State v. Goins , 151 Wash. 2d 728 ( 2004 )

Owens, J.

In this case we must decide if a criminal conviction will be overturned when a jury’s conviction on a general charge is apparently inconsistent with its answer to a subsequent special verdict. The petitioner, Matthew Glen Goins, was tried by a jury and convicted of second degree assault with the intent to commit indecent liberties. RCW 9A.36.021(l)(e). However, the jury also found by subsequent special verdict that Goins had not acted with sexual motivation. Former RCW 9.94A.127 (1999), recodified as RCW 9.94A.835. Defense counsel did not challenge the apparently contradictory verdicts, and Goins was sentenced according to his conviction. The Court of Appeals affirmed.

Goins claims that the apparent inconsistency of the verdicts requires that his conviction be vacated. In the alternative, he argues that former RCW 4.44.440, amended by Laws of 2003, ch. 406, § 24, can be applied to criminal cases as well as civil, thereby voiding his assault conviction.

We have previously established that verdict inconsistency does not require that we vacate a guilty verdict. We should not second-guess the jury or its lenity since the evidence presented at trial was sufficient to sustain the jury’s conviction on second degree assault. Furthermore, former RCW 4.44.440 was a civil procedure statute, not a criminal one. We have previously held that former RCW 4.44.440 cannot apply to criminal cases, so it provides no basis for dismissal of Goins’ conviction. We therefore affirm the ruling of the Court of Appeals and uphold Goins’ conviction of second degree assault with intent to commit indecent liberties.

FACTS

Goins was convicted as the result of a May 18, 2000, altercation in the bedroom of his victim, Angela Z. On the evening of May 17, 2000, Goins went out drinking with his friend Steve Haworth. In the early morning of May 18, Goins gave Haworth a ride to the apartment of Haworth’s friend, Z, where they arrived at approximately 4:00 a.m. Z testified that Goins had been drinking and that Haworth was drunk.

Haworth went to the restroom, leaving Goins and Z alone in the living room. At this time Goins tried to kiss Z. Z testified that she rebuffed Goins and pushed him away. Z then ignored Goins and she dozed off. When Z woke up she found Goins in her bedroom, so she went into the bedroom to investigate. In the bedroom, Goins tried to kiss Z a second time, and did not give up after Z pushed him away again. Goins grabbed Z by her arms and forced her onto the bed. Z fought with Goins and kicked him in an attempt to get away. But Goins overpowered her, pinned her arms and legs, and tried to lift up her shirt. During their fight Z struck Goins in the face and repeatedly pleaded with Goins to stop.

Haworth then entered the bedroom to investigate the commotion. This allowed Z to flee the bedroom and bang on her neighbor’s door for help. Z’s neighbor, Shari Platt, let Z call the police. Meanwhile, Goins fled the scene.

During the trial, Platt’s and Haworth’s testimony was consistent with Z’s version of the incident. Platt testified that Z had marks on her wrist, neck, foot, and face from the altercation. Haworth also testified that Z looked “roughed up.” Verbatim Report of Proceedings (VRP) (Nov. 27, 2000) at 39.

At trial, Goins testified in his own defense. He admitted that he had tried to kiss Z, and that she had rebuffed his advances. He testified that he had followed Z into the bedroom and tried to kiss her a second time, but that this time she “flipped out” and punched him in the face. VRP (Nov. 28, 2000) at 123. Goins claimed that he grabbed Z to keep her from hitting him.

Goins was charged with second degree assault with intent to commit indecent liberties. RCW 9A.36.021(l)(e). The court also submitted a special verdict to the jury to determine if Goins acted with sexual motivation. RCW 9.94A.835. After convicting Goins on the second degree assault charge, the jury was then allowed to consider the special verdict and answered that Goins did not act with sexual motivation. Defense counsel made no objection to the apparently inconsistent verdicts, and Goins was subsequently sentenced. The Court of Appeals affirmed in State v. Goins, 113 Wn. App. 723, 54 P.3d 723 (2002).

ISSUES

(1) Must Goins’ conviction be vacated because the jury’s general conviction for assault with intent to commit indecent liberties is apparently inconsistent with the jury’s special verdict answer that Goins did not act with sexual motivation?

(2) Can former RCW 4.44.440, a civil procedure statute, be applied in criminal cases?

ANALYSIS

Goins assigned error to the apparently irreconcilably inconsistent nature of the general and special verdicts. Goins argues that the inconsistent verdicts violated his rights to due process and therefore his second degree assault conviction should be reversed. In the alternative, Goins argues that former RCW 4.44.440 can be applied in criminal cases, so that the finding of his special verdict should control, thereby dismissing his general conviction for second degree assault. The appellate court may refuse to review any claim of error that was not raised in the trial court. RAP 2.5(a); State v. Scott, 110 Wn.2d 682, 686, 757 P.2d 492 (1988). However, a claim may be raised for the first time on appeal if it amounts to a manifest error affecting a constitutional right. Id. at 687-88.

As an initial matter, Goins either committed the assault for the purposes of sexual gratification or he did not; the verdicts are irreconcilably inconsistent. Defense counsel did not raise the issue of inconsistent verdicts at trial. Goins, 113 Wn. App. at 725. This may have been a legitimate strategic decision, so as not to reopen the possibility of Goins’ registration as a sex offender. Id. at 744. Still, this court can address a newly raised error if it is manifest and it affects a constitutional right. State v. McNeal, 145 Wn.2d 352, 357, 37 P.3d 280 (2002). But “an appellant does not establish manifest error merely by showing that jury verdicts appear to be inconsistent.” Id. The defendant “has the burden to demonstrate that the alleged error actually affected his ... rights.” Id. It is important to note that while truly inconsistent verdicts reveal that the jury somehow erred in applying the jury instructions, that error does not necessarily render the guilty verdict void, nor does it automatically establish prejudice. Id.; see also United States v. Powell, 469 U.S. 57, 65, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984).

Juries return inconsistent verdicts for various reasons, including mistake, compromise, and lenity. Dunn v. United States, 284 U.S. 390, 393-94, 52 S. Ct. 189, 76 L. Ed. 356 (1932); Powell, 469 U.S. at 65. Despite the inherent discomfort surrounding inconsistent verdicts, the United States Supreme Court, in the context of federal crimes, has recognized that a guilty verdict can stand, even where the defendant was inconsistently acquitted of a predicate crime. Powell, 469 U.S. at 68-69; Dunn, 284 U.S. at 392-93. The Powell Court reasoned that an inconsistent guilty verdict “should not necessarily be interpreted as a windfall to the Government at the defendant’s expense.” Powell, 469 U.S. at 65. It is equally possible that the jury was convinced of the defendant’s guilt on the compound offense, and then “through mistake, compromise, or lenity, arrived at an inconsistent [acquittal on the predicate] offense.” Id. (affirming Dunn, 284 U.S. 390). Because one could not be sure which was the verdict that the jury “really meant,” an acquittal on a predicate offense did not necessarily require the Court to vacate the conviction. Id. at 68. Even so, the trial and appellate courts provide a safeguard from jury error by independently evaluating whether the guilty verdict rested on sufficient evidence. Id. at 67.

This court adopted the Powell rule in State v. Ng, 110 Wn.2d 32, 46, 48, 750 P.2d 632 (1988). Ng was charged with 13 counts of felony murder for his role in a robbery and shoot-out that left 13 people dead. Id. at 34-35. The jury convicted Ng of 13 counts of the lesser included offense of first degree robbery. Id. at 36. Ng argued that his robbery convictions were inconsistent with the felony murder acquittals because he did not dispute that the murders occurred. Id. at 45. Considering the important role of “jury lenity, and problems inherent in second-guessing the jury’s reasoning,” this court upheld the “ ‘power of a jury to return a verdict of not guilty for impermissible reasons.’ ” Id. at 48 (quoting Powell, 469 U.S. at 63). So long as the jury’s guilty verdict was supported by sufficient evidence, the court concluded that it would not reverse the guilty verdict simply because it was inconsistent with an acquittal on another count. Id.

Similarly, in 2002 this court upheld a guilty verdict even though it was inconsistent with a special finding that the jury returned on another charge. McNeal, 145 Wn.2d at 359. In McNeal, the jury convicted the defendant of vehicular assault, a conviction that “implied that [he] was operating his motor vehicle while ‘under the influence of drugs’ at the time he committed the offense.” Id. at 356 (quoting Clerk’s Papers). However, in finding that McNeal was also guilty of the vehicular homicide of another victim, the jury made a special finding “that he was not ‘operating the motor vehicle [ ] while under the influence of drugs.’ ” Id. (quoting Clerk’s Papers). The jury was aware that McNeal had methamphetamine in his blood at the time of the accident. Id. at 360. Because the evidence was sufficient to independently support the vehicular assault conviction, the McNeal court refused to hold that the guilty verdict was void. Id. at 361. The McNeal court reasoned that it was no less problematic to second-guess the jury when a general verdict conflicts with a special verdict than when two general verdicts conflict. Id. at 359. Therefore, both this court and the United States Supreme Court have recognized that jury convictions on separate counts should not be disturbed, despite inconsistencies, so long as there is sufficient evidence to support the conviction. In all of those cases, respect for the jury’s resolution of the case was a central consideration. Id.; Ng, 110 Wn.2d at 48; Powell, 469 U.S. at 66-67; Dunn, 284 U.S. at 394.

Goins argues that the jury’s guilty verdict must be overturned because jury lenity is not a valid explanation for the irreconcilable verdicts. But the jury was aware that the defendant had been out drinking for several hours prior to the assault, which may well have been a mitigating factor. VRP (Nov. 27, 2000) at 21. Moreover, during deliberations, the jury sent a note expressing curiosity as to the consequences of the special verdict. Clerk’s Papers (CP) at 33. Although they were never told that a finding of sexual motivation would require the defendant to register as a sex offender, their curiosity indicates an awareness that the special verdict could impact the consequences imposed. See McNeal, 145 Wn.2d at 359 n.3 (attributing inconsistent verdicts to jury lenity without making it clear that the jury understood the consequences of the special verdict). Therefore, jury lenity cannot be ignored as a potential reason for the inconsistent verdicts in this case. We are not so quick to abandon the traditional approach of exercising restraint from interfering with jury verdicts. We refrain from second-guessing the jury where lenity provides a plausible explanation for the inconsistency.

Goins argues that this case is more analogous to two appellate cases from 1971 and 1979, and must be distinguished from McNeal because Goins was charged with only a single underlying crime. See State v. Hurley, 4 Wn. App. 781, 483 P.2d 1274 (1971); State v. Wedner, 24 Wn. App. 346, 601 P.2d 950 (1979). Goins’ reliance on Hurley and Wedner would have been stronger prior to the McNeal ruling, but McNeal alters the landscape somewhat. The special verdict in this case was separate and distinct from the underlying conviction, and posed only for the purpose of determining whether Goins must be registered as a sex offender. Compare RCW 9A.36.021(l)(e) with RCW 9.94A.835. Moreover, although McNeal involved three separate charges, this court did not expressly limit its holding to situations involving multiple offenses. McNeal, 145 Wn.2d at 359.

First, the sexual motivation instruction arose from an entirely different statutory scheme than the underlying assault instruction. RCW 9.94A.835 requires the prosecutor to file a special allegation of “sexual motivation” when sufficient evidence is available to support such an allegation. The information in this case reveals that the prosecutor charged the general underlying crime and the special verdict separately, as required by statute. CP at 1. Obviously, the consequence of each charge is different: a guilty verdict on the general charge leads to incarceration, while a special finding of sexual motivation leads to sex offender registration upon release.

Most importantly, in order to successfully achieve a guilty verdict on the allegation of sexual motivation, the prosecution must convince a jury beyond a reasonable doubt both that the defendant is guilty of the general underlying crime and that the assault was perpetuated with a sexual motivation. See RCW 9A.36.021(l)(e); RCW 9.94A.835. In contrast, the legislature has mandated that when a defendant is found guilty of a “sex offense,” then sex offender registration is automatically required upon release. RCW 9A.44.130. Indecent liberties is classified as a sex offense; a guilty verdict requires sex offender registration without special findings from the jury. See RCW 9A.44.100, .130. Yet, second degree assault with intent to commit indecent liberties is one step removed; it is not a sex offense and it does not, by itself, invoke the registration requirement. RCW 9A.36.021(l)(e).

It is clear that, because the legislature did not classify second degree assault with the intent to commit indecent liberties as a sex offense, the legislature did not see fit to require every person convicted of that general crime to register as a sex offender upon release. However, Goins’ position would have the effect of requiring the underlying general verdict and the special verdict on the special allegation to be inseparable; one cannot be guilty of the underlying offense but not guilty on the special allegation. Such a result flies in the face of the legislature’s plain intent to require a separate jury determination on sexual motivation in cases where the underlying crime is not a sex offense as defined in chapter 9A.44 RCW. Therefore, the general guilty verdict here must be treated as entirely separate and distinct from the special verdict.

We conclude that the circumstances of the verdict inconsistency in this case are similar enough to those in McNeal to justify the same result in this case. McNeal, 145 Wn.2d 352. In both cases, a special verdict contradicted a general guilty verdict. Yet the very nature of inconsistent verdicts is that they are irrationally inconsistent; this alone does not render inconsistent verdicts void. In sum, Goins’ arguments for departing from McNeal are unconvincing, especially given the broad language in McNeal suggesting that the ruling applies to inconsistencies between any special finding and general verdict. Id. at 359.

When inconsistent verdicts call into question a guilty verdict, the reviewing court must verify that the guilty verdict was supported by sufficient evidence. Id. In this case, Goins admitted to “coming on” to the victim and trying to kiss her despite her adamant refusal. VRP (Nov. 28, 2000) at 121-23. The victim testified that Goins tried to lift her shirt and touch her thighs. Id. at 53-56. During the struggle, he forced her onto the bed. Id. at 52. The testimony of two witnesses confirmed the victim’s account of the events and her condition after the assault. VKP (Nov. 16, 2000) at 8-11, 25-32. The testimony of all three witnesses establishes that there was sufficient evidence to support the jury’s finding that Goins was guilty of assault with intent to commit indecent liberties. Because the general guilty verdict is supported by sufficient evidence, we affirm the Court of Appeals and uphold Goins’ conviction.

Goins argues in the alternative that former RCW 4.44.440, a civil statute, can be applied to his criminal matter and therefore his conviction should be dismissed.

Former RCW 4.44.440 (special verdict controls), read as follows, “[w]hen a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.” However, former RCW 4.44.440 was not a criminal statute, it was a civil statute. This court has previously discussed former RCW 4.44.440 in conjunction with a criminal case, but we have never applied it to a criminal verdict. See State v. Robinson, 84 Wn.2d 42, 45, 523 P.2d 1192 (1974). This court further considered this issue in McNeal, where the dissent argued for applying former RCW 4.44.440 to criminal cases. However, the majority in McNeal rejected this argument and refused to apply former RCW 4.44.440 to that criminal case. McNeal, 145 Wn.2d at 358 n.2. In accordance with McNeal we hold that former RCW 4.44.440 cannot apply in criminal cases where the special and general verdicts are inconsistent.

CONCLUSION

This court has previously held, in Ng, 110 Wn.2d 32, and McNeal, 145 Wn.2d 352, that the simple fact of verdict inconsistency does not require that we vacate a guilty verdict. Because jury lenity is a plausible explanation for the jury’s apparent inconsistency here, we should not second-guess the jury. The general conviction can be upheld because the evidence presented at trial was sufficient to sustain the jury’s conviction on second degree assault. McNeal, 145 Wn.2d at 361.

The special verdict in this case is separate and distinct from the underlying general conviction. Compare RCW 9A.36.021(l)(e) with RCW 9.94A.835. The legislature’s plain intent is that if the underlying crime is not a sex offense as defined in chapter 9A.44 RCW, then the special verdict will supplement a general conviction in order to determine if sex offender registration is warranted. This separate determination is made by the jury after the general determination of guilt or innocence. Because the general verdict and the special verdict are separate and distinct, it is not our place to second-guess the jury’s decision to render the two apparently inconsistent verdicts.

Finally, former RCW 4.44.440 was a civil procedure statute, not a criminal one. As we previously held in McNeal, 145 Wn.2d at 358 n.2, former RCW 4.44.440 cannot apply to criminal cases and therefore provides no basis for the dismissal of Goins’ conviction.

We therefore affirm the ruling of the Court of Appeals and uphold Goins’ conviction of second degree assault with intent to commit indecent liberties.

Johnson, Ireland, Bridge, and Fairhurst, JJ. concur.