Opinion
Nos. 36338-1-II; 36345-3-II; 36348-8-II.
August 19, 2008.
Appeals from a judgment of the Superior Court for Wahkiakum County, No. 05-1-00035-5, Michael J. Sullivan, J., entered May 14, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Bridgewater, J.
The State appeals the trial court's ruling suppressing evidence related to charges filed in the criminal prosecution of three defendants, Harold E. Doering, Myrna J. Doering, and their son, Wyatt E. Doering. Because the appellant has the burden of producing a record sufficient for our review and the State has declined to provide a report of the proceedings, the record is insufficient to allow for review and we affirm.
DISCUSSION
The Appellate Record
As the appellant, the State bears the burden of providing this court with a sufficient record of the evidence relevant to review the issues raised on appeal. State v. Vazquez, 66 Wn. App. 573, 583, 832 P.2d 883 (1992); State v. Garcia, 45 Wn. App. 132, 140, 724 P.2d 412 (1986) (citing State v. Jackson, 36 Wn. App. 510, 516, 676 P.2d 517, aff'd, 102 Wn.2d 689, 689 P.2d 76 (1984)). The State filed a statement advising this court that it was not going to produce a verbatim agreed or other report of the trial court's pretrial proceedings. RAP 9.2(a). The State relies instead on the lower court's findings of fact and conclusions of law, which appear in our record as Clerk's Papers (CP) at 133-38 (Wyatt Doering), 115-20 (Harold Doering), 61-66 (Myrna Doering).
The proceedings included the trial court's site visit of the respondents' home. According to statements made during oral argument, the deputy prosecutor was present during the site visit.
The State did not assign error to any of the trial court's findings of fact. And it concedes, as it must, that these facts are verities on appeal. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). The State assigned error to the trial court's conclusions of law (1 and 4 through 9), contending that the unchallenged findings do not support them. Unfortunately, the State misunderstands the scope of our review. We do not apply the standard applicable to conclusions of law (whether the findings of fact support the conclusion) to findings of fact contained in conclusions of law. State v. Marcum, 24 Wn. App. 441, 445, 601 P.2d 975 (1979) (quoting State v. Pierce, 23 Wn. App. 664, 669, 597 P.2d 1383 (1979)). We review challenged findings of fact improperly denominated as conclusions of law under the standard applicable to findings of fact, not the standard applicable to conclusions of law. Marcum, 24 Wn. App. at 445 (quoting Pierce, 23 Wn. App. at 669).
Generally, we review conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), overruled on other grounds by Brendlin v. California, ___ U.S. ___, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).
The challenged conclusions read as follows:
1. The deputy had permission to enter the residence for the sole purpose of completing the hulk vehicle paperwork.
. . . .
4. From the initial vantage point where the deputy entered the home and placed the hulk vehicle paperwork on a speaker, the contents of the glass cabinet are not plainly visible. Therefore, the deputy could not view the contents of the cabinet in "plain view," and the "plain view" exception to the warrant requirement does not apply.
5. The deputy's movements once inside the home from the area of the speaker to the far side of the room beyond the davenport were not reasonable. The movement of the deputy about the residence after setting down the hulk vehicle paperwork (even if innocent in nature) was totally unnecessary to accomplish the purpose for which the deputy had entered the home, that being to sign hulk vehicle papers.
6. . . . The deputy's movement and actions after setting down the hulk vehicle paperwork are per se unreasonable as they constituted an unlawful search of [the Doerings'] residence. Such actions, viewed by an objective standard, were in violation of provisions of the Fourth Amendment to the United States Constitution and Article 1, § 7 of the Washington Constitution, both of which guard against unreasonable searches and seizures.
7. Moreover, the deputy did not have a lawful right to be in the location from which he observed the contents of the glass faced cabinet. Therefore, the deputy was not in a location in which he had a lawful right to be and the "plain view" exception to the warrant requirement does not apply. These actions, viewed by an objective standard, were also in violation of the provisions of the Fourth Amendment to the United States Constitution and Article 1, § 7 of the Washington Constitution, both of which guard against unreasonable searches and seizures.
8. The affidavit in support of the search warrant in this case cannot form the basis for the lawful issuance of a search warrant as the information upon which it was based was not lawfully observed in "plain view," the result of a lawful search, or some exception to the warrant requirement.
9. All evidence seized by the State of Washington by and through either Deputy Howell's testimony or the search warrant issued in this case is suppressed.
CP (Wyatt Doering) at 136-38.
Portions of these conclusions are actually findings of fact. "The deputy had permission to enter the residence for the sole purpose of completing . . . paperwork" in conclusion of law 1 is actually a finding of fact. CP (Wyatt Doering) at 136. Although it is improperly denominated as a conclusion of law, we apply the standard applicable to findings of fact. Marcum, 24 Wn. App. at 445 (quoting Pierce, 23 Wn. App. at 669). Therefore, we look to the record for substantial evidence supporting the findings. Marcum, 24 Wn. App. at 445 (quoting Pierce, 23 Wn. App. at 669). Here, the State decided not to provide this record and we are unable to determine whether substantial evidence supports those findings of fact contained within the challenged conclusions of law. Vazquez, 66 Wn. App. at 583.
Additional facts contained within the conclusion include: the contents of the cabinet were not visible to the deputy when he entered the house to sign the paperwork, and the deputy's action of setting down the paperwork and walking across the living room to the elk antlers was not necessary to accomplish the signing of the paperwork.
On the record before us, the trial court's suppression order must stand and we affirm accordingly.
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.
BRIDGEWATER, J. and VAN DEREN, C.J., concur.