IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON Respondent,

v. CLAYTON DANIEL GERLACH, Appellant. No. 71416-3-1 DIVISION ONE t-o U'i CZ-' c=> '~*.cz

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UNPUBLISHED OPINION == CD FILED: May 4, 2015 Trickey, J. — Clayton Gerlach appeals from the judgment and sentence following a bench trial. He argues that the evidence was insufficientto sustain his conviction of residential burglary and that he was prejudiced by the trial court's entry of delayed findings of fact and conclusions of law. We disagree and affirm
the conviction. FACTS On October 27, 2011, Mark Conner was returning to his residence in Arlington, Washington at approximately 10 a.m. after stopping at a nearby restaurant. As he was approaching his house, he noticed a white sports utility vehicle (SUV) pull into his driveway. The SUV was parked on Conner's property about halfway between the house and the entrance to the driveway. Conner parked his vehicle in the driveway and approached the driver sitting inside the white SUV. Conner noticed that the driver had short black hair and was wearing

a black leather coat over a white T-shirt. Conner asked the driver if he needed help. Thedriver told Conner that he was having engineproblems, after which he honked the horn to his vehicle. At that point, Conner became suspicious and said he was going to call 911.No. 71416-3-1/2 When Conner left his house that morning, he had turned the lights off, locked the front door and the screen door. But when he entered the house to call 

### 911, heobserved that a light was on inside, the screen door was open, and the front door was unlocked. Conner also discovered that many items had been 

### displaced and the house was in disarray. Conner had not given permission to anyone to enter his home. 

### Conner ran outside. He planned to obstruct the SUV in the driveway, but 

### the SUV swiftly pulled out of the driveway once he emerged outside. Conner noticed a pinktrailer hitch attached to the vehicle. 

### The driver ofthe SUV honked thehorn once again. As Connerwas calling 

### 911, he saw aman scurry across his front yard and into some bushes. The man entered the SUV, which immediately sped offdown the street. 

### Conner provided descriptions of the vehicle and the driver to the police. 

## Shortly thereafter, Snohomish County Police Officer Thomas Morris observed 

## Clayton Gerlachwalking onthe sideofaroad located between one andtwo miles from Conner's house. According to Officer Morris, it was dangerous to walk on 

### thatroad, and was veryunusualto seepedestriansthere. OfficerMorris observed that Gerlach's face was red, as if he had been exerting himself. Nevertheless, OfficerMorris did not stop Gerlach butcontinued to searchforthe vehicle Conner 

### had described—a white SUV with apinktrailer hitch. He soon found the vehicle 

## parked approximately 200 yards from where he had seen Gerlach walking. The SUV was parked at an angle and there were skid marks on the grass, as ifthe vehicle had skidded to astop. The SUVwas still warm, indicating thatthe vehicleNo. 71416-3-1/3 had been recently driven. Based on these observations, it appeared to Officer Morris that the vehicle had been abruptly stopped or "ditched" by the driver who wanted to flee the vehicle.1 As soon as he saw the vehicle, Officer Morris alerted other responding officers of the vehicle and the suspect and requested that they stop and detain Gerlach. Officer Kenneth Thomas stopped Gerlach on the side of the road. Officer Thomas noticed Gerlach was walking at a heightened pace and was not wearing 

### ajacket despite thecold weather. Gerlach was perspiring and breathing heavily. When Officer Thomas asked Gerlach where he was coming from, Gerlach was unable to answer. Gerlach said he was from Everett, but could not explain why he

was in the area that day. 

### Conner subsequently identified theSUV by its color and style, from anitem 

### hanging from the rearview mirror, and from the distinctive pinktrailer hitch on the
rear ofthevehicle. Conner then identified Gerlach as theman heencountered in the driveway. A K-9 officer arrived to the scene. The dog followed a scent trail from Gerlach's vehicle to the location where Gerlach wasdetained, about one halfmile from theSUV. However, the K-9 officerwas unable tolocate the secondsuspect. 

### The State charged Gerlach with one count ofresidential burglary and one 

### count ofbailjumping. Gerlach stipulated to a bench trial on agreed documentary evidence on the bail jumping charge. He waived his right to ajury trial on the residential burglary charge.

Report ofProceedings (RP) (11/18/2013) at 70. 3No. 71416-3-1/4 A bench trial took place in November 2013. The State called Conner as a witness, along with several of the investigating officers. Gerlach testified that he
was in Arlington on the day in question to apply for ajob. He said that he ended up in Conner's neighborhood because he once had friends who lived in that neighborhood. He testified that he took a wrong turn in that neighborhood. According to Gerlach, he was experiencing car trouble that day so he pulled into Conner's driveway. He left when Conner began appearing suspicious of him. Afterwards, Gerlach testified that he got lost and pulled over on the road because the engine failed. At the conclusion of the trial, the trial court found Gerlach guilty on both 

### charges. The trial court entered findings offact and conclusions oflaw as to the residential burglary conviction on September 3, 2014, and supplemental findings

on October 7.2014.2 Gerlach appeals. ANALYSIS Sufficiency ofthe Evidence Gerlach contendsthatinsufficient evidence supported thetrial court's guilty 

### verdict. This is so, heasserts, because theState did not establish that hewas the principal oraccomplice in the crime. Wedisagree. 

### The due process clauses ofthe federal and state constitutions require that 

### the State prove every elementofacrime beyond areasonable doubt. Apprendi v. New Jersey. 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); 2

Thetrial courtentered separatefindings offact and conclusions oflawwith regard to the bailjumping charge. 4No. 71416-3-1/5 U.S. Const, amend. XIV; Wash. Const, art. I, § 3. "[T]he critical inquiry on review ofthe sufficiency of the evidence to support a criminal conviction must be

... to determine whether the record evidence could reasonably support a finding ofguilt 

### beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). "[T]he relevant question is whether, after viewing 

### the evidence in the light mostfavorable to the prosecution, anyrational trieroffact could have found theessential elements ofthe crime beyond a reasonable doubt." Jackson, 443 U.S. at 319. 

### By challenging the sufficiency ofthe State's evidence, Gerlach admits the truth of the State's evidence and all reasonable inferences from that evidence. 

### Statev.Kintz, 169Wn.2d 537, 551, 238 P.3d 470 (2010). Circumstantial evidence 

### and direct evidence can be equally reliable. State v. Delmarter, 94 Wn.2d 634, 

### 638, 618 P.2d 99 (1980). We deferto the fact finder on questions ofconflicting 

## testimony, credibilityofwitnesses, andthe persuasiveness oftheevidence. State
v. Killinasworth. 166 Wn. App. 283, 287, 269 P.3d 1064 (2012). 

### The State charged Gerlach with residential burglary in violation of RCW 9A.52.025. Tofind Gerlach guilty ofresidential burglary, the Statewas required to 

## prove that, "with intent to commit acrime against aperson or property therein, [Gerlach or an accomplice] enter[ed] or remained] unlawfully in adwelling other than a vehicle." RCW 9A.52.025. 

### Under Washington's complicity statute, an individual is guilty of a crime 

## committed by another ifhe or she "is an accomplice ofsuch other person in the commission ofthe crime." RCW 9A.08.020(2)(c). Aperson is an accomplice if,No. 71416-3-1/6 with knowledge that it will promote or facilitate the commission of the crime, he encourages or aids another in committingit. RCW 9A.08.020(3)(a)(i) and (ii). "The word 'aid' means all assistance whether given by words, acts, encouragement, support, or presence." 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 10.51, at 217 (3d ed. 2008). Intent may be inferred where the circumstances indicate such intent as a matter of logical probability. State v. Johnson, 159Wn. App. 766, 774, 247 P.3d 11 (2011). Specific knowledge ofeach element of the principal's crime need not be proved to convict a person as an accomplice. Statev. Roberts, 142 Wn.2d 471, 513, 14P.3d 713 (2000); Statev. Rice, 102 Wn.2d 120, 125, 683 P.2d 199 (1984). General knowledge of the crime issufficienttosupport afinding ofaccomplice liability. Roberts, 142 Wn.2d at513. Gerlach contends that insufficient evidence supported that he was an 

### accomplice in the burglary because, he asserts, there was no evidence that he had the intentto committhe crime or that he had knowledge that his actionswould aid the commission of the crime. He maintains that the only evidence implicating 

### him was his presence at the scene of the crime. In support of this contention, Gerlach cites to State v. Truong, where we noted: 

### Mere presence ofthedefendantwithoutaiding theprincipal—despite knowledge of the ongoing criminal activity—is not sufficient to establish accomplice liability. Rather, the State must prove that the defendant was ready to assist the principal in the crime and that he shared in the criminal intent of the principal, thus "demonstrating a 

### community ofunlawful purpose at thetime the actwas committed." 168 Wn. App. 529, 540, 277 P.3d 74(2012) (internal citations omitted). 

### The State proved that Gerlach had the intent to commit the burglary and 

### was ready to aid. Gerlach was not "merely present" atthe scene ofthe crime.No. 71416-3-1/7
The evidence shows that Gerlach honked the horn once Conner confronted him on his driveway. Gerlach honked the horn a second time when Conner returned outside after discovering his residence had been burglarized. Fromthese facts,
one could reasonably infer that Gerlach was attempting to alert the suspect of Conner's presence. Furthermore, Connertestified that the other suspect entered Gerlach's vehicle and the two men immediately fled the scene. A rational trier of fact could find beyond a reasonable doubt that Gerlach committed the crime of residential burglary as an accomplice. Belated Findings and Conclusions Gerlach next contends that he was prejudiced by the trial court's belated entry offindings offacts andconclusions oflaw. Wedisagree. 

### Gerlach filed his opening briefon July 7, 2014, challenging the sufficiency 

### ofthe evidence and asserting thatthetrial courtfailed toenterfindings offacts and conclusions oflaw. On September 3, 2014, thetrial court entered findings offact andconclusions oflaw. Thetrial courtfound Gerlach guilty ofresidential burglary and entered the following facts: 1. That on or about the 27th day of October 2011; 2. The Defendant, Clayton Gerlach; 3. Did enter or remain unlawfully in a dwelling with the intent to commit a crime oftheft; 4. That the defendant acted as an accomplice by assisting and 

### aiding anotherparty in the commission ofthis crime; and 5. Thatthe acts occurred in Snohomish County Washington.131 

### The trial court entered supplemental findings offact and conclusions oflaw 

### on October7, 2014. In the trial court's supplemental findings, the courtfound that

3Clerk's Papers (CP) at 98.No. 71416-3-1/8 Gerlach "knew that the unknown person had entered the residence without permission to steal property inside the residence," and that Gerlach "intended to aid and facilitate the unknown person's commission of the crime of residential burglary."4 The trial court also found not credible Gerlach's "explanation for his behavior, including his reasonfor being in the area and horn honking."5 Thetrial court concluded that Gerlach was guilty beyond a reasonable doubt as an accomplice of the crime. On October 16, 2014, the State asked this court to grant permission 

### pursuant to RAP 7.2(e) for the trial court to formally enter its findings offact and conclusions oflaw and supplemental findings. On October 31, 2014, wegranted 

### this request. Gerlachfiled his appellant's reply briefand supplemental assignment of error on December 5, 2014. 

### CrR 6.1(d) requires the trial court to enter written findings of fact and conclusions oflaw at the conclusion of a bench trial. Statev. Head, 136 Wn.2d 

### 619, 621-22, 964 P.2d 1187 (1998). This enables an appellate courtto reviewthe 

### questions raised on appeal. Head, 136 Wn.2d at 622. The proper remedy for failure to complywith CrR 6.1(d) is remand for entry ofwritten findings offact and conclusions oflaw. Head, 136 Wn.2d at 624. Reversal isonly appropriate where the defendant has established actual prejudice. Head, 136 Wn.2d at 624. 

### Although the practice ofsubmitting late findings offact and conclusions oflaw is disfavored, findings and conclusions may be submitted and entered even while an

4 CP at 96. 5 CP at 96.No. 71416-3-1/9 appeal is pending ifthe defendant is not prejudiced bythe belated entry of findings. State v. McGarv, 37 Wn. App. 856, 861, 683 P.2d 1125 (1984), "We will not infer prejudice . . . from delay in entry of written findings of fact and conclusions of law." Head, 136 Wn.2d at 625. Rather, "a defendant might be able to show prejudice resulting from the lack ofwritten findings and conclusions where there is strong indication thatfindings ultimately entered have been 'tailored' to meet issues raised on appeal." Head, 136 Wn.2d at 624-25. Gerlach argues that he was prejudiced bythe belatedfindings because the 

### findings were tailored tohis argument on appeal. He points tothetrial court's oral 

### ruling in which thecourt did not recite any facts to support its conclusion that he

was guilty of residential burglary: I have had a chance to review my notes as well as all the exhibits that were admitted in this case, and Iam ready to make my decision. So, in this matter Ifind Mr. Gerlach guilty of the charge. I've 

### already found him guilty of the bail jumping charge, but Ifind him guilty ofthecharge ofresidential burglary.[6] Gerlach relies on the well settled principle in Washington that a defendant 

### is not prejudiced by a trial court's delayed findings if the findings track its oral decision. State v. Cannon, 130Wn.2d 313, 329-30, 922 P.2d 1293 (1996); State 

### v, Rjtter, 149Wn. App. 105, 108-9, 201 P.3d 1086 (2009); Statev. Portomene, 79 

### Wn. App. 863, 905 P.2d 1234 (1995)). However, Gerlach has failed to identify any 

### legal authority establishing that belated written findings following a trial court's incomplete oral decision results in prejudice.

6Report of Proceedings (11/26/2013) at 2. 9No. 71416-3-1/10 Indeed, the trial court's decision did not change when itentered the findings of fact and conclusions of law. At trial, the State's theory of the case was that Gerlach was an accomplice to the burglary by acting as a lookout and the get away driver. Defense counsel argued thatGerlach was encountering cartrouble andtherefore was merely present as an innocent bystanderto the crime.7 Based on these opposing theories, the trial court was required to make a credibility determination. Its oralruling finding Gerlach guilty demonstrates that the trial court did not believe Gerlach's testimony that he was innocently present in the 

### neighborhood; otherwise, the trial courtwould have acquitted Gerlach. In the trial court's supplemental findings, it determined that "[t]he defendant's explanation for his behavior, including his reason for being in the area and the horn honking was 

### not credible."8 The findings did not deviate from the court's original oral decision. 

### Acomparison ofthe trial court's findings offact and Gerlach's briefing on appeal reveals no strong indication that the findings were tailored to the issue raised by Gerlach on appeal. Affirmed.

WE CONCUR:

7 RP (11/18/2013) at 127. 8 CP at 96. 

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