(dissenting) — Two issues are presented: (1) whether the conviction of a man charged with the single offense of second degree assault with intent to commit indecent liberties must be reversed when the jury finds by special verdict that an essential element of that offense is not present; and (2) whether former RCW 4.44.440 (Code of 1881, § 243), amended by Laws of 2003, ch. 406, § 24,2 applies to criminal cases. I answer yes to both. But before I explain my reasons I dispose of any contention these verdicts might be viewed as consistent with each other.
I. The Verdicts are Inconsistent
Matthew Goins was convicted by general verdict of second degree assault with the intent to commit indecent liberties; however, by subsequent special verdict the jury specifically found Goins was not sexually motivated. The majority acknowledges these verdicts are irreconcilably inconsistent with each other. Majority at 732 (“[T]he verdicts are irreconcilably inconsistent.”). The concurrence then opines, without misgiving, the verdicts are consistent with each other, reasoning “the jury was not required to determine whether the State proved the elements of inde*743cent liberties . . . because Matthew Goins was not charged with the crime of indecent liberties.” Concurrence at 739.
The elements of second degree assault as defined by RCW 9A.36.021(l)(e), the subsection pertinent to Goins’ case, are (1) assault and (2) intent to commit a felony. The named felony was indecent liberties. Clerk’s Papers (CP) at 16; RCW 9A.44.100(2) (classifying indecent liberties as a felony). Intending to commit indecent liberties requires an intent to have “sexual contact” with the victim, RCW 9A.44.100(1), which occurs only when the perpetrator “touch [es] ... the sexual or other intimate parts of a person... for the purpose of gratifying sexual desire of either party or a third party,” RCW 9A.44.010(2). “Intent” is statutorily defined as “actfing] with the objective or purpose to accomplish a result which constitutes a crime.” RCW 9A.08.010(l)(a). To intend to commit indecent liberties, therefore, Goins must have acted to achieve the result of touching the sexual or other intimate parts of his alleged victim, Angela Z., to gratify his sexual desire.3
The concurrence apparently takes the view the jury did not have to find Goins acted to gratify his sexual desire. If such were the case, then a man who punches a woman in the breast4 would be guilty of assault with intent to commit indecent liberties, regardless of whether he intended to act with a sexual purpose. Certainly the man would be guilty of assault, as he unlawfully touched the woman with criminal intent. See State v. Aumick, 126 Wn.2d 422, 426 n.12, 894 P.2d 1325 (1995). But one cannot reasonably claim the man acted with the intent to commit indecent liberties.
*744Though the special verdict asked the jury whether Goins “commit[ted] the crime with sexual motivation,” CP at 34 (emphasis added), the instructional definition of “[s]exual motivation” explicitly required a finding that Goins acted “for the purpose of his .. . sexual gratification,” CP at 22. Thus, the jury was asked for the purposes of both verdicts whether Goins acted “for the purpose of his ... sexual gratification.” Id.; see also CP at 20 (defining “sexual contact” with the language of RCW 9A.44.010(2)). The jury answered yes in the general verdict but no in the special verdict. Either Goins committed assault with sexual motivation or he did not. It cannot be both. Consequently, the guilty verdict of the crime of second degree assault with intent to commit indecent liberties cannot consistently coexist with a simultaneous finding that Goins acted without sexual motivation.
II. Inconsistent Verdicts in Cases Where Only One Count Is At Issue Cannot Stand
Because the verdicts are clearly inconsistent, the remaining issue is the appropriate remedy. The majority opines Goins can still be found guilty of second degree assault even though an essential element of that crime (sexual motivation) was affirmatively found by the jury not to be existent. See majority at 737 (“[T]he very nature of inconsistent verdicts is that they are irrationally inconsistent; this alone does not render inconsistent verdicts void.”). This conclusion belies the elementary rule in constitutional jurisprudence that each element of a crime must be found by a unanimous jury beyond a reasonable doubt. U.S. Const. amends. VI, XIV; Const, art. I, § 21; Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); In re Winship, 397 U.S. 358, 362, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Crediford, 130 Wn.2d 747, 759, 927 P.2d 1129 (1996); State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984). Here the jury found by special verdict that an essential element of second degree assault, namely *745“intent to commit a felony,” RCW 9A.36.021(l)(e), was not proved to the jury beyond a reasonable doubt.
Crucial to the majority’s holding is its classification of the special verdict as “separate and distinct from the underlying conviction.” Majority at 735. Yet the jury could not find Goins’ intent to have sexual contact unless it found Goins acted with sexual motivation. See supra at 743. Though the majority certainly is correct that the legislature did not intend every person convicted of second degree assault to be labeled as a sex offender, when the second degree assault is predicated on a finding of sexual motivation (as is required for indecent liberties), the jury must find that element in order to convict the defendant of that crime. Without that proof, we cannot impute that finding into the jury room under the montage of “sufficient evidence” to find Goins acted with sexual motivation. Majority at 734, 737.
Nor can I agree with the majority that State v. McNeal, 145 Wn.2d 352, 37 P.3d 280 (2002), mandates us to rubber stamp a tainted jury verdict. The underpinning of McNeal and the case upon which it relied, State v. Ng, 110 Wn.2d 32, 48, 750 P.2d 632 (1988), was “ ‘jury lenity.’ ” McNeal, 145 Wn.2d at 358 (quoting Ng, 110 Wn.2d at 48). The majority’s holding rests on our restraint from “second-guessing the jury where lenity provides a plausible explanation for the inconsistency.” Majority at 735.
However both McNeal and Ng involved inconsistent verdicts with respect to multiple charges. McNeal, 145 Wn.2d at 356, 359; Ng, 110 Wn.2d at 35, 45, 47-48. Jury lenity is undeniably a power of “utmost importance,” McNeal, 145 Wn.2d at 366 (Sanders, J., dissenting), and is applicable where a defendant faces multiple opportunities for punishment. Indeed the majority recognizes the authority for its conclusion stands for the rule that “jury convictions on separate counts should not be disturbed, despite inconsistencies, so long as there is sufficient evidence to support the conviction.” Majority at 734 (emphasis added) (citing United States v. Powell, 469 U.S. 57, 66-67, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984); Dunn v. United States, 284 *746U.S. 390, 394, 52 S. Ct. 189, 76 L. Ed. 356 (1932); McNeal, 145 Wn.2d at 359; Ng, 110 Wn.2d at 48). Yet where a defendant is charged with but a single crime, leniency becomes black and white: either the jury is lenient and acquits the defendant or the jury is not lenient and convicts the defendant.5
Accordingly, Goins’ second degree assault conviction must be reversed. It is true under the facts of this case that Goins received a lesser included offense instruction, which allowed the jury to convict him of fourth degree assault if it could not unanimously convict him of second degree assault. CP at 23. Instruction 14 defined fourth degree assault as “assault not amounting to assault in the second degree.” Id. at 24. Instruction 15, the “to convict” instruction on fourth degree assault, supplied the same elements as the “to convict” instruction for second degree assault except the element of “intent to commit Indecent Liberties.” Compare id. at 16 (second degree assault “to convict” instruction) with id. at 25 (fourth degree assault “to convict” instruction). But the jury convicted Goins of second degree assault and did not answer the general verdict form for fourth degree assault.
Thus, Goins could still face a retrial on the fourth degree assault charge on remand.6 But should he have to face a *747retrial on the second degree assault charge? I believe former RCW 4.44.440 unequivocally answers that question.
III. Special Verdicts Control General Verdicts
Former RCW 4.44.440 clearly dictates that a special finding controls over a general verdict. It states, “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.” Former RCW 4.44.440 (emphasis added).
The majority refuses to follow former RCW 4.44.440, claiming it is civil in nature, inapplicable to criminal proceedings, see majority at 737-38, even though the text of that statute allows no such distinction. The majority asserts State v. Robinson, 84 Wn.2d 42, 523 P.2d 1192 (1974), and McNeal, 145 Wn.2d 352, support its conclusion. But they don’t.
In Robinson the defendant was a police officer convicted of bribery. Robinson, 84 Wn.2d at 42-43. When the jury returned the general verdict to the judge, it attached a note which indicated the jurors could “only find him guilty of the crime of accepting drinks while in uniform.” Id. at 43 n.l (emphasis added). The court declined to apply former RCW 4.44.440, not because the statute applied only to civil matters, but rather because the note submitted by the jury was not a “special verdict” or “special findingt ] of fact” as specified in the statute, and because juries are not permitted to make special findings on their own initiative. Id. at 45.
Like Robinson, the court in McNeal declined to apply former RCW 4.44.440 because the facts in that case did not support the statute’s application:
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, *748that 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.”
McNeal, 145 Wn.2d at 358 n.2. Here we have one general verdict, precisely the fact McNeal found necessary to invoke former RCW 4.44.440. Even though I viewed the case as controlled by former RCW 4.44.440, see id. at 369-70 (Sanders, J., dissenting), the majority’s rejection of my conclusion on grounds different from the statute’s applicability to criminal proceedings does not mean the issue is resolved, and we recently held such an approach was erroneous. See State v. Smith, 150 Wn.2d 135, 147-48, 75 P.3d 934 (2003) (noting it is error to view an argument in a dissenting opinion as rejected by a majority of this court because “the majority may base its holding on a completely separate analysis and may not even consider those arguments addressed by the dissent”), cert. denied,_U.S._124 S. Ct. 1616 (2004). In Smith the court held State v. Manussier,
129 Wn.2d 652, 921 P.2d 473 (1996), was not controlling merely because the arguments raised by the dissent, see id. at 685-97 (Madsen, J., dissenting), were not adopted by a majority of the court. Smith, 150 Wn.2d at 147-48. Viewing McNeal as controlling in this case to the effect that former RCW 4.44.440 does not apply to criminal cases is just as erroneous as it was for the Court of Appeals in Smith to view Manussier as controlling authority there. See Smith, 150 Wn.2d at 147-48; see also Natasha Shekdar Black, Notes and Comments, A is not A: Washington’s Unconstitutional Law of Single-Consent, Single-Defendant Inconsistent Verdicts in State v. Goins, 78 Wash. L. Rev. 557, 577 (2003) (“Until Goins, Washington courts had not determined whether section 4.44.440 applied to criminal proceedings.”).
Quite the opposite of holding former RCW 4.44.440 completely inapplicable to criminal cases, this court has repeatedly held that the civil rules are applicable in criminal cases if the criminal rules are silent on the issue at hand. State v. Cronin, 130 Wn.2d 392, 397, 923 P.2d 694 *749(1996) (CR 5); State v. Clark, 129 Wn.2d 805, 815, 920 P.2d 187 (1996); State v. Hackett, 122 Wn.2d 165, 170, 857 P.2d 1026 (1993); State v. Gonzalez, 110 Wn.2d 738, 744, 757 P.2d 925 (1988).
The criminal rules do not address the remedy where a special verdict is irreconcilable with a general verdict. The only criminal rule that is arguably relevant is CrR 6.16(b), which states, “When a special finding is inconsistent with another special finding or with the general verdict, the court may order the jury to retire for further consideration.” (Emphasis added.) Notably absent from CrR 6.16(b) is the mandatory language which exists in former RCW 4.44.440. Compare CrR 6.16(b) (use of the word “may”) and former RCW 4.44.440 (use of the word “shall”). Fundamental to statutory construction is the doctrine that “shall” is construed as mandatory language and “may” is construed as permissive language. Accord Rios v. Dep’t of Labor & Indus., 145 Wn.2d 483, 501 n.11, 39 P.3d 961 (2002) (construing “shall” as “mandatory language”); Petrarca v. Halligan, 83 Wn.2d 773, 776, 522 P.2d 827 (1974) (construing “may” as “permissive language”). And we use statutory construction principles to construe criminal court rules. City of Seattle v. Guay, 150 Wn.2d 288, 300, 76 P.3d 231 (2003).
Thus, contrary to former RCW 4.44.440 which mandates the court to give judgment in accordance with the special verdict, CrR 6.16(b) merely vests the judge with discretion to order the jury to continue deliberating. CrR 6.16(b) does not address the appropriate remedy for inconsistent verdicts once rendered. That situation is addressed only by former RCW 4.44.440.
Accordingly, the jury’s special finding that Goins did not act with sexual motivation controls the general verdict of guilty (which is required for indecent liberties), and his second degree assault conviction must be reversed.7
I therefore dissent.
The 2003 amendment to former RCW 4.44.440 substantially rewrote the section. However Goins’ trial was held prior to the legislative enactment and we must evaluate his proceedings under former RCW 4.44.440.
While “sexual contact” occurs when contact with another’s sexual or intimate parts occurs “for the purpose of gratifying sexual desire of either party or a third party,” RCW 9A.44.010(2) (emphasis added), the only person whose sexual gratification was at issue was Goins. Nothing in the record indicates Goins acted to gratify Angela Z.’s sexual desire, much less the only third party present— witness Steve Haworth. The record demonstrates Haworth entered the room only after the alleged assault took place and after Haworth had spent much of the time being sick from intoxication.
See In re Welfare of Adams, 24 Wn. App. 517, 519, 601 P.2d 995 (1979) (noting a woman’s breasts can be deemed “ ‘sexual or other intimate parts’ ” as a matter of law).
I pause to recognize that one commentator recently criticized the result reached by the Court of Appeals below that the majority now adopts with open arms. See Natasha Shekdar Black, Notes and Comments, A is not A: Washington’s Unconstitutional Law of Single-Count, Single-Defendant Inconsistent Verdicts in State v. Goins, 78 Wash. L. Rev. 557, 582 (2003) (“[C]oncems of jury lenity do not justify extending the Ng and McNeal holdings to the single-count, single-defendant context.”).
This situation differs from that where a jury convicts a defendant of a lesser offense which is later reversed, in which case the defendant’s right against double jeopardy would prevent the State from charging the defendant with the more serious offense of which the jury acquitted him or her. See, eg., Green v. United States, 355 U.S. 184, 189-90, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957) (defendant unconstitutionally faced double jeopardy for first degree murder charge after successfully appealing his second degree murder conviction when jury at original trial had alternative of convicting him of first degree murder). Here the jury never returned a verdict on the fourth degree assault charge, so Goins’ jeopardy with respect to the fourth degree assault charge never ended. Accord Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 308-09, 104 S. Ct. 1805, 80 L. Ed. 2d 311 (1984).
Chief Justice Alexander correctly recognizes State v. Hurley, 4 Wn. App. 781, 483 P.2d 1274, review denied, 79 Wn.2d 1005 (1971), is indistinguishable from the *750present case. There the to convict instruction erroneously added an element that defendant Hurley was required to be “ ‘armed with a deadly weapon’ ” at the time of the charged offense, robbery. Id. at 782. The prosecution had submitted the instruction, so it became the law of the case. Id. at 782-83. However a special interrogatory to determine the appropriate sentence was also submitted to the jury, asking whether Hurley was armed with a deadly weapon at the time of the offense. Id. The jury answered the interrogatory in the negative. Id. at 783. The court reversed the convictions as the verdicts were inconsistent. Id. The Hurley court refused to grant Hurley an acquittal by way of judgment notwithstanding the verdict, concluding at most the verdicts canceled out each other and resulted in a mistrial. Id. at 783-84. For the previously mentioned reasons I nonetheless maintain former RCW 4.44.440 controls the disposition of this case, as evidenced by our cases subsequent to Hurley, which considered the applicability of the statute to criminal cases.