(dissenting) — The majority attempts to reconcile two logically inconsistent convictions by relying on a rule of law developed to address a situation entirely different from ours. The rule from State v. Ng, 110 Wn.2d 32, 750 P.2d 632 (1988) applies to inconsistencies between convictions and acquittals, not to inconsistent convictions. Neither does Ng apply to inconsistencies between special verdicts and general verdicts.
This case is controlled by RCW 4.44.440, under which special verdicts control general verdicts. Here the jury returned a special verdict convicting McNeal of vehicular homicide, and found he was not under the influence of drugs. This is in direct contrast to its general verdict convicting him of vehicular assault, as part of which the jury found McNeal was under the influence of drugs. The two verdicts cannot be reconciled, wherefore the special finding McNeal was not under the influence controls. Under the law of this case, driving under the influence was the only basis upon which this jury could find McNeal guilty of vehicular assault. This basis was removed as part of the homicide verdict. I would therefore vacate McNeal’s assault conviction.
Ng Does Not Apply to Inconsistent Convictions
Although the majority opinion correctly sets forth the requirements of the Ng rule in its abstract, it fails to recognize this rule does not apply to our situation. The Ng rule applies to inconsistencies between convictions and acquittals, not inconsistencies between two or more convictions. See Ng, 110 Wn.2d at 45. See generally W. E. Shipley, Annotation, Inconsistency of Criminal Verdict as Between *365Different Counts of Indictment or Information, 18 A.L.R.3d 259, 283 § 5 (1968) (discussing decisions recognizing the distinction between conviction-acquittal inconsistencies and conviction-conviction inconsistencies). In Ng we declined to vacate convictions for robbery based on inconsistent acquittals for felony murder returned by the same jury. Ng, 110 Wn.2d at 45. We held convictions will not be reversed even if inconsistent with acquittals on other counts as long as “the jury’s verdict is supported by sufficient evidence from which it could rationally find the defendant guilty beyond a reasonable doubt.” Id. at 48; cf. majority at 358.
Our decision in Ng was based on United States Supreme Court decisions in Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932) and United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). See Ng, 110 Wn.2d at 48. A careful study of Dunn and Powell reveals the critical distinction between conviction-acquittal inconsistencies and conviction-conviction inconsistencies and why Ng does not apply here.
The facts of Dunn stem from the days of prohibition. Dunn was indicted for maintaining a common nuisance of selling liquor, unlawful possession of liquor, and unlawful sale of liquor. Dunn, 284 U.S. at 391-92. Although he was acquitted of the latter two counts, Dunn was convicted of the first count. Id. Despite the apparent inconsistency of the verdicts the Court declined to strike down Dunn’s conviction because to do so would require speculation or improper inquiry into the jury’s basis for returning the verdicts. Id. at 393-94.
The Court reaffirmed Dunn some 50 years later in Powell, 469 U.S. 57.
Like Dunn and Ng, but unlike here, Powell addressed inconsistent acquittals and convictions. The jury in Powell acquitted the defendant of the predicate crimes of conspiracy to possess cocaine and possession of cocaine but convicted on the compound crime of using the telephone to facilitate these crimes. Powell, 469 U.S. at 60. Neverthe*366less, the Court refused to vacate the guilty verdict merely because it was inconsistent with the acquittals. Id. Rather it followed Dunn and rejected “as imprudent and unworkable [] a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them.” Powell, 469 U.S. at 66.
Important to the Court’s decision was that very notion of jury lenity. The Powell Court recognized when the inconsistency is between a conviction and an acquittal, letting the judgment stand gives the defendant “the benefit of [his or] her acquittal on the counts on which [he or] she was acquitted.” Id. at 69. The same is obviously not true when, as here, the inconsistency is between factual findings in two convictions. The majority discusses lenity but fails to recognize that distinction—lenity is not an issue here since the jury convicted on all counts.
Lenity played an important role in Dunn and Powell, which is crucial to understand why it plays no role here. The rule expressed in Ng, stemming as it does from Dunn and Powell, is based on courts’ respect for the historic role of juries in the Anglo-American criminal justice system. See Powell, 469 U.S. at 65-66. In general, courts have taken the approach that to vacate a conviction based on inconsistent acquittals would require voiding the judgment as a whole, including the acquittals. See generally Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L. Rev. 771 (1998). Thus the Ng rule is based in large part on deference to the “unreviewable power of a jury to return a verdict of not guilty for impermissible reasons.” Harris v. Rivera, 454 U.S. 339, 345-46, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981). Should a court strike down a judgment merely because a conviction is inconsistent with an acquittal, it would upset the jury’s function “as a check against arbitrary or oppressive exercises of power by the Executive Branch.” Powell, 469 U.S. at 65-66.
This power of lenity is of course of utmost importance. However, recognizing the inconsistent factual findings in *367convictions would in no way jeopardize the traditional role of juries to return acquittals for any reason, or no reason at all. Applying that principle here, recognizing the inconsistency between the conviction for vehicular assault, in which the jury found McNeal was under the influence of drugs, and that for vehicular homicide, in which the jury found McNeal was not so influenced, would not undermine a jury’s power “to return a verdict of not guilty for impermissible reasons.” Harris, 454 U.S. at 345-46 (emphasis added). Again, there is no verdict of not guilty to strike down.
This is why we do not engage in speculation or inquiries into jury deliberations by trying to decide what the jury meant by convicting on one count and acquitting on another. Cf. Powell, 469 U.S. at 66. To vacate a conviction based on an inconsistent acquittal would require us to assume “the acquittal on [one of the counts] was proper— the one the jury ‘really meant.’ This, of course, is not necessarily correct; all we know is that the verdicts are inconsistent.” Id. at 68.
The propriety of Dunn, Powell, and Ng aside, no such divine speculation or improper inquiry is required here. We need not ask ourselves what the jury must have been thinking in rendering inconsistent convictions and acquittals since that is not where the inconsistency lies.
All we need do is to look at the face of the two convictions to realize they are logically inconsistent. McNeal cannot be both under the influence of drugs and not under the influence of drugs all at the same time. Cf. Rosenthal v. United States, 276 F. 714 (9th Cir. 1921) (striking down logically inconsistent verdicts which found the defendant guilty of both selling and receiving the same stolen goods); Thomas v. United States, 314 F.2d 936 (5th Cir. 1963) (striking down as inconsistent convictions for smuggling marijuana into the United States and obtaining the same marijuana in the United States); Allison v. Mayo, 158 Fla. 700, 29 So. 2d 750 (1947) (striking down as inconsistent convictions for breaking and entering and also of breaking without entering).
*368On that issue, how to address logically inconsistent guilty verdicts, neither the Supreme Court nor we have spoken. See, e.g., Powell, 469 U.S. at 69 n.8 (“Nothing in this opinion is intended to decide the proper resolution of a situation where a defendant is convicted of two crimes, where a guilty verdict on one count logically excludes a finding of guilt on the other.”). See also Muller, supra, at 773 n.2.
This critical distinction between conviction-acquittal inconsistencies and conviction-conviction inconsistencies was summarized in United States v. Daigle, 149 F. Supp. 409 (D.D.C.), aff’d, 248 F.2d 608 (D.C. Cir. 1957):
It has often been held that rational consistency in a verdict is not necessary, and that each count in the indictment is to be regarded as if it were a separate indictment. Dunn[ v. United States], 284 U.S. [390,] 393[, 52 S. Ct. 189, 76 L. Ed. 356 (1932)]. Where inconsistent verdicts of conviction and acquittal are returned, it has been said: “While the verdict as to each count must be consistent in itself, the verdicts on the several counts need not be consistent with each other. The question ... is not whether the verdict of guilty ... is consistent with the verdict of acquittal on the other counts. It is whether it is consistent with the evidence, that is whether the evidence supports the verdict, and this is true even though the inconsistency can be explained upon no rational considerations.”
On the other hand, where a guilty verdict on one count negatives some fact essential to a finding of guilty on a second count, two guilty verdicts may not stand.
Daigle, 149 F. Supp. at 413-14 (citations omitted) (quoting Mogoll v. United States, 158 F.2d 792, 793, rev’d on other grounds, 333 U.S. 424, 68 S. Ct. 487, 92 L. Ed. 783 (1948)).
Here, the jury’s verdict on vehicular homicide negatives the one fact on which a finding of guilty for vehicular assault hinged. In its homicide verdict the jury specifically found McNeal was not operating under the influence. Because of the erroneous information and instruction, that was the only option on which McNeal could be found guilty of vehicular assault. Consequently, the assault conviction cannot stand.
*369Ng Does Not Apply to Inconsistencies Between Special Verdicts and General Verdicts
Furthermore, Ng does not control the interaction between inconsistent general and special verdicts. Ng was decided based on inconsistent general verdicts and did not address inconsistencies between general and special verdicts. 110 Wn.2d at 48. The majority rejected McNeal’s argument to this effect, claiming there is no authority to support this distinction. See majority at 359. Quite the contrary, RCW 4.44.440 provides all the authority we need:
4.44.440 Special verdict controls. 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.
This statute applies in criminal proceedings. State v. Robinson, 84 Wn.2d 42, 45, 523 P.2d 1192 (1974).
Based on the plain language of RCW 4.44.440, the special verdict on the vehicular homicide count controls the general verdict on the vehicular assault charge. Thus, the jury’s finding as part of the vehicular homicide conviction that McNeal was not under the influence of drugs controls. Consequently, the jury’s conviction on the vehicular assault, which hinged on McNeal being so influenced, should be vacated on this ground as well.
Conclusion
The logical inconsistency between the jury’s homicide and assault verdicts is a manifest error, which McNeal properly could raise for the first time on appeal. See State v. Scott, 110 Wn.2d 682, 686, 757 P.2d 492 (1988); RAP 2.5(a)(3). I would hold RCW 4.44.440 mandates special verdicts control inconsistent general verdicts. Pursuant to this mandate the jury’s special finding McNeal was not under the influence of drugs controls. This renders his *370vehicular assault conviction void. I would vacate this conviction, wherefore I dissent.
Smith and Johnson, JJ., concur with Sanders, J.