Opinion
No. 47006-0-I.
Filed: June 11, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 99-1-06534-1, Hon. Patricia H. Aitken, June 26, 2000, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
David B. Koch, Nielsen Broman Associates Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
David M. Seaver, King County Pros Attorney, 516 3rd Ave #w554, Seattle, WA 98104.
Alonzo Bradley appeals his conviction of violation of a no-contact order, arguing that his conviction must be reversed because the general verdict is inconsistent with the special verdict. Because we conclude that the general verdict and the special verdicts are not irreconcilably inconsistent, we affirm the conviction.
FACTS
Bradley and Diane Bush were involved in an 'on again/off again' relationship for several years. In 1998, Bradley was convicted of the fourth degree assault of Bush. At sentencing on that charge, the trial court entered a two-year no-contact order prohibiting Bradley from contacting Bush.
Bradley and Bush have a daughter. On July 30, 1999, Bush picked up Bradley and their daughter at a bus stop and took them to her apartment.
When Bush and Bradley were putting their daughter and Bush's other daughter to bed, Bradley asked the other daughter to give him a hug and a kiss. In reply, she spat in Bradley's face.
Bradley became angry at the way Bush handled the situation. According to Bush, Bradley refused to allow her to leave the children's bedroom, grabbed her, and pushed her onto the bed. Finally, she escaped the children's bedroom, and Bradley followed her into the master bedroom. Bush testified that Bradley choked her into unconsciousness. Bradley admitted to grabbing Bush around the throat, but denied choking her.
Bush's stepfather telephoned, and Bush told him that she and the children were on the way to his house. Bradley insisted that he go with them. Bush drove to her stepfather's house and took the children inside, leaving the keys in the car. Bradley waited in the car. Once inside the house, Bush called the police. When Bush did not return to the car, Bradley drove away. The police spotted Bradley in the car and activated their emergency lights. Bradley did not stop, but rather led the police on a high-speed chase for several miles. Eventually, the police stopped the chase because of safety concerns.
Bradley was charged with first degree assault, domestic violence felony violation of a post-sentence court order, unlawful imprisonment, felony harassment, and attempting to elude a pursuing police vehicle. Following a jury trial, Bradley was convicted of fourth degree assault, misdemeanor violation of a post-sentence court order, felony harassment, and attempting to elude a pursuing police vehicle. The court sentenced him within the standard range.
JURY INSTRUCTIONS AND VERDICTS
The instructions and verdicts relevant to this appeal concern the charge of violation of the no-contact order. The trial court gave the State's proposed 'to convict' instruction, under which the State was required to prove:
(1) That on or about the 30th day of July, 1999 the defendant willfully had contact with Diane Bush; (2) That the defendant committed an assault against Diane Bush; (3) That such contact was prohibited by a post-sentence court order; (4) That the defendant knew of the existence of the post-sentence court order; (5) That the acts occurred in the State of Washington.
This instruction differs from the pattern 'to convict' instruction in that it added the second element, requiring the State to prove that Bradley committed an assault against Bush. Without this element, the crime of violation of a no-contact order would be a gross misdemeanor. See RCW 10.99.050(2)(a) (referring to punishment under RCW 26.50.100). The addition of this element raised the charged offense to a class C felony. Bradley was convicted of a gross misdemeanor on this charge.
The jury returned a general verdict finding Bradley guilty of this offense.
The court gave the jury a special verdict, which the State also proposed, and which the jury was to answer only if it found Bradley guilty of the crime of violation of a post-sentence court order. The special verdict asked, 'Was the conduct that constituted a violation of the post-sentence court order an assault?' The jury's answer to the special verdict was 'no.'
DISCUSSION
Bradley argues that the jury's special verdict, finding that the conduct that constituted a violation of the no-contact order was not an assault, is irreconcilably inconsistent with the general verdict, in which the jury found as an element of the 'to convict' instruction that Bradley did commit an assault against Bush. Pursuant to RCW 4.44.440, he argues, the special verdict must control and his conviction must be reversed and the charge dismissed.
'When 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.'
There is nothing in the record to indicate that Bradley objected to the allegedly inconsistent verdicts before the trial court discharged the jury. He argues that his failure to so object does not preclude him from raising the issue on appeal. The State does not respond to this argument.
Because we conclude that the jury's general and special verdicts are not irreconcilably inconsistent, we do not reach the waiver issue.
See State v. Burke, 90 Wn. App. 378, 386, 952 P.2d 619, review denied, 136 Wn.2d 1018 (1998). We note, as did the court in Burke, that in State v. Barnes, 85 Wn. App. 638, 932 P.2d 669, review denied, 133 Wn.2d 1021 (1997), the court held that the defendant waived the right to raise the inconsistent verdicts issue on appeal because he failed to object to the verdicts before the trial court discharged the jury. The court in Barnes cited a civil case in support of its holding and did not consider whether a different rule should apply in criminal cases. The court in State v. McNeal, 98 Wn. App. 585, 991 P.2d 649 (1999), review granted, 140 Wn.2d 1013 (2000), reached a contrary result, but did not squarely address the court's holding in Barnes on the waiver issue. The Supreme Court granted review in McNeal, but only on an issue different from the waiver issue.
A special verdict will not control unless the special verdict and the general verdict cannot be reconciled. Where the two verdicts can be harmonized, through consideration of the entire record including the evidence and the instructions, we have a duty to harmonize them. 'If the special verdict 'is susceptible of two constructions, one of which will support the general verdict and the other of which will not, [the court] will give such construction as will support the general verdict."
State v. Baruso, 72 Wn. App. 603, 616, 865 P.2d 512 (1993), review denied, 124 Wn.2d 1008 (1994).
Burke, 90 Wn. App. at 386; see also State v. Peerson, 62 Wn. App. 755, 766, 816 P.2d 43 (1991) (a special verdict and a general verdict are not irreconcilably inconsistent if they can be harmonized 'without doing violence to logic').
Burke, 90 Wn. App. at 386 (quoting State v. Robinson, 84 Wn.2d 42, 45, 523 P.2d 1192 (1974)).
Here, the special verdict is susceptible of two constructions, as evidenced by the parties' arguments on appeal. Under Bradley's interpretation, the special verdict does not support the general verdict; under the State's interpretation, it does. Bradley interprets the general verdict as containing the jury's implicit finding that Bradley did assault Bush and the special verdict as meaning that the jury found that he did not assault Bush. The State argues the general verdict means that the jury did find that Bradley assaulted Bush and the special verdict means that the jury found the assault was not the conduct which violated the no-contact order, not that Bradley did not assault Bush. Under this interpretation, the conduct that violated the no-contact order was Bradley's being in Bush's presence, i.e., the fact that he was 'contacting' her, from the time she picked him and their daughter up at the bus stop until the time she entered her stepfather's house.
The State's interpretation does not do violence to logic. Under our duty to harmonize a special verdict and a general verdict whenever possible, we must assume that the jury found that Bradley assaulted Bush, but did not find that the assault was the conduct that constituted the violation of the no-contact order. It is certainly possible that the jury viewed Bradley's presence in Bush's car and apartment, while Bush was also there, as the conduct that violated the no-contact order. By interpreting the verdicts in this way, we can harmonize them. We therefore adopt the State's interpretation of the special verdict because it supports the general verdict. The general verdict and the special verdict are not irreconcilably inconsistent. Bradley's conviction is affirmed.
Id. at 386; State v. Eker, 40 Wn. App. 134, 140, 697 P.2d 273, review denied, 104 Wn.2d 1002 (1985).