STATE v. WEXLER, 137 Wn. App. 1054 (2007)

Affirmedby unpublished per curiam opinion.

Demion Wexler was convicted by a jury for felony violation of a domestic violence no-contact order under RCW26.50.110(5), which requires at least two prior convictions for violation of a court order listed in the statute. Before trial, the court held a Criminal Rule (CrR) 3.5 hearing to determine which of Wexler's statements to the police were admissible. The court made an oral ruling but failed to enter written findings of fact and conclusions of law until July 21, 2006, after Wexler had appealed his conviction. Wexler challenges the court's untimely entry of findings and conclusions under CrR 3.5(c) and its admission of evidence of two of his prior convictions for violating court orders, arguing that the State failed to prove their statutory validity under RCW26.50.110(5). We hold that the court's untimely filing of findings and conclusions does not constitute reversible error because Wexler fails to demonstrate any prejudice from the untimely filing. We also hold Wexler waived any objection to the admission of his predicate convictions because he failed to timely object on relevance grounds. We affirm. Wexler was charged with domestic violence felony violation of a court order under RCW26.50.110(5) based on an allegation that he had at least two other convictions for violating a court order. On October 17, 2005, the trial court held a CrR 3.5 hearing to determine whether statements Wexler made to the police should be suppressed. The court ruled on these motions but did not immediately enter written findings of fact and conclusions of law.

Before Wexler's jury trial, the prosecutor provided the court with certified copies of documents relating to Wexler's three alleged previous convictions for violating court orders. Initially, the prosecutor provided only the certified copies of dockets from two Lakewood Municipal Court convictions for violations of court orders. Wexler objected to the admission of the dockets because they did not reference their statutory basis. The next day, the prosecutor gave notice to the court and opposing counsel that she was in the process of obtaining the Lakewood complaints and guilty plea forms as evidentiary support for the dockets. When the trial court provisionally admitted the certified documents relating to these prior convictions subject to proper redaction, Wexler objected solely on the ground that there was a "[l]ack of foundation in terms of custodian of record."

At trial, the State offered the complaint and guilty plea form from Wexler's 1997 violation of a restraining order conviction from Lakewood Municipal Court (cause number 97-794) without objection from Wexler. He did, however, object to a certified copy of the docket for 97-794, based on lack of foundation, because it was not admitted through a custodian. The State also offered certified copies of documents from another Lakewood conviction (cause number 97-676), including the docket, complaint, and guilty plea form. Wexler again objected to these exhibits on the ground that the State could not lay a proper foundation without a custodian of record. Finally, the State offered the docket from the Pierce County District Court conviction for violating a protection order. Wexler objected on both relevance and lack of foundation grounds.¹The court admitted all of these exhibits.

Immediately before the close of the State's case, Wexler moved to dismiss the charges based in part on his belief that, because the State could not provide judgments and sentences for the three prior convictions, there was insufficient evidence of the three convictions. He also argued that it was impossible to know whether the convictions for violations of the Lakewood Municipal Code satisfied RCW26.50.110(5)'s definition of violation of a court order, without cross-referencing the Lakewood Municipal Code. In response, the prosecutor provided the court with a copy of the relevant sections of the Lakewood Municipal Code. The trial court denied Wexler's motion, stating that one could infer from the documents provided that his convictions fell within the purview of RCW26.50.110(5).

The jury found Wexler guilty of violating a no-contact order and affirmatively answered special verdict forms about whether he had previously been convicted of at least two violations of court orders. Wexler appeals, arguing that the trial court erred by failing to enter written findings of fact and conclusions of law after the CrR 3.5 hearing and by admitting the evidence of his two prior convictions from Lakewood Municipal Court. On July 20, 2006, after Wexler had filed his appeal, the trial court entered written findings of fact and conclusions of law for the CrR 3.5 hearing. I. CrR 3.5(c)

A court is required to enter written findings of fact and conclusions of law after a hearing on whether to admit a criminal defendant's statements under CrR 3.5(c). Findings of fact and conclusions of law may be submitted and entered while an appeal is pending.²Generally, we do not approve of courts entering findings and conclusions after an appellant has already submitted an opening brief because it raises the appearance of unfairness.³But, unless appellant can demonstrate prejudice resulting from the untimely entry, it does not constitute reversible error.⁴

Wexler filed his notice of appeal on December 12, 2005. He filed his opening brief on May 31, 2006. The trial court did not file its written findings of fact and conclusions of law from the CrR 3.5 hearing until July 21, 2006. "The primary purpose in requiring findings and conclusions is to enable an appellate court to review the questions raised on appeal."⁵Wexler does not contest anything that happened at the CrR 3.5 hearing in his opening brief and chose not to file a reply brief. Because he has not demonstrated any prejudice from the untimely filing, we hold that there was no reversible error.

II. Predicate Convictions Under RCW26.50.110(5)

RCW26.50.110(5) states that violation of a no-contact order is a felony if a defendant has at least two prior convictions for violating a court order under RCW chapters 25.50,7.90,10.99,26.09,26.10,26.26,74.34, or a "valid foreign protection order as defined in RCW26.52.020."⁶Whether prior convictions qualify as valid predicate convictions under RCW26.50.110(5) is a question of law for the court.⁷The relevance of a prior conviction depends on whether it is for one of the court order violations listed in the statute.⁸As part of its gate-keeping function, the trial court must rule on the admissibility of evidence of predicate convictions before that evidence is submitted to the jury.⁹To challenge a trial court's admission of evidence on appeal, a party must raise a timely objection on specific grounds at trial.¹⁰"To be timely, the party must make the objection at the earliest possible opportunity after the basis for the objection becomes apparent."¹¹An objection that does not specify the ground on which it is based is insufficient to preserve the issue for review.¹²

The State argues that Wexler waived review by failing to timely and correctly object to the admission of the documents used to prove his prior Lakewood convictions. In State v. Carmen, we clearly stated that the statutory validity of prior convictions under RCW26.50.110(5) is a legal question of admissibility for the court, not a sufficiency of the evidence question for the jury.¹³Consequently, to properly preserve the issue for review, a defendant must timely object to admission of his prior convictions on relevance grounds, arguing that they lack a sufficient statutory basis under RCW26.50.110(5).¹⁴In State v. Gray, we held that a defendant who failed to object to the admission of his predicate convictions on relevance grounds before the State rested waived any objection.¹⁵In Gray, the defendant failed to object when the court admitted evidence of his prior convictions, choosing instead to move for dismissal at the close of the State's case based on the statutory inadequacy of the already admitted predicate convictions.¹⁶We held this was insufficient to preserve the issue for review.¹⁷

Here, although Wexler initially objected to the admission of the certified copies of the Lakewood dockets as the sole proof that he had two statutorily relevant prior convictions, he failed to renew this objection when the prosecution offered additional evidence in the form of complaints and guilty plea forms for those offenses. In fact, Wexler made no objection to the admission of the complaint and guilty plea form from his 97-794 conviction and objected to the other certified documents admitted to prove his Lakewood convictions solely on lack of foundation grounds. Like the defendant in Gray, Wexler chose to wait until the close of the State's case to move for dismissal, arguing that the evidence presented was insufficient to prove the prior convictions were statutorily valid. Thus, we hold that Wexler failed to preserve this issue for review and decline to address the merits of his arguments relating to his predicate convictions.

We affirm.Page 1055