                                                                                                           FILED
                                                                                                 COURT OF APPEALS
                                                                                                         DIVISION II
                                                                                               2015 FEB 18
                                                                                                           AM 9: 20
                                                                                                     E    F
                                                                                                                   GT0N
                                                                                                BY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II


    STATE OF WASHINGTON,                                                           No. 44923 -4 -II


                                        Respondent,


            v.



    STEVEN DANIEL KRAVETZ,                                                 UNPUBLISHED OPINION


                                        Appellant.




           LEE, J. —       Following a jury trial, Steven Daniel Kravetz was convicted of first degree

assault, second degree assault, and disarming a law enforcement officer. Kravetz appeals, arguing

that the trial court denied him his right to testify. Kravetz, in a statement of additional grounds

 SAG), 1 also challenges the validity of the jury' s verdicts, arguing that he was denied his right to

a unanimous verdict and            that the   jury   rendered   inconsistent   verdicts.    Kravetz' s arguments are


without merit. We affirm.


                                                         FACTS


           Following an assault at the Grays Harbor courthouse,2 the State charged Kravetz with the

following        crimes:    Count I— second degree        attempted murder, count          II —first degree assault of




1 RAP 10. 10.

2
    The   venue   for this trial   was changed   from Grays Harbor       County    to Lewis    County.
No. 44923 -4 -II



Deputy Polly   Davin,    count   III —disarming        a   law   enforcement officer, and count   IV —first degree


assault of Judge David Edwards.


        Kravetz'    s case proceeded   to   a   jury   trial   on   March 26, 2013. On April 1, after both parties


presented their cases, the trial court dismissed the jurors for the day.

        The next morning, defense counsel informed the court that Kravetz wished to address the

court. The following exchange took place:

                   THE COURT: Mr. Kravetz, as I understand it, you wish to address the Court
        directly yourself. Again, as I told you at the outset, you have the right to remain
        silent. You are not required to say anything. As I told you at the outset [ you] had
        the right to take the stand and testify, and it was my understanding from yesterday
        from the action taken by [ defense counsel] in calling his expert witness, then,
        subsequently calling your mother, then, resting that the decision was made that you
        were not going to testify. If you want to be heard on that, this is your opportunity.
        Bear in mind, you are not required to say anything, and anything you do say is being
        taken down by the court reporter and may end up being used against you.

                   THE DEFENDANT: Last time I had spoken with [ defense counsel] in the
        jail, he told me that regarding the presentation of the defense yesterday that he
        would call his witnesses and then the prosecution would call the rebuttal witnesses,
        but he never told me that the defense was required to rest, before the rebuttal
        witnesses, and I thought that I might have a chance to testify after the rebuttal
        witnesses, because he never informed me of that, so that' s just — basically, that' s
        maybe sort of affected my decision possibly to not testify, and so I'm just raising
        that he should have been more informative about me and that' s all.


                   THE COURT: Well, are you telling me that you wanted to take the stand
        and testify in your own defense and that somehow you misunderstood [ defense
        counsel' s] advice and as a result of that chose not to or are you just telling me you
        wanted an opportunity to rebut the State' s rebuttal witnesses?
                   THE DEFENDANT: No, I don' t want to do that, but Ijust wanted to raise
        the fact that he did not inform me properly, so that I didn' t have a chance to think
        about this as much as I could have.




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No. 44923 -4 -II



                 THE COURT: Mr. Kravetz, is there anything else you would like to say on
                    Again, you are not required to say anything. Anything you say is being
          this topic?

          taken down by the reporter and may be used against you.

                   THE DEFENDANT: No, that' s all right.


                   THE COURT: From your statements, it is my understanding that you are
          not telling me that you, the defendant, in fact did want to testify on your own behalf
          merely that you apparently did not understand or so you say today the procedure
          that the Court follows with respect to a trial ... .




                   It' s on the record. You have made your record for it, but I think that what
          happened here    was   trial strategy,   and   I   understand         the strategy.   I think all the

          attorneys in the courtroom understand the strategy, and I' m going to leave it at that,
          unless you have something else that you want to say on the topic.

                   THE DEFENDANT: No.


Verbatim Transcript Proceedings ( VTP) ( April 2, 2013)                    at    566 -68, 571 -73 (   emphasis    added).




After the above exchange, the parties proceeded to closing arguments.

          The trial court instructed the jury on the lesser included offense of second degree assault

as to counts II and IV. On count II, the jury received a verdict form A for first degree assault and

a verdict   form B for    second   degree   assault.     The trial court instructed the jury to not complete

verdict   form B if they found Kravetz guilty          of   first degree   assault on verdict      form A. On count


IV, the jury received a verdict form A for first degree assault and a verdict form B for second

degree    assault.   The trial court again instructed the jury to not complete verdict form B if they

found Kravetz guilty of first degree assault on verdict form A.




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No. 44923 -4 -II




           The jury returned the following verdicts:

           Count I:       Second degree       attempted murder —not              guilty;
           Count II:      First degree          Deputy Polly Davin, Form A—guilty;
                                           assault of

           Count II:      Second degree assault of Deputy Davin, Form B —not guilty;
           Count III:     Disarming a law enforcement officer —guilty;
           Count IV:      First degree     assault of   Judge David Edwards —not guilty
           Count IV:      Second degree       assault of   Judge Edwards —guilty


Clerk' s Papers'( CP) at 304 -09. In regards to the jury completing verdict form B for count II, the

trial   court   said   that the   response was "      a redundant verdict" because the jury should not have

completed verdict form B ( count II-assault in the second degree) when it found Kravetz guilty of

first degree assault. VTP (April 3, 2013) at 679, 684.


           The trial court polled the jury at Kravetz' s request. Each juror, except for juror 12, reported

that the   verdicts reflected     their   verdicts and   the   verdicts of the      jury.   Juror 12   reported   that "[   tjhey

were not     my   verdicts.   They   were     the   verdicts of   the   jury."    VTP ( April 3, 2013)     at   683. Kravetz


did not object to the trial court' s polling method.

           The trial court determined that the verdicts were not unanimous as required, and directed


the jury to continue deliberations. On the record, the trial court determined (after discussion from

the parties) that the first set of verdicts were invalid because they were not unanimous, that the

jury did not follow the trial court' s instructions regarding filling out the verdict forms, and that the

trial   court would give      the   jury   a clean set of verdict        forms.      Kravetz did not object to the trial


court' s ruling to send the jury to continue deliberations.

           After continued deliberations, the jury returned the following verdicts:

           Count I:       Second degree      attempted murder —not           guilty
           Count II:      First degree          Deputy Polly Davin, Form A—guilty
                                           assault of

           Count II:      Second degree assault of Deputy Davin, Form B— "redundant"
           Count III:     Disarming a law enforcement officer —guilty



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No. 44923 -4 -II



           Count IV: First degree    assault of   Judge David Edwards —not guilty
           Count IV: Second degree     assault    of Judge Edwards —guilty



CP   at   314 -19.   The trial court again polled the jury at Kravetz' s request, which revealed that the

verdicts were unanimous.         Kravetz did      not object   to the trial   court' s   polling   method.   Kravetz


appeals.



                                                   ANALYSIS


A.         THE CONSTITUTIONAL RIGHT TO TESTIFY


           Kravetz argues that the trial court denied him his constitutional right to testify when it did

not allow him to reopen his case -in -chief after he told the trial court that he did not want to testify,

but that he wanted to share his thought that his counsel should have been more informative.3 Br

of Appellant at 14. His argument fails.


           The defendant has a fundamental right to testify. State v. Robinson, 138 Wn.2d 753, 758,

982 P. 2d 590 ( 1999). We review a trial court' s decision whether to reopen a case -in -chief to allow


a defendant to testify for manifest abuse of discretion. State v. Barnett, 104 Wn. App. 191, 199,

16 P. 3d 74 ( 2001).       A trial court abuses its discretion when its decision is based on untenable


grounds or untenable reasons. Barnett, 104 Wn. App. at 199.

           Here, Kravetz did not ask to testify or to reopen his case -in- chief. A.defendant is not denied

his right to testify when he did not assert that right and when he declined to testify when given the

opportunity.         See Barnett, 104 Wn. App. at 198 -99 ( holding the trial court did not abuse its

discretion to not reopen the case -in -chief to allow the defendant to testify where the defendant

stated that he changed his mind about testifying the day after the defense rested its case).



3 Kravetz does not assert that he asked to or wanted to testify prior to April 2, 2013.

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No. 44923 -4 -II



Moreover, the, trial court cannot abuse its discretion by refusing to reopen a defendant' s case -in-

chief when the defendant did not ask to reopen his case -in- chief. Accordingly, Kravetz' s claim

that the trial court denied him his right to testify by not reopening his case -in -chief lacks merit.

B.       SAG —JuRY VERDICTS


         1.        Unanimous Jury Verdicts and Jury Polling

         Kravetz argues that the trial court denied him his right to a unanimous jury verdict by

improperly polling the jury and improperly directing the jury to continue deliberations. SAG at 1,

9. We disagree.

         First, Kravetz did           not object    to the trial     court' s poll.     Therefore, he is precluded from


assigning error to the form of the jury poll. RAP 2. 5( a); State v. Strine, 176 Wn.2d 742, 749, 293

P. 3d 1177 ( 2013) (     holding that the court would not review the defendant' s assignment of error

related to the jury poll when the defendant did not object at trial).

         Second, Kravetz argues that the trial court improperly directed the jury to continue

deliberations because the jury returned an acquittal on count II for second degree assault of Deputy

Davin. Kravetz' s assertion that the jury acquitted him of count II is unequivocally incorrect. Here,

the jury poll showed that the first set of verdicts were not unanimous. A nonunanimous verdict is

not an acquittal.       In re Pers. Restraint of Candelario, 129 Wn. App. 1, 7, 118 P.3d 349 ( 2005).

                  the   jury          did         demonstrate that Kravetz        was acquitted —it     demonstrated that
Accordingly,                   poll         not




the   jury had   not reached a unanimous verdict.               See State v. Noyes, 69 Wn.2d 441, 446; 418 P.2d


471 ( 1966) (    holding when a hung jury stands 11 to 1 for acquittal, defendant is not permitted to

waive a unanimous verdict and accept                 the   vote of   11 jurors   as a valid verdict   for   acquittal).   Thus,


Kravetz'      s arguments   regarding the improper polling              of the   jury   fails.
No. 44923 -4 -II



         2.     Inconsistent verdicts


         Kravetz argues that the jury rendered inconsistent verdicts based on the first set of verdict

forms. Specifically, he argues that it was inconsistent for the jury to find him guilty for first degree

assault as to count II, but not guilty of the lesser included crime of second degree assault.

         Kravetz' s argument fails because the trial court rejected the first set of verdict forms and

determined that they were not valid. The trial court may properly disregard the jury' s completion

of a special verdict form when the jury found the defendant guilty and was instructed to complete

the   form only if they found   the defendant   not   guilty. State v. Eggleston, 164 Wn.2d 61, 73, 187


P. 3d 233, cent. denied, 555 U.S. 1075 ( 2008).


         Also, the second set of verdict forms, which the trial court accepted because they were

unanimous and valid, did not find him not guilty on form B. Thus, the alleged inconsistency that

Kravetz relies on does not exist in the accepted jury verdicts.

         We affirm Kravetz' s conviction.


         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




We concur:




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