                                                                        FILED
                                                                    FEBRUARY 6, 2018
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 34960-8-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
JACOB NOEL BUCHE,                             )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, J. — Jacob Buche appeals his convictions following a bench trial for

second degree burglary and bail jumping. He assigns error to the trial court’s failure to

enter written findings of fact and conclusions of law and, for the first time on appeal,

objects to a police officer’s testimony that he refused to consent to a warrantless search.

He contends, alternatively, that his trial lawyer provided ineffective assistance of counsel

by failing to object to the evidence.

       We find no error other than the trial court’s failure to comply with the important

requirement of CrR 6.1(d) that it enter findings and conclusions following a bench trial.

Delayed entry of findings and conclusions is bad practice because it can create doubt

whether the trial court accurately recalls the evidence and its reasons for a decision. See

State v. Garcia, 146 Wn. App. 821, 826, 193 P.3d 181 (2008) (citing State v. Cannon,
No. 34960-8-III
State v. Buche


130 Wn.2d 313, 329, 922 P.2d 1293 (1996)). When a failure to enter findings and

conclusions is raised by a defendant’s brief on appeal, the State should cause the required

findings and conclusions to be entered promptly, to avoid even further delay. To

reinforce the importance of the rule, we will ordinarily remand for compliance without

evaluating whether the error was harmless.

       We will make an exception in this case but with a reminder to the court and

prosecutor to comply in the future. The error is harmless. We affirm.

                    FACTS AND PROCEDURAL BACKGROUND

       In early January 2016, Moses Lake Police Officer Adam Munro was responding to

the report of a burglary of a residential garage when he noticed a white Jeep with silver

and gold rims that matched the description of a Jeep a neighbor had seen around the time

of the burglary. The burgled garage was located in a cul-de-sac, which is where the

neighbor had seen the Jeep. He had not seen the Jeep in the neighborhood before, and

described it as unique and as looking “out of place.” Report of Proceedings (RP) at 51.

The neighbor had described the Jeep’s occupants—a man and a woman—as oddly

attired, mostly in black and with their faces largely obscured by scarves and hats.

       When Officer Munro spotted the Jeep, it was parked on the side of the road. Its

occupants—Jason Buche and a female passenger—matched the description of the persons

the victims’ neighbor had seen in the suspicious Jeep.



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No. 34960-8-III
State v. Buche


       The officer approached the Jeep and spoke with Mr. Buche, explaining why he

stopped. Mr. Buche denied involvement and told the officer he was stopped because the

Jeep had broken down. With the Jeep inoperative, Officer Munro contacted James

Nelson, co-owner of the burgled garage, and had him drive the neighbor-witness by the

Jeep, to see if he could identify it. The neighbor-witness told Officer Munro he was 90

percent sure the Jeep and female passenger were the ones he saw in the cul-de-sac and

was “pretty sure” (the neighbor-witness placed it at about 50 percent sure) that it was Mr.

Buche he had seen. RP at 139. Based on that and items in plain sight within the Jeep that

matched items stolen from the garage, Officer Munro impounded the Jeep, applied for a

search warrant, and arrested Mr. Buche.

       It was Mr. Nelson’s wife, Sumer, who had first noticed signs that the family

garage had been burglarized. She had returned home after about an hour’s absence and

noticed that the family dog was upset, the garage door was open, items were missing

from the garage, and there were footprints inside the garage and in the snow outside that

had not been there when she left. Officers photographed the footprints that could still be

seen in the snow and later presented testimony that the tread pattern on the shoes Mr.

Buche was wearing, unlike the shoes of his female passenger, was consistent with the

footprints in the snow. And an officer who had transported Mr. Buche and his female

passenger to the Grant County jail reported that during the drive Mr. Buche asked his



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No. 34960-8-III
State v. Buche


companion if she had said anything he should know about, she answered no, and he then

told her he was sorry and it was not her fault.

       Mr. Buche was charged with burglary in the second degree. He failed to appear at

an omnibus hearing that was scheduled for July 11, 2016, and the information was

amended to add a charge of bail jumping.

       The charges against Mr. Buche were tried to the court. During the State’s direct

examination of Officer Munro, it elicited the following testimony about the officer’s

search of the vehicle:

       [Prosecutor]: Did you—ask him if you could search the vehicle?
       [Officer Munro]: I did.
       [Prosecutor]: Okay. What did he do in response to that?
       [Officer Munro]: He initially opened the rear driver’s side door of the
       vehicle.
       [Prosecutor]: Okay.
       [Officer Munro]: Then indicated no, that I could not search the vehicle.
       [Prosecutor]: Okay. Did you see anything of interest when he opened
       the door[?]
       [Officer Munro]: I saw some just mechanic’s tools in the vehicle.

RP at 137-38. Mr. Buche’s attorney did not object.

       In closing, Mr. Buche’s lawyer argued that the State’s case was entirely

circumstantial and weak. The State argued that while no one saw Mr. Buche actually

enter the victims’ garage, the circumstantial evidence against him was strong.

       At the conclusion of the closing arguments, the trial court took a 15 minute break

and then announced its oral decision, explaining why it viewed the evidence as sufficient.


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No. 34960-8-III
State v. Buche


The court made no reference to the fact that Mr. Buche had revoked his consent for

Officer Munro to search the Jeep. It found Mr. Buche guilty of both charges.

       Mr. Buche was sentenced to 59½ months for the burglary and 38 months for the

bail jumping, to run concurrently. No written findings of fact or conclusions of law were

entered. Mr. Buche appeals.

                                        ANALYSIS

       Mr. Buche contends the judgment and sentence must be vacated and remanded

because the trial court failed to enter written findings of fact and conclusions of law as

required by CrR 6.1(d). He also contends that the evidence of his withholding of consent

to a search of the Jeep violated his federal and state constitutional rights and,

alternatively, that he received ineffective assistance of counsel when his trial lawyer

failed to object.

             1. FAILURE TO ENTER FINDINGS OF FACT AND CONCLUSIONS OF LAW

       CrR 6.1(d) provides that “[i]n a case tried without a jury, the court shall enter

findings of fact and conclusions of law.” The findings and conclusions are important

because they “enable an appellate court to review the questions raised on appeal.” State

v. Head, 136 Wn.2d 619, 622, 964 P.2d 1187 (1998). Because an oral decision “‘has no

final or binding effect unless formally incorporated into the findings, conclusions, and

judgment,’” the remedy for a violation of the rule is to remand for entry of findings and



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No. 34960-8-III
State v. Buche


conclusions. See id. (quoting State v. Mallory, 69 Wn.2d 532, 533-34, 419 P.2d 324

(1966)).

       A failure to comply with the requirements of CrR 6.1(d) is subject to harmless

error analysis, however, even though we usually remand for compliance. State v. Banks,

149 Wn.2d 38, 43-44, 65 P.3d 1198 (2003). “‘An error is not harmless beyond a

reasonable doubt where there is a reasonable probability that the outcome of the trial

would have been different had the error not occurred . . . . A reasonable probability exists

when confidence in the outcome of the trial is undermined.’” Id. at 44 (quoting State v.

Powell, 126 Wn.2d 244, 267, 893 P.2d 615 (1995)). In Banks, findings following a

bench trial failed to address whether the defendant had “knowingly” possessed a firearm,

a necessary element of unlawfully possessing it. Because it was clear on review of the

record that “the trial court took [the defendant]’s knowledge into account,” the court

explained there was “no reasonable probability that the outcome would differ if . . . the

court had entered an express finding on knowledge.” Id. at 46. Because the error was

harmless, the court affirmed the conviction and did not remand. Id. at 47.

       In the analogous context of decisions on motions to suppress, CrR 3.5(c) and

3.6(b) require entry of written findings of fact and conclusions of law, yet Washington

decisions hold that error under those rules “‘is harmless where the trial court’s oral

findings are sufficient to permit appellate review.’” State v. Riley, 69 Wn. App. 349,

353, 848 P.2d 1288 (1993) (quoting State v. Smith, 67 Wn. App. 81, 87, 834 P.2d 26

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No. 34960-8-III
State v. Buche


(1992), rev’d in part on other grounds, 123 Wn.2d 51, 864 P.2d 1371 (1993), overruled

by State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), abrogated in part on other

grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466

(2006)).

       Washington Pattern Instruction: Criminal § 60.04 correctly identifies the elements

of burglary in the second degree as being that (1) a defendant entered or remained

unlawfully in a building, other than a dwelling, (2) with intent to commit a crime against

a person or property therein, and (3) this act occurred in Washington. 11A WASHINGTON

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL § 60.04 (4th ed.

2016); RCW 9A.52.030. It was undisputed by Mr. Buche that the crime took place in the

state of Washington and that items stolen from the victims’ garage were found in the Jeep

he was driving on the day the burglary was reported. In closing, defense counsel stated

that stolen tools “end up in the back of [Mr. Buche’s] truck, or whoever’s truck that is.

And that raises a good question—maybe this is possession of stolen property, if he has

knowledge that it’s stolen.” RP at 212-13. What Mr. Buche disputed is that he was ever

in the Nelson’s garage.

       The facts on which the trial court relied for its inference that Mr. Buche had

entered the garage were identified in its oral decision. They include the fact that Ms.

Nelson came home after a short absence to find her garage door open, items missing from

her garage, unexplained footprints, and a distressed dog; that a neighbor from across the

                                             7
No. 34960-8-III
State v. Buche


street had noticed a unique and unfamiliar Jeep leaving the cul-de-sac shortly before; that

items stolen from the garage were found in a Jeep meeting the neighbor’s description that

had broken down nearby; that the neighbor was quite certain in his identification of the

Jeep and its female passenger, although somewhat less confident in his identification of

Mr. Buche; that shoe prints outside the burgled garage exhibited a tread similar to that on

the soles of the shoes being worn by Mr. Buche but unlike the soles of the shoes of his

female passenger; and that Mr. Buche told his female passenger en route to the county

jail that he was sorry and it was not her fault. As to the bail jumping charge, the trial

court announced that it based its finding of guilt on the exhibits and recordings of court

proceedings and the testimony of the court clerk.

       Here, as in Banks, it was clear what evidence the trial court took into account in

finding that the State had proved the elements of the crimes charged. There is no

reasonable probability that the outcome would have been different if the court had

complied with the requirement to enter written findings.

      2. EVIDENCE THAT MR. BUCHE REFUSED TO CONSENT TO WARRANTLESS SEARCH

       Officer Munro provided brief testimony about Mr. Buche’s revocation of his

consent to a search that Mr. Buche now finds objectionable, but that he did not object to

at trial. We first consider whether to review this unpreserved error. Ordinarily, we will

not. State v. Guzman Nunez, 160 Wn. App. 150, 157, 248 P.3d 103 (2011), aff’d and

remanded, 174 Wn.2d 707, 285 P.3d 21 (2012) (citing RAP 2.5(a) and State v. Scott, 110

                                              8
No. 34960-8-III
State v. Buche


Wn.2d 682, 685, 757 P.2d 492 (1988)). Mr. Buche argues persuasively that using refusal

to consent to a search as substantive evidence of guilt is unconstitutional, but he does not

contend that Officer Munro’s testimony was “manifest [constitutional] error,” which it

must be to qualify for consideration for the first time on appeal. RAP 2.5(a)(3); State v.

O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). Instead, Mr. Buche argues that if the

error was unpreserved, then his trial lawyer’s failure to object deprived Mr. Buche of his

constitutional right to effective assistance of counsel, a claim that may be made for the

first time on appeal. Br. of Appellant at 10 (citing State v. Nichols, 161 Wn.2d 1, 9, 162

P.3d 1122 (2007)).

       Effective assistance of counsel is guaranteed by both the Sixth Amendment to the

United States Constitution and article I, section 22 of the Washington Constitution.

Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984); State v. Mierz, 127 Wn.2d 460, 471, 901 P.2d 286 (1995). To demonstrate

ineffective assistance of counsel, a defendant must show two things: “(1) defense

counsel’s representation was deficient, i.e., it fell below an objective standard of

reasonableness based on consideration of all the circumstances; and (2) defense counsel’s

deficient representation prejudiced the defendant, i.e., there is a reasonable probability

that, except for counsel’s unprofessional errors, the result of the proceeding would have

been different.” State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

When a claim can be disposed of on one ground, this court need not consider both

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No. 34960-8-III
State v. Buche


prongs. Strickland, 466 U.S. at 697. A claim for ineffective assistance of counsel

presents a mixed question of law and fact, which this court reviews de novo. State v.

Cross, 156 Wn.2d 580, 605, 132 P.3d 80 (2006).

       As the State points out, Officer Munro testified that Mr. Buche first responded to

his request to search the Jeep by opening the rear driver’s side door, and the officer saw

mechanic’s tools inside the vehicle. Because tools were among the items reported

missing from the victims’ garage, this was relevant, admissible evidence. Yet the

remaining evidence of stolen items found in the Jeep was obtained through execution of a

search warrant. Officer Munro’s testimony that Mr. Buche revoked his consent explained

this discrepancy in when and how the stolen property was discovered.

       This was a bench trial. We presume in a bench trial that the court relies only on

admissible evidence in reaching a decision. State v. Wolfer, 39 Wn. App. 287, 292, 693

P.2d 154 (1984), abrogated in part on other grounds by State v. Heritage, 152 Wn.2d

210, 95 P.3d 345 (2004). A defense lawyer can reasonably presume that as well. Mr.

Buche’s lawyer knew that if the State later argued that the court should draw a negative

inference from his client’s revocation of consent, he could object. Unsurprisingly, the

State never made that improper argument. Unsurprisingly, the trial court did not treat the

revocation of consent as relevant. Mr. Buche’s lawyer merely withheld objection to

testimony he knew explained otherwise incongruent evidence. He reasonably believed it



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No. 34960-8-III
State v. Buche


would not be relied on by the court for an improper purpose, and it was not. That was not

deficient representation.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




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