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Washington v. Souza

as amended: February 11, 1991.

THE STATE OF WASHINGTON, RESPONDENT
v.
ANTHONY SOUZA, APPELLANT



Winsor, J.*fn* Baker, J., concurs. Forrest, J., dissents by separate opinion.

Author: Winsor

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.*fn1

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 at [ 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 ...


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