(dissenting) — I dissent. In a juvenile delinquency proceeding the judge's findings and conclusions are the functional equivalent of a jury verdict in a criminal proceeding and should be treated in the same manner. The majority's interpretation of JuCR 7.11 permits any deficiency in the findings and, I presume, in the conclusions, to be remedied by a remand for further consideration by the trial judge, so long as the record would arguably support the missing findings. In this case, the majority in substance tells the trial court: We cannot understand why you did not make a finding of intent because we believe the evidence *544would support such a finding: please take a second look at the evidence to see if the appellant had the necessary intent. Such a remand is inconsistent with In re Winship,5 which applied full criminal due process standards to juvenile delinquency proceedings, including the requirement of proof of all the essential elements beyond a reasonable doubt.
The majority relies heavily on State v. Jones6 which held that remand, not reversal, is the appropriate disposition when the trial court enters findings of fact but fails to enter a finding as to an element of the crime charged. The majority, at 539, finds the holding of Jones substantially correct. However, the Jones holding is devoid of analysis and merely cites five cases as controlling: Seattle v. Silverman; State v. Helsel; State v. Russell; State v. Wilks; and State v. Eldridge. 7An examination of those cases discloses that in each the court remanded for entry of findings because no findings of fact or conclusions of law had been entered.8 As the Helsel court correctly noted: "We cannot consider this appeal since, without the findings of fact and conclusions of law, the record of this case does not fully indicate the basis upon which the trial court entered its judgment." Helsel, at 82-83. None of these cases discuss the proper disposition when the findings are insufficient to sustain the conviction.
*545The other cases cited by the majority in support of its holding are State v. Greco9 and State v. Commodore.10 The Greco court did not analyze or discuss the issue but merely cited State v. Russell11 and State v. Jones, supra. Nor did the Commodore court discuss the issue; its statement that remand would be appropriate is contained as dicta within a footnote. In summary, no Washington court has given a reasoned basis for allowing the trier of fact to reevaluate the evidence to make the additional findings necessary to sustain a conviction.
The majority, at 540, merely states baldly that it seems likely the failure to find was a "trial error" rather than an insufficiency of the evidence. The majority cites Burks v. United States12 for the distinction between reversals due to trial error and those resulting from evidentiary insufficiency. Failure to find is not one of the trial errors mentioned in Burks. However, if the failure was a "trial error," to be consistent with Burks the majority should reverse for a new trial, not remand for additional findings.
I do not find this distinction persuasive because it does not address the facts of our case. Here, there is no error in the admission of evidence or conduct of the trial. The "error" was that the trier of the facts failed to find the facts necessary for conviction. If such a failure to find was deliberate, I think it is apparent that double jeopardy principles are violated. The prosecution is given two opportunities to persuade the trier of fact to find the facts necessary for conviction, which is tantamount to being given two chances to convict the defendant, albeit on the same evidence.
*546As a practical matter, the majority may well be right that in this particular case the failure to find the intent to deprive was an oversight rather than a deliberate decision.13 But 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, where such assumption, if wrong, will result in a double jeopardy. 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.14 In my view, the court's findings, positive or negative, should be treated like a jury verdict.
Although the majority recognizes the well-established civil rule that a failure to find a fact is a finding against the party having the burden of proof as to that fact, it refuses to apply it in this context. Majority, at 541-42. In my view, this rule mandates reversal independent of double jeopardy *547principles. State v. Jacobson.15 If a civil litigant is normally entitled to the benefit of the rule, a fortiori a juvenile in a criminal proceeding should be entitled to the benefit of the rule. The uncommonness of its application in the criminal context is more likely due to the infrequency of the type of problem here faced, than any inappropriateness in the applying rule.
After rejecting the rule as applicable to juvenile delinquency proceedings, the court goes on to find that the facts of this case fall within an exception to the rule, citing LaHue v. Keystone Inv. Co.16 However, LaHue refuses to apply the rule when there is "uncontradicted evidence” as to the fact at issue. Here, the majority concedes that the evidence of intent is disputed. LaHue and similar cases do not justify applying the exception to the appellant. LaHue refuses to apply the rule to affirm where there is uncontra-dicted evidence requiring reversal, not, as here refusing to apply the rule where a disputed fact is not found. The two situations are not parallel and LaHue is not controlling.
A remand where the findings are insufficient to sustain a conviction subjects the juvenile to double jeopardy and denies him criminal due process by failing to apply the rule that a failure to find is a finding against.
I would reverse and dismiss.
Review denied at 116 Wn.2d 1026 (1991).
397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970).
34 Wn. App. 848, 664 P.2d 12 (1983). The majority does recognize that State v. Jones, supra, clearly erred in stating that upon such remand the trial court could take additional evidence. Such procedure would clearly violate double jeopardy.
35 Wn.2d 574, 214 P.2d 180 (1950); 61 Wn.2d 81, 377 P.2d 408 (1962); 68 Wn.2d 748, 415 P.2d 503 (1966); 70 Wn.2d 626, 424 P.2d 663 (1967); 17 Wn. App. 270, 562 P.2d 276 (1977).
Although it is hard to understand how such a record can reach the appellate court, I agree that in such circumstances remand is appropriate.
57 Wn. App. 196, 787 P.2d 940, review denied, 114 Wn.2d 1027 (1990).
38 Wn. App. 244, 249 n.4, 684 P.2d 1364, review denied, 103 Wn.2d 1005 (1984).
68 Wn.2d 748, 415 P.2d 503 (1966).
437 U.S. 1, 15-16, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978).
Here, the facts are simple, but in Greco they are complicated and it is far from clear that it was a mere "oversight." If the rule is unsound in some factual situations, it should be modified or abandoned.
State v. Holt, 104 Wn.2d 315, 704 P.2d 1189 (1985); State v. Leach, 113 Wn.2d 679, 782 P.2d 552 (1989).
36 Wn. App. 446, 450, 674 P.2d 1255 (1983) (Reviewing a murder trial, the appellate court stated that "the absence of a finding of [prosecutorial misconduct] is, in effect, a determination that there was none.").
6 Wn. App. 765, 776, 496 P.2d 343, review denied, 81 Wn.2d 1003 (1972).