IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 80779-0-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION ANTHONY EDYLE GARVER,
Appellant.
APPELWICK, J. — Garver appeals from a judgment and sentence for first
degree murder with a deadly weapon. First, he asserts the trial court made factual
conclusions based on matters outside the trial record. Next, he argues the written
findings of fact and conclusions of law filed after he filed his opening brief give rise
to an appearance of unfairness. We affirm.
FACTS
On June 17, 2013, Phillipa Evans-Lopez was found dead in a Lake Stevens
home. The medical examiner determined she had died by homicide a couple of
days before her body was discovered. She had been bound to a bed and had 24
stab wounds to her chest. Her throat had been slashed.
The Washington State Patrol Crime Laboratory (WSPCL) sent a team to
help process the scene for evidence. Blood spatter evidence indicated that Evans- No. 80779-0-I/2
Lopez had been tied to the bed when most of the blood-letting occurred. It also
indicated the blood spatter was deposited in a left to right direction.
The WSPCL team located deoxyribonucleic acid (DNA) and semen on
Evans-Lopez’s body that were a match for Anthony Garver. Garver’s picture
matched video surveillance from a McDonald’s restaurant of a male seen with
Evans-Lopez early in the morning on June 14, 2013. A witness later encountered
Evans-Lopez and Garver at Walmart between five and seven in the morning.
Evans-Lopez told the witness she and Garver were going to her house to get
Garver a laptop. Garver had told Evans-Lopez that he was good with computers
and could help her with identity theft.
On July 2, 2013, Garver was arrested at the McDonald’s on an existing
warrant. He agreed to a recorded interview that was transcribed and admitted into
evidence.
When arrested, Garver possessed a knife. DNA on the knife blade matched
both Garver and Evans-Lopez. He also possessed a laptop used by Evans-Lopez.
It contained documents related to killing someone with a knife and internet
searches of a murder in Lake Stevens.
The State charged Garver with first degree murder with a deadly weapon.
Garver waived his right to a jury trial. A CrR 3.5 hearing was held to determine the
admissibility of Garver’s postarrest statements to law enforcement. The
statements were found admissible. No written findings of fact or conclusions of
law were entered.
2 No. 80779-0-I/3
At the bench trial, the State entered blood spatter evidence, including exhibit
193, a photograph of Evans-Lopez’s mattress and headboard. It did not offer
expert witness testimony on how to interpret that exhibit.
On October 29, 2019, the trial court gave an oral ruling on the case. The
trial court’s remarks included the following statement,
In Exhibit 193, blood spatter in the master bedroom is mapped by the technicians. When you look at this exhibit it is clear that the pattern goes up and to the right, as you view it from the foot of the bed. One of the things you get to know in doing this work is that physical damage is often inflicted from the dominant hand. So the person was -- so if the person was right handed leaning over the body, and swiped the throat with this amount of force, you would expect the blood spatter to go up and to the left. But it doesn't. It goes up and to the right. When I was watching the video of Anthony signing his interview statement, I noticed that he signed left handed. The blood spatter pattern supports an inference that the assailant was left handed.
The trial court found Garver guilty as charged. Garver appeals.
DISCUSSION
In his opening brief, Garver argues that in opining on the blood spatter
evidence, the trial court made factual conclusions based on matters outside the
trial record. He argues the remarks constituted testimony under ER 605 and were
not subject to judicial notice under ER 201. He further argues that remand is
necessary to enter findings of fact and conclusions of law for both a hearing under
CrR 3.5 to determine the admissibility of evidence and under CrR 6.1(d) after the
bench trial.
3 No. 80779-0-I/4
I. Late Entry of Findings of Fact and Conclusions of Law
CrR 3.5(c) requires the court to enter written findings of fact and conclusions
of law after the conclusion of hearings such as the hearing to determine the
admissibility of Garver’s postarrest statements to law enforcement. CrR 6.1(d)
requires written findings of fact and conclusions of law be entered after a bench
trial. State v. Head, 136 Wn.2d 619, 621-22, 964 P.2d 1187 (1998).
After Garver filed his brief, written findings and conclusions were filed for
both matters. Findings of fact and conclusions of law may be submitted and
entered even while an appeal is pending if the defendant is not prejudiced by the
belated entry of findings. State v. Cannon, 130 Wn.2d 313, 329, 922 P.2d 1293
(1996). This precludes the need to remand on the basis of their absence.
II. Omission of Oral Remarks from Written Findings and Conclusions
The written findings and conclusions for the bench trial do not include the
challenged inference regarding blood spatter evidence. The State subsequently
filed a brief arguing the written findings and conclusions under CrR 6.1(d) control
and supersede the trial court’s challenged oral inference regarding blood spatter.
A trial court’s oral decision has no binding or final effect unless it is formally
incorporated into the findings of fact, conclusions of law, and judgment. State v.
Kilburn, 151 Wn.2d 36, 39 n.1, 84 P.3d 1215 (2004). An appellate court may
consider a trial court’s oral decision so long as it is not inconsistent with the trial
court’s written findings and conclusions. State v. Bryant, 78 Wn. App. 805, 812–
13, 901 P.2d 1046 (1995). If an oral decision conflicts with a written decision, the
written decision controls. Stiles v. Kearney, 168 Wn. App. 250, 258, 277 P.3d 9
4 No. 80779-0-I/5
(2012). An oral decision is “necessarily subject to further study and consideration,
and may be altered, modified, or completely abandoned. It has no final or binding
effect, unless formally incorporated into the findings, conclusions, and judgment.”
Ferree v. Doric Co., 62 Wn.2d 561, 567, 383 P.2d 900 (1963).
It is presumed that a trial court does not consider inadmissible evidence
when making its findings. State v. Gower, 179 Wn.2d 851, 856, 321 P.3d 1178
(2014). To overcome this presumption, the defendant must demonstrate that there
is insufficient evidence to support the verdict, or that the trial court relied on
impermissible evidence to make essential findings it would not have otherwise
made. Id. The claimed error is prejudicial only if the outcome of the trial would
have been materially affected had the error not occurred. State v. Ferguson, 100
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 80779-0-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION ANTHONY EDYLE GARVER,
Appellant.
APPELWICK, J. — Garver appeals from a judgment and sentence for first
degree murder with a deadly weapon. First, he asserts the trial court made factual
conclusions based on matters outside the trial record. Next, he argues the written
findings of fact and conclusions of law filed after he filed his opening brief give rise
to an appearance of unfairness. We affirm.
FACTS
On June 17, 2013, Phillipa Evans-Lopez was found dead in a Lake Stevens
home. The medical examiner determined she had died by homicide a couple of
days before her body was discovered. She had been bound to a bed and had 24
stab wounds to her chest. Her throat had been slashed.
The Washington State Patrol Crime Laboratory (WSPCL) sent a team to
help process the scene for evidence. Blood spatter evidence indicated that Evans- No. 80779-0-I/2
Lopez had been tied to the bed when most of the blood-letting occurred. It also
indicated the blood spatter was deposited in a left to right direction.
The WSPCL team located deoxyribonucleic acid (DNA) and semen on
Evans-Lopez’s body that were a match for Anthony Garver. Garver’s picture
matched video surveillance from a McDonald’s restaurant of a male seen with
Evans-Lopez early in the morning on June 14, 2013. A witness later encountered
Evans-Lopez and Garver at Walmart between five and seven in the morning.
Evans-Lopez told the witness she and Garver were going to her house to get
Garver a laptop. Garver had told Evans-Lopez that he was good with computers
and could help her with identity theft.
On July 2, 2013, Garver was arrested at the McDonald’s on an existing
warrant. He agreed to a recorded interview that was transcribed and admitted into
evidence.
When arrested, Garver possessed a knife. DNA on the knife blade matched
both Garver and Evans-Lopez. He also possessed a laptop used by Evans-Lopez.
It contained documents related to killing someone with a knife and internet
searches of a murder in Lake Stevens.
The State charged Garver with first degree murder with a deadly weapon.
Garver waived his right to a jury trial. A CrR 3.5 hearing was held to determine the
admissibility of Garver’s postarrest statements to law enforcement. The
statements were found admissible. No written findings of fact or conclusions of
law were entered.
2 No. 80779-0-I/3
At the bench trial, the State entered blood spatter evidence, including exhibit
193, a photograph of Evans-Lopez’s mattress and headboard. It did not offer
expert witness testimony on how to interpret that exhibit.
On October 29, 2019, the trial court gave an oral ruling on the case. The
trial court’s remarks included the following statement,
In Exhibit 193, blood spatter in the master bedroom is mapped by the technicians. When you look at this exhibit it is clear that the pattern goes up and to the right, as you view it from the foot of the bed. One of the things you get to know in doing this work is that physical damage is often inflicted from the dominant hand. So the person was -- so if the person was right handed leaning over the body, and swiped the throat with this amount of force, you would expect the blood spatter to go up and to the left. But it doesn't. It goes up and to the right. When I was watching the video of Anthony signing his interview statement, I noticed that he signed left handed. The blood spatter pattern supports an inference that the assailant was left handed.
The trial court found Garver guilty as charged. Garver appeals.
DISCUSSION
In his opening brief, Garver argues that in opining on the blood spatter
evidence, the trial court made factual conclusions based on matters outside the
trial record. He argues the remarks constituted testimony under ER 605 and were
not subject to judicial notice under ER 201. He further argues that remand is
necessary to enter findings of fact and conclusions of law for both a hearing under
CrR 3.5 to determine the admissibility of evidence and under CrR 6.1(d) after the
bench trial.
3 No. 80779-0-I/4
I. Late Entry of Findings of Fact and Conclusions of Law
CrR 3.5(c) requires the court to enter written findings of fact and conclusions
of law after the conclusion of hearings such as the hearing to determine the
admissibility of Garver’s postarrest statements to law enforcement. CrR 6.1(d)
requires written findings of fact and conclusions of law be entered after a bench
trial. State v. Head, 136 Wn.2d 619, 621-22, 964 P.2d 1187 (1998).
After Garver filed his brief, written findings and conclusions were filed for
both matters. Findings of fact and conclusions of law may be submitted and
entered even while an appeal is pending if the defendant is not prejudiced by the
belated entry of findings. State v. Cannon, 130 Wn.2d 313, 329, 922 P.2d 1293
(1996). This precludes the need to remand on the basis of their absence.
II. Omission of Oral Remarks from Written Findings and Conclusions
The written findings and conclusions for the bench trial do not include the
challenged inference regarding blood spatter evidence. The State subsequently
filed a brief arguing the written findings and conclusions under CrR 6.1(d) control
and supersede the trial court’s challenged oral inference regarding blood spatter.
A trial court’s oral decision has no binding or final effect unless it is formally
incorporated into the findings of fact, conclusions of law, and judgment. State v.
Kilburn, 151 Wn.2d 36, 39 n.1, 84 P.3d 1215 (2004). An appellate court may
consider a trial court’s oral decision so long as it is not inconsistent with the trial
court’s written findings and conclusions. State v. Bryant, 78 Wn. App. 805, 812–
13, 901 P.2d 1046 (1995). If an oral decision conflicts with a written decision, the
written decision controls. Stiles v. Kearney, 168 Wn. App. 250, 258, 277 P.3d 9
4 No. 80779-0-I/5
(2012). An oral decision is “necessarily subject to further study and consideration,
and may be altered, modified, or completely abandoned. It has no final or binding
effect, unless formally incorporated into the findings, conclusions, and judgment.”
Ferree v. Doric Co., 62 Wn.2d 561, 567, 383 P.2d 900 (1963).
It is presumed that a trial court does not consider inadmissible evidence
when making its findings. State v. Gower, 179 Wn.2d 851, 856, 321 P.3d 1178
(2014). To overcome this presumption, the defendant must demonstrate that there
is insufficient evidence to support the verdict, or that the trial court relied on
impermissible evidence to make essential findings it would not have otherwise
made. Id. The claimed error is prejudicial only if the outcome of the trial would
have been materially affected had the error not occurred. State v. Ferguson, 100
Wn.2d 131, 137, 667 P.2d 68 (1983).
The blood spatter remarks were unnecessary to the judgment and the
inference was not based on expert opinion presented at trial. But, the findings and
conclusions do not incorporate these remarks. The written findings and
conclusions control over any remarks made during the trial court’s oral decision.
The remarks did not form a basis for the conclusions reached by the court.
III. Tailoring
Still, in his reply brief, Garver asserts the failure to include these oral
remarks makes it appear as though they were tailored to address the main
substantive issue raised in his appeal, creating at least an appearance of
unfairness warranting reversal.
5 No. 80779-0-I/6
Absent a showing of prejudice or some indication that they have been
tailored to address issues on appeal, the late entry of findings of fact and
conclusions of law is not a ground for reversal. State v. Eaton, 82 Wn. App. 723,
727, 919 P.2d 116 (1996); overruled on other grounds by State v. Frohs, 83 Wn.
App. 803, 811 n.2, 924 P.2d 384 (1996).
It is true that the written findings do not contain the contested remarks from
the oral decision at the heart of Garver’s appeal. But, Garver has not demonstrated
that this omission was responsive to his briefing. As Garver contends, the
inclusion of the remarks would have made an improper basis for the court’s legal
conclusions.
Further, had the court included the remarks, it would have been acting on
untenable grounds by entering a factual finding unsupported by the record. See
In re Marriage of Wicklund, 84 Wn. App. 763, 770 n.1, 932 P.2d 652 (1996) (noting
the court acts on untenable grounds if its factual findings are unsupported by the
record); State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013) (laying out the
grounds by which a court abuses its discretion, including the factual findings being
unsupported by the record). The finding would have been stricken, with the
remaining factual findings to support the legal conclusions.
While Garver makes vague assertions that this was a close case, he
assigns error to the fact that the omitted blood spatter inference was considered
by the court in reaching its conclusions, not that the remaining findings were
insufficient to support its conclusions.
6 No. 80779-0-I/7
Here, Garver’s DNA and semen were found on Evans-Lopez’s body. Video
surveillance and witness testimony placed Garver with Evans-Lopez near the time
of her death. DNA on Garver’s knife blade matched both Garver and Evans-Lopez.
He also possessed a laptop used by Evans-Lopez. It contained documents related
to killing someone with a knife and internet searches of a murder in Lake Stevens.
Proving the blood spatter evidence suggested the assailant was left-handed like
Garver was unnecessary to support his conviction.
Garver has not demonstrated the findings and conclusions were
inappropriately tailored. He has not demonstrated that he suffered any prejudice
by the omission of the challenged remarks from the written findings. The omission
of the oral remarks about blood splatter is not a reversible error.
We affirm.
WE CONCUR: