I concur with the decision of the majority, insofar as it concludes that the court of appeals decision affirming the harassment conviction in *Page 23
"case two" should be affirmed. I also agree with the majority's conclusion that the trial court erred in failing to make a finding on an ultimate fact in "case one" — whether Alvarez's conduct placed the alleged victim in reasonable fear that the threat would be carried out. I part company with the majority only over the remedy it fashions for the trial court's failure to adhere to the juvenile court rule requiring entry of sufficient findings and, therefore, I dissent.
In my judgment, the appropriate remedy for the juvenile court's failure to enter sufficient findings is reversal of the conviction and dismissal of the charge. That is the position that was taken by Division Three of the Court of Appeals in a similar case, State v. Pena, 65 Wn. App. 711, 715-16, 829 P.2d 256 (1992). In Pena, the court observed that JuCR 7.11(d) requires the juvenile court to enter written findings and conclusions and to state in the findings the "ultimate facts as to each element of the crime." Pena, 65 Wn. App. at 715. The consequence of a court's failure to adhere to this rule, that court held, is dismissal. See also State v. Fellers, 37 Wn. App. 613, 616,683 P.2d 209 (1984).
The majority cites to State v. Royal, 122 Wn.2d 413,858 P.2d 259 (1993) for the proposition that the defendant has the burden of demonstrating prejudice arising from the trial court's failure to timely enter findings of fact. In my opinion, Royal is distinguishable from the instant case in that we are here concerned with a trial court's failure to find an essential element of a crime, rather than simply the tardiness of the trial court in entering its findings. Logically, it can be said that a defendant suffers prejudice when the State is given an opportunity, long after a trial has ended, to obtain additional findings to supplement findings that seemingly acquitted the defendant. Such prejudice, in my opinion, exceeds the prejudice a defendant suffers when adequate findings are merely filed late, as was the case in Royal. While the prejudice in either instance does not run afoul of the double jeopardy protection *Page 24 of the U.S. Constitution,39 in the latter case it is substantial nonetheless, and as a matter of state law should be sufficient to justify dismissal for noncompliance with JuCR 7.11(d).
The majority declines to adopt the Pena remedy for a failure to find, and instead takes the view that Division One of the Court of Appeals took in State v. Souza, 60 Wn. App. 534, 541,805 P.2d 237, review denied, 116 Wn.2d 1026 (1991). In Souza, the court concluded that an appropriate remedy is a remand for entry of additional findings, provided there is sufficient evidence to support the missing finding. Like the Pena court, I find myself in disagreement with the result reached by theSouza majority. Rather, I agree with the dissenting judge inSouza, who stated in part:
Souza, 60 Wn. App. at 546 (Forrest, J., dissenting) (footnote omitted). *Page 25But how is the appellate court to know when a failure to find is an oversight, and when it accurately represents the judge's view of the evidence at the time of decision? The entry of findings and conclusions is a considered and formal judicial act vastly different from the informal oral opinion judges give at the end of a case. The prosecutor, who normally prepares the findings, has time to do a thoughtful job, and the court has time to consider whether these are the findings it indeed wishes to make. Under such circumstances, it is inappropriate for the appellate court to assume that some mere "trial error" has occurred. . . . We should not adopt a rule that allows an appellate court to go behind the findings to speculate on the reason for the absence of a finding as to an element of the crime.
There is no more reason to remand to let a prosecutor urge a judge to make a finding he did not make than it would be to allow a defendant to urge the judge to delete a finding he did make. A judge's failure to find an element is more significant than a prosecutor's failure to charge an element; yet the latter mandates reversal.
I would add another policy reason favoring strict enforcement of JuCR 7.11(d). The soundness of the policy is made manifest by the facts here. David Alvarez (d.o.b. Feb. 1, 1974) was sixteen years of age in 1990 when he was charged with violating the Anti-Harassment Act of 1985. RCW 9A.46. It is now 1995 and Alvarez is twenty-one. Despite the fact that Alvarez is no longer a juvenile, the majority remands this case to the juvenile court judge who presided at trial, with directions to enter a finding that should have been entered at the conclusion of the trial. If and when that finding is entered, Alvarez, presumably, would have the right to seek review of the sufficiency of the evidence supporting that additional finding. All of these procedures will take time, and it is difficult to predict at what point in the future this case will finally be resolved. We can, however, be certain that when it is, Alvarez will have long since ceased to be a juvenile. It simply makes little practical sense to now remand this matter to juvenile court.40
Findings of fact in juvenile court cases are to be entered following trial, and they should be complete. If they are not, and an ultimate fact is not found, dismissal should follow. That is good public policy in any case, but it is particularly good policy in juvenile cases for the reasons I have articulated. It is also a policy that is consistent with the rule in civil cases that the failure of the trial court to make an express finding on a material fact is deemed to be a finding against the party having the burden of proof. Golberg v. Sanglier, 96 Wn.2d 874,880, 639 P.2d 1347 (1982). The State had the burden of proof here. Under the findings entered by the trial court it did not meet that *Page 26 burden. The State should not have a second bite at the apple, five years or more after its first bite. I would reverse and dismiss the charge.
DURHAM, C.J., and MADSEN, J., concur with ALEXANDER, J.