FILED
OCTOBER 19, 2021
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. 37561-7-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
STEVEN EDWARD SHUDA, )
)
Appellant. )
LAWRENCE-BERREY, J. — Steven Shuda appeals after the trial court convicted him
of two counts of third degree assault. The trial court’s findings do not include a finding
that Shuda acted intentionally. Because Shuda was not prejudiced by the insufficient
findings, we vacate his convictions and remand for the trial court to enter supplemental
findings based on the evidence presented at trial.
FACTS
Officers Aaron Nelson and Benito Chavez responded to Shuda’s parent’s house
because Shuda was talking to a wall and threatening to kill people. The crisis operator
No. 37561-7-III
State v. Shuda
ordered the officers to bring Shuda in for a medical evaluation. When the officers
attempted to arrest Shuda, he resisted and scuffled with them.
The State charged Shuda with two counts of third degree assault. Shuda waived
his right to a jury trial.
At trial, the State’s witnesses testified somewhat inconsistently about the scuffle.
They agreed, however, that Shuda did not want to be arrested, that he fought back, and
that he hit or kicked one or both officers. Shuda denied intentionally hitting or kicking
either officer. He explained he lost his balance after the officers used a taser on him and
what looked like an intentional kick was not.
The trial court found Shuda guilty of two counts of third degree assault. In its
written findings, the trial court found, “When the officers attempted to arrest Mr. Shuda,
Mr. Shuda struck Officer Chavez in the head and kicked Officer Nelson.” Clerk’s Papers
(CP) at 55. The court omitted any finding on the contested issue—whether Shuda acted
with intent.
At sentencing, the court imposed a standard range sentence of 14 months, but
neglected to impose community custody. The court subsequently corrected this in a
separate order and imposed 12 months of community custody. In doing so, it did not
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No. 37561-7-III
State v. Shuda
indicate which community custody conditions were imposed, including whether Shuda
was required to pay community custody supervision fees.
Shuda appealed.
ANALYSIS
A. REMEDY FOR INSUFFICIENT FINDINGS1
The parties agree the trial court’s written findings are insufficient to support
Shuda’s convictions because the findings failed to find that Shuda acted with intent. Both
also agree a remedy is appropriate. Shuda asks this court to reverse and dismiss his
assault convictions with prejudice. The State asks this court to vacate Shuda’s assault
convictions and remand for entry of further findings based on the evidence already
presented. As explained below, we agree with the State’s requested remedy.
Following a bench trial, a trial court must enter findings of fact and conclusions of
law. CrR 6.1(d). “Each element must be addressed separately, setting out the factual
basis for each conclusion of law.” State v. Banks, 149 Wn.2d 38, 43, 65 P.3d 1198
(2003). “In addition, the findings must specifically state that an element has been met.”
Id.
1
We decline Shuda’s invitation to infer a finding that he did not act with intent
when he struck and kicked the officers. Such an inference is incompatible with the trial
court’s verdict. See State v. Souza, 60 Wn. App. 534, 540, 805 P.2d 237 (1991).
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No. 37561-7-III
State v. Shuda
The State charged Shuda under RCW 9A.36.031(1)(g) with assaulting law
enforcement officers. Intent is an element of assault. State v. Brown, 94 Wn. App. 327,
342, 972 P.2d 112 (1999), aff’d, 140 Wn.2d 456, 998 P.2d 321 (2000). Because the trial
court did not address this element in its written findings, the findings do not comply with
CrR 6.1(d). Our examination of cases discussing this issue convinces us that the proper
remedy for noncompliance with CrR 6.1(d) depends on whether the defendant was
prejudiced by the error.
In State v. Head, 136 Wn.2d 619, 964 P.2d 1187 (1998), Head appealed several
first degree theft convictions following a bench trial. He challenged the sufficiency of the
evidence supporting the convictions and also the trial court’s failure to enter any findings
or conclusions. Id. at 620-21. The Head court limited its review to finding an error under
CrR 6.1(d), and then vacated Head’s convictions and remanded for the trial court to enter
findings of fact and conclusions of law. Id. at 622-26. The Head court prohibited the
trial court from considering any additional evidence on remand and advised the trial court
it was not bound by its earlier oral ruling. Id. at 625-26. The high court noted reversal
was possible if Head could show actual prejudice, e.g., that the new findings were
tailored to address issues raised on appeal. Id. at 624-25. But because Head had not
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No. 37561-7-III
State v. Shuda
shown actual prejudice yet, the appropriate remedy was to vacate his convictions and
remand rather than to reverse and dismiss his convictions with prejudice. Id. at 624-25.
In Banks, Banks was charged with unlawful possession of a firearm. 149 Wn.2d at
40. There, a 911 caller saw Banks drop a gun and then moments later did not see the gun
on the ground. An officer later stopped Banks and found a gun in the car Banks was
driving. At trial, the prosecutor did not argue that Banks knowingly possessed the gun
because that mens rea was not grafted into the elements by the Washington Supreme
Court until shortly after Banks’s trial. Id. at 42. Accordingly, the trial court did not enter
an explicit finding that Banks knowingly possessed the gun. Id. On appeal, Banks
argued that his conviction must be reversed because the State was relieved of its burden
of proving every element of the charge beyond a reasonable doubt. Id. at 44. The Banks
court determined that the State’s failure to argue knowing possession was harmless
beyond a reasonable doubt because Banks had argued at trial that he did not know the gun
was in the car. Id. at 45-46. The Banks court also determined that remand was
unnecessary because the trial court had found that Banks actually had picked up the
dropped gun, which showed it had considered Banks’s knowledge. This finding
supported the inference that the trial court had made the necessary finding. Id. at 46.
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No. 37561-7-III
State v. Shuda
Here, the element of the charged crime contested at trial was whether Shuda struck
the arresting officers intentionally. Similar to Banks, Shuda presented evidence and
argument on the missing finding. We conclude that Shuda was not prejudiced by the trial
court’s noncompliance with CrR 6.1(d). However, unlike in Banks, there is nothing in the
trial court’s findings or conclusions that allow us to infer the missing finding. The
remedy ordered in Head is appropriate. We direct the trial court to vacate Shuda’s
convictions and, based on the evidence presented at trial, to enter supplemental findings
on whether Shuda intentionally struck Officer Chavez on the head and whether he
intentionally kicked Officer Nelson.2
STATEMENT OF ADDITIONAL GROUNDS (SAG) FOR REVIEW
In his first SAG, Shuda writes that he agrees with his appellate attorney.
In his second SAG, Shuda asks for the right to a “jury trial appeal as this was a
bench trial.” There is no such thing as a jury trial appeal. Shuda can take partial
consolation knowing that a panel of three neutral judges reviewed the record and his
arguments. Beyond that, we deny his request.
2
On appeal, Shuda also requested resentencing to omit a simple possession
conviction from his offender score and to strike the community custody supervision fees.
Because his convictions must be vacated, those issues are moot.
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No. 37561-7-111
State v. Shuda
Vacate convictions and remand for supplemental findings.
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:
Q. 11
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Pennell, CJ. Fearing, J.
7