crime was reported and his general conformity with the

description of the suspect were sufficient to give Officer Kowalchyk reasonable

grounds to believe that Gibson had been involved in the crime. The trial court

entered written findings of fact and conclusions of law regarding its ruling, but not

until well after Gibson filed notice of appeal. A jury convicted Gibson as charged.

He appeals.

                                    DISCUSSION

       Gibson challenges his conviction for first-degree burglary. He argues that

because the officer's initial stop was unlawful, the trial court erred in failing to

suppress all evidence obtained subsequent to the stop. He argues that absent

the improperly admitted evidence, there is insufficient evidence to sustain his

conviction. We conclude the stop was lawful because the officer had reasonable,

articulable grounds to suspect Gibson was involved in criminal activity and that

the trial court properly admitted the contested evidence. We affirm.

       In reviewing the denial of a motion to suppress, we determine whether

substantial evidence supports the trial court's factual findings, and whether those

findings support its conclusions of law. State v. Ross, 106 Wn. App. 876, 880, 26

P.3d 298 (2001). Unchallenged findings are verities on appeal. \j± Conclusions of

law are reviewed de novo. id.

       Brief investigatory stops are well-established exceptions to the general

rule that warrantless seizures are unconstitutional. Terry v. Ohio. 392 U.S. at 30-

31: State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008). A Jerry stop
No. 69951-2-1/4


is justified when an officer has specific and articulable facts that give rise to a

reasonable suspicion that the person stopped is, or is about to be, engaged in

criminal activity. State v. Kinzv. 141 Wn.2d 373, 384-85, 5 P.3d 668 (2000). A

reasonable suspicion is the "substantial possibility that criminal conduct has

occurred or is about to occur." State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445

(1986). "The reasonableness of the officer's suspicion is determined by the

totality of the circumstances known to the officer at the inception of the stop."

State v. Rowe, 63 Wn. App. 750, 753, 822 P.2d 290 (1991), overruled in part on

other grounds by State v. Bailey, 109 Wn. App. 1, 3, 34 P.3d 239 (2000). The

totality of the circumstances includes factors such as the officer's training and

experience, the location of the stop, the conduct of the person detained, the

purpose of the stop, the amount of physical intrusion upon the suspect's liberty,

and the length of time the suspect is detained. State v. Acrev, 148 Wn.2d 738,

747, 64 P.3d 594 (2003).

       Gibson argues that the description in this case "was so vague and general

that it did not provide reasonable suspicion to detain him. .. ." Brief of Appellant

at 6. He cites United States v. Brown. 448 F.3d 239 (3d Cir. 2006), in support. In

Brown, the sole evidence to support the Terry stop was a description of the

robbery suspects that, aside from race, was "hardly close" to the defendants.

Brown. 448 F.3d at 248. In that case, the suspects were described as "African-

American males between 15 and 20 years of age, wearing dark, hooded

sweatshirts and . .. one male was 5' 8" and the other was 6'." \± at 247-48. But

the defendants were 28 and 31 years old, both with full beards, while the

description made no mention of any facial hair. Id. at 248. The court concluded:
No. 69951-2-1/5


"What we have is a description that, while general, is wildly wide of the target. By

no logic does it, by itself, support reasonable suspicion." Id.

       This case is unlike Brown. Here, Officer Kowalchyk did not rely solely on a

general description that was "wildly wide of target." ]g\ Although the age

discrepancy was significant, the trial court specifically found that Gibson

appeared much younger than his actual age. Thus, Gibson generally fell within

the bounds of the description as to age, race and carrying a backpack. Moreover,

Officer Kowalchyk relied on other factors in addition to a general description.

Gibson was in close proximity to the crime scene within minutes of the report of a

burglary. He was the only black male in the area carrying a backpack and, when

first observed, he appeared to be stuffing a dark piece of clothing into it. Further,

when Officer Kowalchyk approached Gibson with emergency lights activated and

made eye contact, Gibson's response was evasive. He continued to quickly walk

away even though the officer "told him a couple of times to stop." VRP (1/10/13)

at 23-24.

       We conclude that the totality of the circumstances in this case is sufficient

to support a reasonable suspicion that Gibson had been involved in the burglary.

Accordingly, the stop was lawful and the evidence subsequently discovered was

properly admitted in Gibson's trial.

       Gibson also argues that the trial court committed reversible error when it

failed to timely enter findings of fact and conclusions of law after the evidentiary

hearing. Gibson is correct that the trial court was required by CrR 3.6(b) to enter

findings after the hearing. It did so, albeit on August 28, 2013, several months

after its ruling on the motion while this appeal was pending.
No. 69951-2-1/6


       But the delay in the entry of the findings does not in itself warrant reversal.

Findings of fact and conclusions of law may be submitted while an appeal is

pending if there is no prejudice to the defendant by the delay and no indication

that the findings and conclusions were tailored to meet the issues presented on

appeal. State v. Quincv. 122 Wn. App. 395, 398, 95 P.3d 353 (2004). The

dispositive question is whether the delay in entry of the findings or their content

was prejudicial to Gibson. Gibson's only claim of prejudice is that "this Court is

left with merely an oral record from which to review the trial court's ruling, which

... is not the final order of the [trial] court." Brief of Appellant at 13. But the filing

of the trial court's written findings of fact and conclusions of law, although

delayed, alleviates this concern. Because Gibson alleges no other harm from this

delay, neither reversal nor remand is warranted, jd.

       Affirm.




WE CONCUR:
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