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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 66059-4-I
                      Respondent,           )
                                            )       DIVISION ONE
              v.                            )
                                            )       UNPUBLISHED OPINION
CAROL ANNE MAGEE,                           )
                                            ) 
                      Appellant.            )       FILED:  April 23, 2012

       Grosse, J.  --  Failure to enter written findings of fact and conclusions of 

law as required by CrR 3.5 amounts to harmless error when, as here, the court's 

oral findings are sufficient for appellate review.  Accordingly, we affirm.

                                        FACTS

        The State charged Carol Magee with second degree malicious mischief.  

The charges arose out of an incident in which Magee used her truck to 

repeatedly strike a Puget Sound Energy (PSE)  electric transformer that was 

located on the road to her home.  Neighbors called the police and videotaped 

the incident.  A police officer contacted Magee outside of her home and asked 

her if she had any information about the incident.  Magee told the officer that the 

power box was illegally on her property and that she had asked PSE to remove 

it.  Magee also said that she had spoken with a PSE representative on the 

phone who told her that they would move the box if she paid the cost of moving 

it.  Magee said that her response to this was, "You move the box or I'll move it 

for you."

       Magee waived her right to counsel and proceeded to trial pro se.  Before 

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trial, the court held a CrR 3.5 hearing to determine the admissibility of her 

statements to the officer.  The trial court ruled that the statements were 

admissible and made the following oral findings and conclusions:

              When Sgt. [Russ] Lindner came up to the fence, he testified that he 
       believed that the fence was chained and padlocked.  You were on one 
       side of it; he was on the other side.  And he asked you what your version
       of events were.
              Whatever the statements were made, were made while you were 
       not under arrest.  You were not in custody. And no Miranda[1] warnings 
       were necessary until you were under arrest.
              We're not talking about any statements that were made after 
       arrest; we're talking about statements that were made while you were on 
       one side of the fence and he was on the other.
              I will find that those statements were voluntary.  That you were not 
       in custody at that time.  That you were free to leave.  That any answers 
       made to the questions of what  --  what is your version, I believe that is, of 
       events  [that]  were made without any threats or promises and are 
       admissible.  

A jury found Magee guilty as charged.  She appeals.

                                      ANALYSIS

       Magee seeks remand for entry of proper findings of fact and conclusions 

of law in support of the court's CrR 3.5 ruling.  She correctly notes that the court 

did not enter written findings and conclusions as required by CrR 3.5.  But as the 

State contends, such error is harmless if the court's oral findings after a CrR 3.5 
hearing are sufficient for appellate review.2     Here, the court's oral findings are 

clear and comprehensive and there is substantial evidence in the record to 

support the findings.  Thus, written findings would be just a mere formality.  
Accordingly, the lack of CrR 3.5 findings amounts to harmless error.3

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2 State v. Miller, 92 Wn. App. 693, 703, 964 P.2d 1196 (1998).  
3 State v. Trout, 125 Wn. App. 403, 415, 105 P.3d 69 (1997).
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Statement of Additional Grounds

       Magee also raises several issues in a statement of additional grounds.  

The State first contends that we should decline review of Magee's statement of 

additional grounds because it was not timely filed.  On May 17, 2011, the clerk of 

this court notified Magee that her statement of additional grounds was due within 

30 days.  Magee filed her statement of additional grounds on June 20, 2011.  

While this was technically past the 30 day deadline by just a few days, we are 

satisfied that she substantially complied with this deadline.  We further note that 

we granted the State an extension of time to respond to the statement of 

additional grounds.  Accordingly, we review the issues raised.  

       Magee first contends that the judge in her case should have been 

disqualified.  RCW 4.12.050 permits a party to establish by motion and affidavit 

that a judge is prejudiced against the party and the party cannot have a fair and 

impartial trial before that judge.  The statute requires that such an affidavit of 
prejudice be filed before the judge makes any discretionary rulings in the case.4  

CrR 8.9 further provides:

       Any right under RCW 4.12.050 to seek disqualification of a judge will be 
       deemed waived unless, in addition to the limitations in the statute, the 
       motion and affidavit is filed with the court no later than thirty days prior to 
       trial before a pre-assigned judge. If a case is reassigned to a different 
       judge less than forty days prior to trial, a party may then move for a 
       change of judge within ten days of such reassignment, unless the moving 
       party has previously made such a motion.

4 RCW 4.12.050(1) ("[B]efore the judge presiding has made any order or ruling 
involving discretion, but the arrangement of the calendar, the setting of an 
action, motion or proceeding down for hearing or trial, the arraignment of the 
accused in a criminal action or the fixing of bail, shall not be construed as a 
ruling or order involving discretion within the meaning of this proviso.").
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No. 66059-4-I / 4

As the State correctly notes, Magee did not file an affidavit of prejudice in this 

case.  Accordingly, she has waived the right to do so and may not raise this 

issue for the first time on appeal.  

       Magee next appears to challenge the order of restitution, asserting, "The 

prosecuting attorney proceeded as if no arrangement had begun for restitution of 

the damage to [the] transformer.  It was on my regular power bill -- paid on 

monthly."   The State asked for restitution in the amount of $1,382.80 for the 

damage to the transformer.  This was based on testimony from a PSE claims 

agent, who provided a cost breakdown for the damage to the transformer.  

Magee did not provide any argument or evidence at trial or sentencing that she 

had already been billed by PSE for the damage to the electrical transformer.  

She has simply attached to her brief copies of notices from PSE and collections 

notices about an overdue bill.  None of these were part of the record below nor 

did Magee make a motion to supplement the appellate record with this 

information.  Thus, her claim is without support.

       Magee next contends that the judge improperly advised the jury during 

voir dire that the parties could not define the term "easement,"              when the 

prosecutor asked jurors whether they thought having an easement meant having 

a property interest.  Magee asserts that this portion of void dire was not 

transcribed, but in fact this appears in the verbatim  report of proceedings as 

follows:
       [PROSECUTOR]: Does anyone know what an easement is?
       . . . .
       And so does  --  does someone -- If someone had an easement, would they 
       have a property interest, would you think?  

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No. 66059-4-I / 5

When it was Magee's turn to question the jurors, the following exchange 

occurred:

       CAROL A. MAGEE: Hmm. Does this have to be a question  Or can I give 
       a definition of easement?
       THE COURT:  No. You have to --              I  -- I will give any definitions or 
       description of law.  You have to ask questions.
       CAROL A. MAGEE:  Okay. Thank you, Your Honor.  Would you give the 
       definition of an easement for them?
       THE COURT:  No. It's not part of this case. So . . .[.]  

       Magee fails to show that the trial court erred by declining to define 

"easement" during voir dire.  She never proposed a jury instruction defining the 

term nor did she offer argument of its relevance.  Indeed, the elements of the 

crime of malicious mischief do not include anything relating to an easement.

       Finally, Magee asserts that the trial judge never advised her at sentencing 

that her notice of appeal must be filed within 30 days of the entry of judgment.  

But as the prosecutor correctly notes, this issue is moot because the appeal is 

currently before us for review.  

       We affirm the judgment and sentence.

WE CONCUR:

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