(concurring) — Although I agree with the majority that the conviction in this case should be affirmed, I would do so because the two verdicts in this case are not inconsistent. Accordingly, I respectfully concur in the majority.
Analysis
The majority states on page 732 that the verdicts are irreconcilably inconsistent, but then states on pages 736-37 that the two verdicts can be interpreted as separate and consistent. Instead, I would simply hold that the two verdicts rendered by the jury in this case are not inconsistent. As the majority correctly notes, the two verdicts are independent of each other, they serve different purposes, and the language in the two verdicts is different based upon differences in the language of the relevant statutes.
In addition, and more importantly, the jury was not required to determine whether the State proved the elements of indecent liberties, including whether the defendant engaged in a “touching of the sexual or other intimate parts of a person done for the purposes of gratifying sexual desire of either party or a third party,” (RCW 9A.44.010(2)) because Matthew Goins was not charged with the crime of indecent liberties. Rather, in returning a guilty finding on assault in the second degree, the jury needed only to find that Goins assaulted his victim with the intent to commit indecent liberties. Had the State been required to prove that Goins actually committed the crime of indecent liberties, the claim of irreconcilable verdicts perhaps would have been debatable. Instead, it was not necessary for the jury to find that Goins actually touched his victim within the definition of sexual contact. Of course, if Goins had been *740charged with indecent liberties, the second verdict relating to sexual motivation would have been unnecessary because sex offender registration is triggered by a conviction for indecent liberties.
Even where a general verdict and a special finding are seemingly inconsistent, a special finding will not control a general verdict unless the two are irreconcilably inconsistent. State v. Holmes, 106 Wn. App. 775, 779, 24 P.3d 1118 (2001); State v. Baruso, 72 Wn. App. 603, 616, 865 P.2d 512 (1993); see also State v. Peerson, 62 Wn. App. 755, 765, 816 P.2d 43 (1991). Where a special verdict1 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. Holmes, 106 Wn. App. at 779; State v. Robinson, 84 Wn.2d 42, 45, 523 P.2d 1192 (1974). In Holmes, the jury found in the general verdict that the defendant was guilty of first degree robbery because he had been armed with a deadly weapon. 106 Wn. App. at 778-79. However, the jury rejected the deadly weapon sentence enhancement. Id. at 778. The court found that the two verdicts were reconcilable because the definition of deadly weapon for the general verdict was different from the one for the special finding. Id. at 779-80; RCW 9A.04.110(6); former RCW 9.94A.125 (currently RCW 9.94A.602, recodified by Laws of 2001, ch. 10, § 6). In that case, the jury was instructed that a deadly weapon for purposes of the robbery charge was “ ‘any weapon, device, instrument, or article, which under the circumstances in which it is used,... is readily capable of causing death or substantial bodily injury.’ ” 106 Wn. App. at 780 (emphasis omitted) (quoting Clerk’s Papers). However, the instruction defining deadly weapon for the sentencing enhancement provided, “ ‘an implement or instrument that has the capacity to inflict death and, from the manner in which it is used, is likely to produce or may easily produce death.’ ” Id. (emphasis omitted). The court pointed out that the jury could have reasonably concluded under the circumstances *741that the weapon the defendant had been carrying, a utility knife, might be “ ‘readily capable of causing . . . substantial bodily injury’ ” but it was not “ ‘likely to produce’ ” or would not “ ‘easily produce death.’ ” Id. at 780. Thus, the jury could conclude that the knife was a deadly weapon for the purpose of finding the defendant guilty of the first degree robbery but not a deadly weapon for the purpose of enhancing the sentence under the special finding. Holmes, 106 Wn. App. at 779-80.
Here, as in Holmes, the difference in language between the verdict forms as well as the fact that the State was not required to prove that Goins committed the crime of indecent liberties, demonstrate that the verdicts are easily reconcilable.
Chambers, J., concurs with Madsen, J.
A “special verdict” here means a special finding.