The State of Washington, Respondent, v. John K. McNeal, Petitioner, 145 Wash. 2d 352

Alexander, C.J. The principal issues presented by this appeal are whether John McNeal’s failure to object at trial to what he now claims are inconsistent jury verdicts constituted a waiver of his right to raise that objection on appeal and, if so, whether his trial counsel’s failure to raise the objection on McNeal’s behalf amounted to ineffective assistance of counsel. Because we conclude that the jury was presented with sufficient evidence to support both verdicts, we answer each of these questions in the negative. Accordingly, we affirm the Court of Appeals. I.

FACTS On July 5, 1996, McNeal drove his car across the centerline of Bunker Creek Road in Lewis County, causing the car to strike another motor vehicle head-on. Although McNeal suffered a relatively minor injury, a broken arm, the driver of the other vehicle sustained serious injuries and a passenger in that car was killed. Shortly thereafter, a police officer who had arrived at the scene of the accident discovered a “fanny pack” in McNeal’s car which contained four baggies of methamphetamine, a used syringe, and a razor blade. The police officer also found $4,250 in cash in McNeal’s pants pocket.

McNeal was charged with vehicular homicide, vehicular assault, and possession of methamphetamine with the intent to deliver. The information charging vehicular assault contained the allegation that McNeal had operated his car while “under the influence of a drug.” Clerk’s Papers (CP) at 85. At trial, the jury was presented with evidence consistent with that allegation. Significantly, evidence of a test of McNeal’s blood was admitted and it revealed that he had a concentration of .31 milligrams of methamphetamine per liter of his blood. A jury found McNeal guilty of all three charges.

Because the jury was instructed that one is guilty of vehicular assault if he operates a motor vehicle while “under the influence of drugs” and “cause [s] serious bodily injury to another,” but was not instructed that operation of a vehicle in a reckless manner or while under the influence of alcohol were predicates for the vehicular assault charge, the vehicular assault verdict implied that McNeal was operating his motor vehicle while “under the influence of drugs” at the time he committed the offense. CP at 32.

On the other hand, in finding McNeal guilty of vehicular homicide the jury made special findings that McNeal operated the motor vehicle “with disregard for the safety of others” and that he was not “operating the motor vehicle Q while under the influence of drugs.” CP at 51. Although McNeal did not raise any objection at trial to the jury verdicts, he asserted at the Court of Appeals that the vehicular assault verdict was inconsistent with the vehicular homicide verdict in that the former implied that he was under the influence of a drug while the latter indicated that he was not.

This apparent inconsistency, he argued, rendered the vehicular assault verdict void. The Court of Appeals disagreed with McNeal and affirmed the trial court. We granted review on the limited issues of whether McNeal waived his right to challenge the vehicular assault verdict by failing to raise the alleged inconsistency of the verdicts at trial and, if so, whether his trial counsel’s failure to raise that objection on his behalf amounted to ineffective assistance of counsel. II. ANALYSIS A.

Waiver McNeal contends here, as he did at the Court of Appeals, that the vehicular assault verdict is irreconcilably inconsistent with the vehicular homicide verdict and, as a consequence, is void. He asserts in that regard that the special finding on the vehicular homicide verdict to the effect that he was not operating his vehicle while under the influence of an intoxicating drug is entirely inconsistent with the vehicular assault verdict that implied that he was under the influence of an intoxicating drug.

Although McNeal concedes that he did not object to either jury verdict at trial, he claims that the alleged inconsistency is a manifest error affecting a constitutional right that may be raised for the first time on appeal. RAP 2.5(a); State v. Scott, 110 Wn.2d 682, 686, 757 P.2d 492 (1988). The State, citing State v. Barnes, 85 Wn. App. 638, 668, 932 P.2d 669, review denied, 133 Wn.2d 1021, 948 P.2d 389 (1997), responds that McNeal waived his right to challenge what he now contends are inconsistent verdicts by failing to object to the alleged inconsistency prior to the time the jury was discharged.

While we agree with McNeal that a claim of manifest error affecting a constitutional right may be raised for the first time on appeal, an appellant does not establish manifest error merely by showing that jury verdicts appear to be inconsistent. We reach this conclusion because the appellant has the burden to demonstrate that the alleged error actually affected his or her rights. “[I]t is this showing of actual prejudice that makes the error ‘manifest’, allowing appellate review.” State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995) (emphasis added) (citing Scott, 110 Wn.2d at 688).

McNeal attempts to show manifest error by asserting that the special finding which supported the vehicular homicide verdict—that he was not operating his vehicle while under the influence of drugs—controls the general verdict that McNeal was operating his vehicle “under the influence of drugs.” That inconsistency between the verdicts, he contends, is prejudicial in that the vehicular assault conviction is void. Thus, he suggests a manifest error is presented. Our decision in State v.

Ng, 110 Wn.2d 32, 750 P.2d 632 (1988), guides us when we are called upon to determine whether an apparent inconsistency between jury verdicts renders a challenged conviction void. One of the defendants in that case, Wai-Chiu “Tony” Ng, was charged with 13 counts of first degree felony murder. The “to convict” jury instruction relating to each charge of felony murder required a finding by the jury that Ng participated in a robbery and caused a particular victim’s death.

Despite the fact that Ng had not disputed the State’s allegation that the killings had occurred, the jury rendered a verdict that he was not guilty on all of the counts of felony murder. It did, however, render a verdict that he was guilty of 13 counts of the lesser included offense of first degree robbery.

In rejecting Ng’s challenge to the robbery verdicts, we indicated that although the verdicts were “inconsistent,” the convictions should be upheld “[w]here the jury’s verdict is supported by sufficient evidence from which it could rationally find the defendant guilty beyond a reasonable doubt.” Ng, 110 Wn.2d at 48 (citing United States v. Powell, 469 U.S. 57, 67, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984)). We indicated that we reached this conclusion in order to protect “considerations of jury lenity” and to avoid the “problems inherent in second-guessing the jury’s reasoning.” Ng, 110 Wn.2d at 48.

Because we determined that the challenged jury verdicts were supported by sufficient evidence from which a rational trier of fact could find Ng’s guilt beyond a reasonable doubt, we held that the apparent inconsistency between the verdicts was not “reversible error.” Ng, 110 Wn.2d at 48. McNeal argues that Ng is inapplicable, pointing out that in that case we were confronted with general verdicts, some finding the defendant guilty and an equal number finding the defendant not guilty.

Here, he notes the inconsistency is between a general verdict of guilty on one charge and a special finding supporting a guilty verdict on another charge. The Ng rule, he posits, is, therefore, inapplicable and his objection to the verdicts was not waived. McNeal does not, however, provide any authority or convincing argument to support the distinction he draws.

After considering the argument, we are persuaded that it is as problematic for courts to second-guess a jury’s reasoning where the inconsistency is between a special finding and a general verdict as it is when the inconsistency is between two general verdicts. Indeed, the Court of Appeals has upheld jury verdicts despite an inconsistency between a general verdict and a special finding where there was “abundant evidence” to support each verdict. State v. Peerson, 62 Wn. App. 755, 766, 816 P.2d 43 (1991), review denied, 118 Wn.2d 1012, 824 P.2d 491 (1992).

In sum, we are persuaded that the rule we established in Ng is applicable here. Accordingly, we limit our review to the question of whether there is sufficient evidence in the record to support the jury’s finding of guilt. In determining whether evidence supports a jury verdict, we are required to view the evidence in a light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.” Salinas, 119 Wn.2d at 201.

Here, McNeal challenges only the sufficiency of the evidence supporting the vehicular assault verdict. A review of the record reveals that the jury was presented with significant evidence to support its determination that McNeal operated his motor vehicle while under the influence of drugs. As noted, there was evidence that McNeal’s blood contained a concentration of .31 milligrams of methamphetamine per liter. Washington State toxicologist Dr. Barry Logan testified about the effects that a person would experience with such a concentration of methamphetamine in his or her blood.

He indicated in that regard that among the symptoms of methamphetamine intoxication are fatigue, lethargy, and subdued behavior. He also testified that these symptoms are associated with the so-called “crash phase” of methamphetamine intoxication and can impair one’s ability to drive. Logan discussed an extensive study that he had made regarding accidents caused by drivers under the influence of methamphetamine. His study found that 85 percent of such accidents were caused by drivers who experienced “crash phase” symptoms and left their lane of travel.

The State produced testimony indicating that McNeal displayed these symptoms of methamphetamine intoxication. For example, three witnesses testified that McNeal appeared fatigued or lethargic at the time of the accident. Notably, a state trooper testified that McNeal’s demeanor was “lethargic . . . not real excited” and that he was “more subdued” than normal especially considering he broke his arm in the automobile accident. Verbatim Report of Proceedings (VRP) at 30, 31.

Similarly, when asked about the signs McNeal displayed indicating that he was under the influence of a controlled substance, a trooper testified that McNeal did not “have much of a reaction” at the time of the accident “considering the injuries he sustained.” VRP at 136. Likewise, an attending nurse testified that McNeal “seemed lethargic” when she was drawing his blood at the hospital. VRP at 177. Moreover, we believe that the act of driving into oncoming traffic with a .31 methamphetamine blood concentration is indicative of impairment.

This is consistent with Logan’s testimony that 85 percent of methamphetamine related accidents were caused by an impaired driver crossing the centerline. In sum, when this evidence is viewed in the light most favorable to the State, we conclude that it is sufficient to support the implied finding of the jury that McNeal was under the influence of methamphetamine as well as its verdict that he was guilty of vehicular assault.

Because there was sufficient evidence to support the vehicular assault verdict, the apparent inconsistency between that verdict and the vehicular homicide verdict may be attributed to “considerations of jury lenity.” In other words, it is reasonable to assume that the jury found McNeal guilty of vehicular homicide on the basis that he operated a motor vehicle with disregard for the safety of others, rather than while under the influence of drugs, believing that the former way of committing the offense implied less culpability than the latter way of committing the offense.

The vehicular assault verdict is, therefore, not void. Consequently, it cannot be said that the apparent inconsistency of the verdicts is a manifest error affecting a constitutional right. McNeal, therefore, waived his right to challenge the verdict by failing to raise the issue before the jury was discharged. B. Ineffective Assistance of Counsel McNeal contends, additionally, that his trial counsel was aware of the alleged inconsistency between the verdicts and that the failure to object before the jury was discharged constituted ineffective assistance of counsel.

To prevail on a claim of ineffective assistance of counsel, a defendant must establish both ineffective representation and resulting prejudice. State v. Rosborough, 62 Wn. App. 341, 348, 814 P.2d 679, review denied, 118 Wn.2d 1003, 822 P.2d 287 (1991). To establish ineffective representation, the defendant must show that counsel’s performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish prejudice, a defendant must show that but for counsel’s performance, the result would have been different. State v.

Early, 70 Wn. App. 452, 460, 853 P.2d 964 (1993), review denied, 123 Wn.2d 1004, 868 P.2d 872 (1994). There is a strong presumption that trial counsel’s performance was adequate, and exceptional deference must be given when evaluating counsel’s strategic decisions. Strickland, 466 U.S. at 689. If trial counsel’s conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant received ineffective assistance of counsel. State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978).

Here, McNeal’s trial counsel’s failure to object to what he now claims are inconsistent verdicts was not ineffective assistance. As discussed above, the failure to object did not amount to manifest error affecting a constitutional right because each verdict was supported with sufficient evidence. Accordingly, McNeal was not prejudiced by his trial counsel’s failure to object to what he now claims are inconsistent verdicts. Furthermore, it is likely that his trial counsel’s decision was strategic.

Had McNeal objected at trial to the apparent inconsistency between jury verdicts, the trial court might well have ordered the jury to resume deliberations in order to resolve the alleged inconsistency.

Because the jury had already found McNeal guilty on both charges, his counsel could have rationally assumed that the jury would resolve the inconsistency by returning a special finding on the vehicular homicide charge that McNeal drove a motor vehicle while “under the influence of drugs” in addition to driving “with disregard for the safety of others.” McNeal’s counsel might have feared that the trial court, faced with such findings, would impose a greater penalty than it would have imposed based merely on McNeal’s driving with disregard for the safety of others.

As indicated above, a special finding by the jury on the vehicular homicide charge that McNeal was under the influence of drugs would have increased the seriousness level of that offense from VII to IX. RCW 9.94A.320. This would have resulted in a corresponding increase in McNeal’s standard sentence range. RCW 9.94A.310. By not objecting, McNeal’s counsel eliminated the possibility that the jury might harmonize the verdicts in a way that would not have been favorable to his client.

The record, therefore, supports a conclusion that counsel’s failure to object was a tactical decision intended to avoid the imposition of harsher punishment on the client. Accordingly, we defer to trial counsel’s decision and conclude that his failure to object to the verdicts was not ineffective assistance. III. CONCLUSION For reasons stated above, we affirm the Court of Appeals. We hold that because the vehicular assault verdict is supported by sufficient evidence the apparent inconsistency between the vehicular assault and vehicular homicide verdicts is not a manifest error affecting a constitutional right.

We further hold that McNeal’s trial counsel did not provide ineffective assistance. Affirmed. Madsen, Ireland, and Bridge, JJ., and Guy, J. Pro Tern., concur. RCW 46.61.522 provides that a person is guilty of vehicular assault if he operates or drives any vehicle: (

a) in a reckless manner, or (

b) while under the influence of intoxicating liquor or any drug and this conduct is the proximate cause of serious bodily injury to another. The dissent asserts that “[t]his case is controlled by RCW 4.44.440,” noting that this statute says that “a special finding” controls “the [inconsistent] general verdict.” Dissent at 364; RCW 4.44.440 (emphasis added). Even assuming that RCW 4.44.440, a civil procedure statute, applies to criminal cases, it is clear that that statute does not control here.

A plain reading of the statute reveals that “a” special finding controls only “the” general verdict on the charge to which it relates. This does not mean, as the dissent asserts, that a special finding to one charge controls a verdict on a separate charge.

Had the legislature such an intention, it would likely have used the phrase “general verdicts” rather than the phrase “the general verdict.” Although the dissent indicates agreement with our analysis that the “power of [jury] lenity is ... of utmost importance,” dissent at 366, it notes that Ng addressed “inconsistencies between convictions and acquittals, not inconsistencies between two or more convictions,” dissent at 364, and asserts that the Ng rule is not applicable because “lenity is not an issue here since the jury convicted on all counts.” Dissent at 366.

The dissent’s analysis fails to consider that jury lenity holds an important role even where the jury convicts on all counts. Indeed, if the jury had made a special finding on the vehicular homicide charge that McNeal was under the influence of drugs, the finding would have increased the seriousness level of that offense from VII to IX under RCW 9.94A.320 and resulted in a corresponding increase in McNeal’s standard sentence range. Dr.

Logan, described two stages of methamphetamine intoxication, the “stimulant phase” and the “crash phase.” The stimulant phase, he explained, is the initial high immediately following the administration of the drug and is often accompanied by a person staying “awake, [or] alert for a day or more.” Verbatim Report of Proceedings (VRP) at 197. Logan characterized the crash phase as the result of “sleep debt” during which time a person falls in and out of a “restless, prolonged sleep.” VRP at 198.

Logan indicated that a person can have the same methamphetamine blood concentrations in each phase, yet experience different symptoms. Logan also indicated that each set of symptoms can impair the ability to drive a car. Stimulant phase symptoms include being “excited, stimulated, [and] experiencing rapid flight of ideas.” VRP at 215. Crash phase symptoms include being “fatigued .. . sleepy . . . [and subject to] effectively just passing] out.” VRP at 215-16.

The jury was instructed that “[a] person is under the influence of or affected by the use of drugs if the person’s ability to drive a motor vehicle is lessened in any appreciable degree.” CP at 33. See Ng, 110 Wn.2d at 48.