Appeal from Superior Court of Yakima County. Docket No: 95-1-00569-7. Date filed: 06/15/95. Judge signing: Hon. Michael E. Schwab.
Authored by Dennis J. Sweeney. Concurring: Frank L. Kurtz, Stephen M. Brown.
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J. If a special jury finding is susceptible of two reasonable constructions, one that supports the verdict and one that does not, we accept the construction that supports the general verdict. State v. Davis, 35 Wash. App. 506, 508-09, 667 P.2d 1117 (1983), aff'd, 101 Wash. 2d 654, 682 P.2d 883 (1984). A jury found Danette Garcia guilty of first degree robbery. By special verdict, the jury was asked: "Was the defendant DANETTE JEAN GARCIA armed with a deadly weapon at the time of the commission of the crime." The jury answered no. Ms. Garcia contends the verdicts are inconsistent and therefore the conviction should be reversed.
She also argues the court improperly admitted evidence of her prior conviction for false reporting, and that the prosecutor's misconduct denied her a fair trial. We affirm.
Inconsistent Verdicts. Ms. Garcia contends that to convict her of robbery in the first degree, the jury had to find that during the commission of the robbery, or in immediate flight therefrom, she or an accomplice was armed with a deadly weapon. She urges that the general and special verdicts are inconsistent because the special verdict indicated that neither she nor her accomplices were armed. We do not agree.
"Where a general verdict and the special finding can be harmonized by considering the entire record of the case, including the evidence and the instructions, it is the duty of the court to harmonize them." Davis, 35 Wash. App. at 508. In Davis, the unarmed defendant kept watch while an accomplice pointed a gun at a store clerk. The jury was instructed that the defendant was guilty of first degree robbery if he or an accomplice committed the robbery. It was also advised that if the accomplice was armed, the defendant was deemed to be armed. By special verdict, the jury was asked, "'Was the defendant, Michael Curtis Davis, armed with a deadly weapon at the time of the commission of Robbery in the First Degree?'" Id. at 508. The jury answered "no" but found the defendant guilty.
Division Two of this court observed that the special verdict was susceptible of two meanings. First, it could mean that the jury did not believe the defendant was guilty under the theory of accomplice liability.
Second, the special verdict form could be interpreted to mean that the defendant did not possess a weapon during the robbery. Id. at 509. The court held that the latter interpretation followed logically from the evidence. Because the defendant in Davis could still be found guilty even with a negative finding of possession, the special finding was consistent with the evidence and consistent with the general verdict. Id. at 509.
The jury here heard the evidence that Ms. Garcia and the victim were clothes shopping. The victim had approximately $900 in his wallet. When he paid for her clothing, Ms. Garcia was close by. Later that evening, she telephoned the victim and asked him for a ride. While driving, they saw two men. Ms. Garcia, who was unarmed, convinced the victim to give the men a ride. When the vehicle stopped, one of the men came to the driver's side window and asked the victim for his money. The second man pulled a gun and fired some shots.
Like the defendant in Davis, Ms. Garcia did not possess a weapon during the robbery, but her accomplice did. The jury found her guilty under a theory of accomplice liability. A special finding that she personally was not armed is consistent with the evidence, instructions, and the general verdict. The special verdict is susceptible to an interpretation that supports the general verdict. The court did not err.
Admission of Evidence. Ms. Garcia next contends the court erred in admitting evidence of her prior conviction of false reporting. She asserts that had the court inquired it would have discovered that the prior conviction arose after she withdrew a domestic violence complaint to avoid being beaten. Ms. Garcia concludes the prior offense did not involve fraud or dishonesty.
Ms. Garcia's explanation for the prior conviction is outside the trial record. We therefore do not consider it. See State v. Crane, 116 Wash. 2d 315, 335, 804 P.2d 10 (1991) (reviewing court will not consider matters outside the trial record); see also State v. Stockton, 97 Wash. 2d 528, 530, 647 P.2d 21 (1982) (matters referred to in the brief but not included in the record cannot be considered on appeal).
Evidence of a prior conviction involving dishonesty is admissible to attack the credibility of a ...