Opinion
No. 30361-2-II.
Filed: May 25, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No: 01-1-00462-0. Judgment or order under review. Date filed: 08/22/2002. Judge signing: Hon. Toni a Sheldon.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
Rodney L. Gorm appeals his second degree assault conviction, contending that the jury's general verdict of guilty was inconsistent with its special verdict that Gorm was not armed with a firearm; correspondingly, he contends that there was insufficient evidence of second degree assault. He also contends that trial counsel was ineffective for failing to object to the jury verdicts that he claims are inconsistent. Finding that the verdicts are consistent, that there was sufficient evidence, and that Gorm received effective assistance, we affirm.
FACTS
On the evening of December 24, 2001, Cinda Johnson and Tamara Martin were at the Hoodsport Inn having drinks and playing darts when they met with Gorm and Pam Scott. Although Johnson had known Scott for years, she did not know Gorm very well. Gorm left the Inn at around 10:00 p.m., although he returned briefly to give Scott a cell phone.
Around midnight, Johnson drove Scott home. When Johnson pulled into the driveway, Gorm, who lived in a motor home at Scott's residence, approached Johnson's pickup truck while Scott was still in the vehicle. Johnson rolled down her window. Gorm stepped up to the window and put a gun to Johnson's neck. He said to her, '[H]ow do you like that.' II Report of Proceedings (RP) at 44-45. The gun looked similar to a short 9 mm Glock that Johnson's father used to have, although the lighting was not good. Johnson said she did not like it. Gorm replied, '[D]on't worry, the safety is on.' II RP at 45. Johnson had to tell Scott to get out of the car twice before Scott complied. Gorm did not remove the gun until Johnson began backing out of the driveway.
Upset, Johnson drove back to the Inn and talked to Kathy Guy and Martin about the incident. Martin noticed a circular mark on Johnson's neck. Martin called the police.
Deputy Michael O. Western and Detective Dean Byrd of the Mason County Sheriff's Office arrested Gorm at Scott's residence the next morning, December 25. The officers asked Gorm if he owned a gun. He indicated that he did and that he had shown it to Johnson the night before. The three went to look for the gun in Gorm's motor home. They were unable to locate the gun, but they did find a box for a Beretta pistol. Scott called the police later that day to tell them that she had found the gun the police were looking for. The gun she turned over was a .25 caliber Beretta pistol registered to Gorm.
Deputy Western, who was familiar with firearms, testified that Glock made some smaller compact guns similar in size to the .25 caliber Beretta.
Gorm was charged with second degree assault with a firearm enhancement. At trial, Gorm testified that he owned a novelty knife that looked like a gun that he kept on his belt loop. He denied pointing it at Johnson. He also denied telling the officers that he owned the Beretta and had shown it to Johnson.
The information alleged that Gorm did commit ASSAULT IN THE SECOND DEGREE, a Class B felony, in that [Gorm] did intentionally assault another person, . . . Cinda Johnson, with a deadly weapon, to-wit: a firearm . . . and it is further alleged . . . that at the time of the commission of the alleged offense, [Gorm] was armed with a firearm as defined in RCW 9.41.010. Clerk's Papers (CP) at 56-57.
Gorm did not object to any proposed jury instruction. The jury returned a general verdict of guilty on the assault charge but answered in the negative as to the firearm enhancement. After trial, the trial court denied Gorm's motion to set aside the guilty verdict, and the court sentenced Gorm to nine months' confinement, the high end of the standard range. Gorm appeals his conviction.
Of the pertinent jury instructions, No. 5 states, 'A person commits the crime of assault in the second degree when he or she assaults another with a deadly weapon.' CP at 47. Instruction No. 9 states, 'The term 'deadly weapon' includes any firearm, whether loaded or not.' CP at 51. And No. 10, the to-convict instruction, states:
To convict [Gorm] of the crime of assault in the second degree as charged, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 25th day of December, 2001, [Gorm] assaulted [Johnson] with a deadly weapon; and
(2) That the acts occurred in the State of Washington.
CP at 52.
ANALYSIS Inconsistent Verdicts and Sufficiency of the Evidence
Gorm contends that the general and special verdicts are inconsistent and the guilty verdict must be set aside. Correspondingly, he argues that based on the jury's finding that he was not armed with a firearm, there was insufficient evidence to convict him.
Inconsistent verdicts present error in the sense that the jury has not followed the court's instructions, but a variety of factors, including jury mistake, compromise, or lenity can lead to an inconsistent verdict. State v. Wilson, 113 Wn. App. 122, 132, 52 P.3d 545 (2002) (citing United States v. Powell, 469 U.S. 57, 65, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984)), review denied, 149 Wn.2d 1006 (2003). The first, mistake or confusion, may occur where the jury misunderstands the court's instructions or erroneously applies the law to the facts of the case; the second, compromise, may occur where a deadlocked jury negotiates some mix of acquittals and convictions; the third, lenity, also known as jury nullification, may occur where the jury acquits a defendant on one count while convicting on another count, based on its belief that the applicable law would result in an unjust punishment. State v. Goins, 113 Wn. App. 723, 730, 54 P.3d 723 (2002) (citing eric l. muller, the hobgoblin of little minds? our foolish law of inconsistent verdicts, 111 harv. l. rev. 771, 782-85 (1998)), review granted, 149 Wn.2d 1001 (2003).
In Powell, the Supreme Court rejected a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their cases the verdict was not the product of lenity, but of some error that worked against them. But the Court held that such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake. State v. Ng, 110 Wn.2d 32, 46, 750 P.2d 632 (1988) (citing Powell, 469 U.S. at 66).
Gorm did not object to the allegedly inconsistent verdicts at the time of trial. Thus, he may raise his claim for the first time on appeal only if it amounts to a manifest error affecting a constitutional right. RAP 2.5(a); State v. Scott, 110 Wn.2d 682, 686, 757 P.2d 492 (1988). Because an appellant does not show manifest error merely by showing that verdicts appear to be inconsistent, we limit our review of a claim of inconsistent verdicts to deciding whether sufficient evidence supported the verdicts. See State v. McNeal, 145 Wn.2d 352, 357-59, 37 P.3d 280 (2002).
In Goins, Division One of this court held that even where there are inconsistent general and special verdicts relating to the same charge, the general verdict will be upheld if there is substantial evidence to support it. 113 Wn. App. 742. See also State v. Ng, 110 Wn.2d 32, 750 P.2d 632 (1988) (based on considerations of jury lenity, upholding guilty verdicts on robbery charges based on sufficient evidence even though inconsistent with verdicts of not guilty on felony murder charges). The substantial evidence standard is satisfied where there is sufficient evidence from which the jury could rationally find the defendant guilty beyond a reasonable doubt. Ng, 110 Wn.2d at 48. On appeal, we view such evidence in the light most favorable to the State. McNeal, 145 Wn.2d at 359 (citing State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)).
Goins went even further in its holding than is necessary in the present case: there, the jury found the defendant guilty of assault with intent to commit indecent liberties. To do so, the jury had to find that the defendant intended to 'touch the sexual or other intimate parts of a person' for the purposes of 'gratifying sexual desire of either party.' Goins, 113 Wn. App. at 729. But in its special verdict, the jury found that the defendant did not commit the assault for the purpose of sexual gratification. Goins, 113 Wn. App. at 729. Here, the special verdict indicated only that Gorm was not armed with a firearm, but it did not necessarily rule out the possibility of another deadly weapon.
In the present case, substantial evidence supports the jury's guilty verdict on second degree assault because Gorm himself introduced sufficient evidence that he owned a gun and had shown it to Johnson the night before and that he owned a novelty knife that looked like a gun. RCW 9A.36.021(1) states in part: 'A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree: (c) . . . [a]ssaults another with a deadly weapon.' Moreover, the jury instructions defined 'deadly weapon' to include a firearm, but they did not state that a deadly weapon had to be a firearm. A 'deadly weapon' is defined as any explosive or loaded or unloaded firearm, and shall include any other weapon, device, instrument, article, or substance, including a 'vehicle' as defined in this section, which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.
RCW 9A.04.110(6) (emphasis added). Viewing the evidence in the light most favorable to the State, the jury could have found that Gorm pressed the pistol knife to Johnson's neck but failed to find beyond a reasonable doubt that the object was the Beretta or another firearm. Accordingly, we reject Gorm's contention that the verdicts are inconsistent, and we find that substantial evidence supports the second degree assault verdict.
Assistance of Counsel
Gorm next contends that he received ineffective assistance based on his trial counsel's failure to object to the allegedly inconsistent verdicts.
To show ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice occurs when, but for the deficient performance, the outcome would have been different. In Re Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). There is great judicial deference to counsel's performance and the analysis begins with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). If trial counsel's conduct can be characterized as legitimate trial strategy or tactics, then the defendant did not receive ineffective assistance. State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978).
Here, we presume that trial counsel's decision not to object had a legitimate tactical basis. Had counsel objected to any inconsistency between the general and specific verdicts, the trial court could have ordered the jury to resume deliberations in order to resolve the inconsistency. See CrR 6.16(b) ('When a special finding is inconsistent with another special finding or with the general verdict, the court may order the jury to retire for further consideration'); McNeal, 145 Wn.2d at 363 (so holding). And had the jury determined that Gorm was armed with a firearm when he committed the assault, he would have been subject to a mandatory three-year sentence enhancement, making his standard range 39 to 45 months instead of three to nine months. See RCW 9.94A.510(3)(b). Given the possible consequences of an objection, we cannot find that Gorm's counsel was ineffective for failing to object to the verdicts.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, J. and HUNT, J., concur.