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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,
                             Respondent,                         No.  41564-0-II

       v.                                                    PUBLISHED IN PART
                                                                   OPINION
VERNON WAYNE BENNETT,
                             Appellant.

       Van Deren, J.  --  Vernon Bennett appeals his convictions for unlawful delivery of a 

controlled substance, methamphetamine, to a minor, and unlawful delivery of methamphetamine 

to Ashleigh Penfield, both with school bus route stop enhancements; furnishing liquor to a minor; 

and unlawful possession of a controlled substance, methamphetamine.  He argues that the trial 

court violated his and the public's right to an open and public trial when it held an in-chambers 

conference to discuss jury instructions and that the trial court erred when it imposed a school bus 

route stop sentence enhancement on his methamphetamine delivery to a minor conviction.1  

1 In the unpublished portion of the opinion, we discuss Bennett's claims that (1) sufficient 
evidence does not support his convictions for methamphetamine delivery to a minor and for 
unlawful methamphetamine possession; (2) the trial court abused its discretion when it admitted 
into evidence photographs of Bennett's basement; (3) his convictions for methamphetamine 
delivery and methamphetamine possession violate state and federal constitutional protections 
against double jeopardy; (4) the trial court abused its discretion by not determining whether his 
two delivery convictions constituted the same criminal conduct for purposes of calculating his 
offender score; and (5) he received ineffective assistance of counsel because defense counsel did 
not argue at sentencing that the delivery convictions were the same criminal conduct. 

No.  41564-0-II

Finding no error, we affirm.

                                            FACTS

       According to Ashleigh2 Penfield, in November 2008, she and Chelsea Hensley3, who was 

17 at the time, went to Bennett's residence to smoke methamphetamine.  Following an 

investigation and interviews with the persons involved, the State charged Bennett with unlawful 

delivery of a controlled substance, methamphetamine, to a minor, Hensley (count I), and unlawful 

delivery of methamphetamine to Penfield (count II), both with school bus route stop 

enhancements; furnishing liquor to a minor, Hensley, between November 21 and November 22 

(count III); and unlawful possession of a controlled substance, methamphetamine, on November 

23 (count IV).  

       At the close of the evidence at trial, the trial court judge and counsel met in chambers4 to 

"finalize" the jury instructions.  2 Report of Proceedings (RP) at 145.  After the conference, the 

trial court stated that it and the parties "had an opportunityto go over the instructions" and that 

the instructions had "been copied and collated."  2 RP at 145.  Bennett stated on the record in 

open court that he had no objections to the instructions. 

2 The information filed in this case identifies Penfield's first name as "Ashleigh." Clerk's Papers 
(CP) at 2.  The trial transcript refers to her as "Ashley."  1 Report of Proceedings (RP) at 60.  We 
refer to her as "Ashleigh."

3 Hensley's driver's license, admitted as an exhibit at trial, identifies her last name as "Hensley."  
Ex. 2.  The information identified Hensley, a minor at the time, as "C.R.H." CP at 1.  The trial 
transcript identifies her last name as "Hinsley."  See, e.g., 1 RP at 62.  We refer to her as 
"Hensley."    

4 The record indicates that Bennett was not present during this conference.  The trial court 
referred to meeting only with the attorneys.  After the trial recessed and the jury left the 
courtroom, the trial court judge said, "I want the attorneys to meet me in chambers.  I want you 
to go that way."  2 RP at 145.     

                                               2 

No.  41564-0-II

       The jury convicted Bennett as charged.  He appeals.  

                                          ANALYSIS

                                       Public Trial Right

       Bennett argues that the in-chambers discussion between counsel and the trial court about 

jury instructions violated his and the public's right to open and public trials under the state and 

federal constitutions.  On the sparse record on appeal in this case, we disagree.  

       Whether a violation of the public trial right exists is a question of law we review de novo.  

State v. Momah, 167 Wn.2d 140, 147, 217 P.3d 321 (2009), cert denied, 131 S. Ct. 160 (2010).  

The state and federal constitutions guarantee both criminal defendants and the public the right to 

open and public trials.  U.S Const. amends. I, VI; Wash. Const. art. I, §§ 10, 22.  

       Washington appellate opinions have recognized a link between a criminal defendant's right 

to be present during critical stages of trial and the defendant's right to a public trial; this link, 

however, originates, without citation to authority, from State v. Rivera, 108 Wn. App. 645, 653, 

32 P.3d 292 (2001).  As a result, Washington courts have generally held that the defendant's 

public trial right encompasses "'adversary proceedings'" during trial, such as evidentiary phases, 

suppression hearings, voir dire, and jury selection.  State v. Sadler, 147 Wn. App. 97, 114, 193 

P.3d 1108 (2008)5 (emphasis omitted) (internal quotation marks omitted) (quoting Rivera, 108 

5 On November 13, 2008, the State filed a petition for review of our decision in Sadler's case with 
our Supreme Court.  On February 3, 2009, our Supreme Court first stayed consideration of the 
petition in Sadler pending its final decisions in Momah and State v. Strode, 167 Wn.2d 222, 217 
P.3d 310 (2009).  Following issuance of those opinions, on July 9, 2010, our Supreme Court 
again stayed the State's petition for review  in Sadler pending a final decision in State v. Wise, 
148 Wn. App. 425, 200 P.3d 266 (2009), review granted, 170 Wn.2d 1009 (2010).  On May 3, 
2011, the court also heard oral argument on the public trial right in State v. Paumier, 155 Wn. 
App. 673, 230 P.3d 212, review granted, 169 Wn.2d 1017 (2010) and State v. Tarhan, 159 Wn. 
App. 819, 246 P.3d 580, review granted, 172 Wn.2d 1013 (2011).  On March 1, 2011, our 
Supreme Court stayed consideration of a petition for review in State v. Koss, 158 Wn. App. 8, 
                                               3 

No.  41564-0-II

Wn. App. at 652).  The corollary of this is usually stated as a rule that this right does not include 

"hearing[s] on purely ministerial or legal issues that do not require the resolution of disputed 

facts."  Sadler, 147 Wn. App. at 114. But, even assuming a link between the defendant's right to 

be present during critical stages of trial and the public trial right exists, we caution against an 

overbroad reading of case law suggesting that the two rights are coextensive.  

       As our Supreme Court has recently observed, under the federal constitution, a criminal 

"defendant has a right to be present at a proceeding 'whenever his presence has a relation, 

reasonably substantial, to the fulness of his opportunity to defend against the charge'" but "does 

not have a right to be present when his or her 'presence would be useless, or the benefit but a 

shadow.'"  State v. Irby, 170 Wn.2d 874, 881, 246 P.3d 796 (2011) (quoting Snyder v. 

Massachusetts, 291 U.S. 97, 105-07, 54 S. Ct. 330, 78 L. Ed. 674 (1934), overruled in part on 

other grounds sub nom. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)).  

For example, under the federal constitution a defendant has a right to be present during jury 

selection because "'it will be in his power, if present, to give advice or suggestion or even to 

supersede his lawyers altogether.'"  Irby, 170 Wn.2d at 883 (quoting Snyder, 291 U.S. at 106).  

       In contrast, in 2005 our Supreme Court stated the defendant's public trial right in broader 

terms in that it "serves to ensure a fair trial, to remind the officers of the court of the importance 

of their functions, to encourage witnesses to come forward, and to discourage perjury."  State v. 

241 P.3d 415 (2010) pending its decision in State v. Sublett, 156 Wn. App. 160, 231 P.3d 231, 
review granted, 170 Wn.2d 1016 (2010).  On January 4, 2012, our Supreme Court stayed 
consideration of Darrel Jackson's petition for review involving a public trial right issue in State v. 
Smith, 162 Wn. App. 833, 262 P.3d 72 (2011) -- a case we consolidated on appeal -- pending the 
court's decision in Tarhan.  The law regarding a defendant's and the public's right to public trial 
proceedings is under scrutiny and continues to evolve as our Supreme Court addresses issues 
surrounding trial court closures.  

                                               4 

No.  41564-0-II

Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005); see also State v. Leyerle, 158 Wn. App. 

474, 479, 242 P.3d 921 (2010) (stating that the public trial right "ensure[s] a fair trial, foster[s] 

public understanding and trust in the judicial system, and give[s] judges the check of public 

scrutiny") (citing Brightman, 155 Wn.2d at 514; Dreiling v. Jain, 151 Wn.2d 900, 903-04, 93 

P.3d 861 (2004)).  

       Recently, our Supreme Court also observed that the public's right encompasses 

circumstances where the public's presence "'plays a significant positive role in the functioning of 

the particular process,'" such as a criminal "trial or a hearing on a motion or other similar 

proceeding."  Tacoma News, Inc. v. Cayce, 172 Wn.2d 58, 72-73, 256 P.3d 1179 (2011) (quoting 

Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986).  

Further, as the United States Supreme Court has observed: 

              The open trial thus plays as important a role in the administration of justice 
       today as it did for centuries before our separation from England.  The value of 
       openness lies in the fact that people not actually attending trials can have 
       confidence that standards of fairness are being observed; the sure knowledge 
       that anyone is free to attend gives assurance that established procedures are being 
       followed and that deviations will become known.  Openness thus enhances both 
       the basic fairness of the criminal trial and the appearance of fairness so essential to 
       public confidence in the system.

Press-Enter. Co. v. Superior Court, 464 U.S. 501, 508, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984).

       Although the defendant's right to be present and the defendant's and the public's right to 

an open and public trial serve the same normative value -- i.e., ensuring a fair trial -- they differ in 

function.  The defendant's right to be present encompasses situations in which he may actively 

contribute to his own defense, such as offering his input to his counsel during jury selection and 

the exercise of preemptory challenges, as well as critical stages of trial where his presence "'has a 

                                               5 

No.  41564-0-II

relation, reasonably substantial, to the fullness of his opportunity to defend against the charge,'"

such as potentially convincing jurors to change their votes upon polling at the return of their 

verdict.  Irby, 170 Wn.2d at 881 (quoting Snyder, 291 U.S. at 105-06); see, e.g., Irby, 170 Wn.2d 

at 883; State v. Rice, 110 Wn.2d 577, 616, 757 P.2d 889 (1988); see also Rice v. Wood, 77 F.3d 

1138, 1143 n.5 (9th Cir. 1996) (citing cases discussing the potential effect of the defendant's 

presence on the return of the verdict and jury polling).  In contrast, the defendant's and the 

public's right to open and public trials also encompasses circumstances in which the public's mere 

presence passively contributes to the fairness of the proceedings, such as deterring deviations 

from established procedures, reminding the officers of the court of the importance of their 

functions, and subjecting judges to the check of public scrutiny.  See, e.g., Brightman, 155 Wn.2d 

at 514; Leyerle, 158 Wn. App. at 479.  

       Thus, even in proceedings involving purely legal matters, the public's presence may ensure 

the fairness of such proceedings, although the same cannot be said for ministerial or administrative 

matters that do not impact the defendant's rights.6  But see In re Det. of Ticeson, 159 Wn. App. 

6 If the defendant's right to be present and the public trial right are coextensive, our Supreme 
Court has suggested that a defendant's right under the Washington constitution to "'appear and 
defend'" may be broader than a defendant's federal constitutional right to be present, Irby, 170 
Wn.2d at 885 n.6 (quoting Wash. Const. art. I, § 22); by implication, that broader right would 
extend to the public.  .  Washington case law does not condition a criminal defendant's right to 
"'appear and defend' at a particular 'stage of trial' on what a defendant might do or gain by 
attending, or the extent to which the defendant's presence may have aided his defense."  Irby, 170 
Wn.2d at 885 n.6 (quoting State v. Shutzler, 82 Wash. 365, 367, 144 P. 284 (1914)).  Rather, 
Washington law conditions the right "on the chance that a defendant's 'substantial rights may be 
affected' at that stage of trial."  Irby, 170 Wn.2d at 885 n.6 (quoting Shutzler, 82 Wash. at 367). 
Accordingly, even if the defendant's right to be present and the public trial right are coextensive 
under Washington law, both may be broader than their corresponding federal constitutional rights 
and, arguably, encompass circumstances where the defendant's and the public's mere presence 
passively contribute to the proceedings or, indeed, serve no function in aiding the defendant's 
defense.  See Irby, 170 Wn.2d at 885 n.6.  

                                               6 

No.  41564-0-II

374, 383-86, 246 P.3d 550 (2011) (holding that Washington law historically supports in-chambers 

conferences on purely legal issues).      

       Sadler is broadly cited for the proposition that in-chambers conferences to discuss purely 

legal or ministerial matters do not implicate the right to open and public trials, but Sadler rejected 

the State's argument that a hearing on a Batson7 challenge need not be held in public.  147 Wn. 

App. at 116-18.  Consistent with our Supreme Court's statements about the defendant's and the 

public's right to public trials, we held that "[b]ecause a Batson hearing involves factual and 

credibility determinations and is relevant to the fairness and integrity of the judicial process as a 

whole . . . the right to public trial exists in this context."  Sadler, 147 Wn. App. at 118 (emphasis 

added).  

       In State v. Sublett, 156 Wn. App. 160, 181-82, 231 P.3d 231, review granted, 170 Wn.2d 

1016 (2010), we addressed whether an in-chambers conference to respond to a jury question that 

arose during deliberations about a particular jury instruction violated Sublett's public trial right.  

We observed that, "in general, in-chambers conferences between the court and counsel on legal 

matters are not critical stages of the proceedings except when the issues involve disputed facts."  

156 Wn. App. at 183 (citing In re Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835, 

870 P.2d 964 (1994).  We agree with our Supreme Court, Sadler, and Sublett, and hold that there 

is no per se rule8 that the issues raised during in-chambers conferences are not subject to public 

7 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

8 Division Three of this court addressed whether an in-chambers conference on jury instructions 
implicates a defendant's public trial right.  Koss, 158 Wn. App. at 16-17.  It held that the in-
chambers conference addressed purely legal issues because it involved finalizing the jury 
instructions' language and did not involve disputed facts.  Koss, 158 Wn. App. at 17.  
Furthermore, it observed that the defendant's failure to object to the instructions on the record 
following the chambers conference undermined his claim on appeal.  See Koss, 158 Wn. App. at 
                                               7 

No.  41564-0-II

scrutiny and the defendant's right to be present.  

       Here, we must address an in-chambers conference about jury instructions.  The trial court 

recited on the record what occurred during the in-chambers conference:  the trial court and the 

parties "had an opportunity to go over the instructions" and the instructions had "been copied and 

collated."  2 RP at 145.  We need not resolve whether Bennett or the public had a right to observe 

a purely legal discussion relevant to Bennett's trial because our record fails to reveal that any 

issues, factual or legal, arose or were discussed. 

       We recognize that some chambers conferences on jury instructions may be ministerial or 

administrative -- e.g., numbering the instructions, checking the order of the instructions, verifying 

their typographical accuracy, etc. -- but there are occasions when disputed facts and evidence may 

be discussed in an effort to influence the trial court's choice of jury instructions, and other 

chambers discussions may take such discussions beyond purely ministerial or administrative 

matters.  In the context of jury instructions, a trial court may be asked to rule on the effect of 

disputed testimony for the inclusion or exclusion of requested jury instructions -- e.g., accomplice 

liability instructions, self-defense instructions, lesser included or lesser degree crimes, or 

diminished capacity instructions -- or may be asked to interpret the law as applicable to the facts 

and evidence in the case.

       In order to obtain effective review of an in-chambers conference, the parties should make 

an adequate record in the trial court about what transpired during any conference so we can 

determine whether the conference dealt with purely ministerial issues or involved discussion or 

resolution of disputed facts or legal issues.  The record before us shows only that the trial court 

17.  

                                               8 

No.  41564-0-II

and the parties reviewed, copied, and collated the jury instructions, all administrative or ministerial 

functions.  Furthermore, Bennett did not subsequently discuss nor object to the instructions in 

open court.9 Thus, the record does not reflect that the in-chambers conference involved anything 

beyond purely ministerial matters that did not give rise to either Bennett's or the public's right to 

open proceedings.  Accordingly, on this record, we hold that the trial court did not violate 

Bennett's or the public's right to an open and public trial.  

                        School Bus Route Stop Sentencing Enhancement

       Bennett additionally argues that the trial court erred by exceeding its statutory authority in 

imposing a school bus route stop sentence enhancement under former RCW 9.94A.533(6) (2008) 

on his conviction for methamphetamine delivery to a minor because such enhancements do not 

apply to convictions for methamphetamine delivery to a minor.  We disagree.

       Defendants may challenge an illegal or erroneous sentence for the first time on appeal.  

State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008).  We review questions of statutory 

interpretation de novo.  State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005).  When 

interpreting a statute, we seek to ascertain the legislature's intent.  Jacobs, 154 Wn.2d at 600.  

9 Neither party designated the proposed jury instructions as part of the record on appeal so we 
cannot review whether there was any discussion about the choice of particular jury instructions.  
Moreover, the only record at trial about what occurred during the in-chambers conference was 
the trial court's recitation stated above.  The better practice is for the parties and the trial court to
hold these conferences in open court or to state on the record the nature of the in-chambers 
discussions, the specific issues discussed, and the results of in-chambers or sidebar conferences 
held at any point during a trial.  Ticeson, 159 Wn. App. at 384 n.27.  The burden on appeal is on 
Bennett to show a violation of either his or the public's right to open and public trials, e.g., that 
the public trial right applied to the particular issues discussed during an in-chambers conference.  
See Smith, 162 Wn. App. at 846 (holding that appellant failed to meet his burden of showing that 
the trial court violated his right to a public trial by sealing jury questionnaires used in open court 
during voir dire).  Furthermore, appellants bear the burden of perfecting the record for appellate 
review, including the proposed jury instructions.  See RAP 9.2(b).  Thus, a complete absence of a 
record relating to the challenged action cannot compel appellate review.
                                               9 

No.  41564-0-II

Where a statute's meaning is plain on its face, we must give effect to that meaning as expressing 

the legislature's intent.  Jacobs, 154 Wn.2d at 600.  We determine the statute's plain meaning 

from the ordinary meaning of its language, as well as from the statute's general context, related 

provisions, and the statutory scheme as a whole.  Jacobs, 154 Wn.2d at 600.  We interpret 

statutes to give effect to all language in the statute and to render no portion meaningless or 

superfluous.  State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003).  We interpret statutes to 

harmonize them whenever possible.  State v. Powell, 167 Wn.2d 672, 695-96, 223 P.3d 493 

(2009).   

       RCW 69.50.401 provides:

       (1) Except as authorized by this chapter, it is unlawful for any person to 
       manufacture, deliver, or possess with intent to manufacture or deliver, a controlled 
       substance.
              (2) Any person who violates this section with respect to:
              . . . . 
              (b) Amphetamine, including its salts, isomers, and salts of isomers, or 
       methamphetamine . . . is guilty of a class B felony.

RCW 69.50.406(1), the relevant delivery to a minor statute, provides:  

       Any person eighteen years of age or over who violates RCW 69.50.401 by 
       distributing a controlled substance listed in Schedules I or II which is a narcotic 
       drug or methamphetamine . . . to a person under eighteen years of age is guilty of a 
       class A felony punishable by the fine authorized by RCW 69.50.401(2) (a) or (b), 
       by a term of imprisonment of up to twice that authorized by RCW69.50.401(2) (a)
       or (b), or by both.

(Emphasis added.)  Former RCW 9.94A.533(6) provided:  

       An additional twenty-four months shall be added to the standard sentence range 
       for any ranked offense involving a violation of chapter 69.50 RCW if the offense 
       was also a violation of RCW 69.50.435 or [former]  9.94A.605 [(2003)]. All 
       enhancements under this subsection shall run consecutively to all other sentencing 
       provisions, for all offenses sentenced under this chapter.

(Emphasis added.)  Finally, RCW 69.50.435(1) provides:

                                               10 

No.  41564-0-II

       Any person who violates RCW 69.50.401 by manufacturing, selling, delivering, or 
       possessing with the intent to manufacture, sell, or deliver a controlled substance 
       listed under RCW 69.50.401 or who violates RCW 69.50.410by selling for profit 
       any controlled substance or counterfeit substance classified in schedule I, RCW
       69.50.204, except leaves and flowering tops of marihuana to a person:
              . . . .
              (c) Within one thousand feet of a school bus route stop designated by the 
       school district;
              . . . .
       may be punished by a fine of up to twice the fine otherwise authorized by this 
       chapter, but not including twice the fine authorized by RCW 69.50.406, or by 
       imprisonment of up to twice the imprisonment otherwise authorized by this 
       chapter, but not including twice the imprisonment authorized by RCW 69.50.406, 
       or by both such fine and imprisonment. The provisions of this section shall not 
       operate to more than double the fine or imprisonment otherwise authorized by 
       this chapter for an offense.

(Emphasis added.)  

       Thus, by the statutes' plain language RCW 69.50.406(1) applies when a person "violates"

RCW 69.50.401 by delivering a controlled substance to a minor, thus elevating the offense to a 

class A felony and allowing imposition of a sentence twice that authorized by RCW 69.50.401.  

Former RCW 9.94A.533(6) applies to "violation[s]" of RCW 69.50.435, and RCW 69.50.435(1) 

applies when a person "violates" RCW 69.50.401 within 1,000 feet of a school bus route stop.  

       The legislature expressly limited RCW 69.50.435(1)'s prohibition on more than doubling 

fines or imprisonment "authorized by this chapter for an offense." (Emphasis added.)  RCW 

69.50.435(1) does not reference any prohibition on sentence enhancements under chapters other 

than chapter 69.50 RCW, such as former RCW 9.94A.533(6) that is at issue here.  

       Were we to interpret this portion of RCW 69.50.435(1) otherwise, it would prohibit 

imposition of the mandatory school bus route stop enhancement under former RCW 

9.94A.533(6), thus bringing the two statutes into conflict.  But we harmonize statutes whenever 

                                               11 

No.  41564-0-II

possible.  Powell, 167 Wn.2d at 695-96.  Accordingly, former RCW 9.94A.533(6)'s school bus 

route stop enhancement is unaffected by RCW 69.50.435(1)'s limitation on sentence doubling.

       In sum, a person violates RCW 69.50.435(1) by violating RCW 69.50.401 within 1,000 

feet of a school bus route stop.  Because Bennett violated RCW 69.50.435(1) by delivering 

methamphetamine to Hensley within 1,000 feet of a school bus route stop, former RCW 

9.94A.533(6) required imposition of a 24-month sentence enhancement.  The trial court did not 

err in doing so, and Bennett's claim fails.

       A majorityof the panel having determined that only the foregoing portion of this opinion 

will be printed in the Washington Appellate Reports and that the remainder shall be filed for 

public record pursuant to RCW 2.06.040, it is so ordered.

                                  Sufficiency of the Evidence

       Penfield testified that she was familiar with the sight and smell of methamphetamine and 

had previously smoked it through a glass pipe.  According to her, neither she nor Hensley took 

methamphetamine pipes to Bennett's residence.  At Bennett's house, he led them upstairs to his 

bedroom, where he produced a bag of methamphetamine and retrieved a glass methamphetamine 

pipe from the top dresser drawer, near his bed and computer.  Penfield observed two 

methamphetamine pipes in Bennett's dresser drawer.  After loading the pipe, Bennett, Penfield, 

and Hensley smoked from it, passing it from person to person five times.  Then they all went 

down to Bennett's basement and, in what Penfield described as a "festive" atmosphere, began 

dancing, talking, and "hav[ing] fun."  1 RP at 94.  Eventually, Bennett produced more 

methamphetamine and another pipe, which resembled one of the pipes in his dresser drawer, and 

the three again smoked methamphetamine together.  

                                               12 

No.  41564-0-II

       According to Bennett, he did not have methamphetamine or methamphetamine pipes at his 

house before Penfield and Hensley arrived.  Hensley provided the methamphetamine, and Bennett 

did not recall whose pipes they used.  He admitted smoking methamphetamine with Penfield and 

Hensley in his bedroom, but he did not recall smoking it in his basement.  

       According to Daniel Stone, he and Hensley went to Bennett's residence on the night of 

November 21, 2008, and consumed shots of tequila and rum that Bennett supplied in his 

basement.  

       On November 22, Centralia Police Department Detective Patrick Beall spoke with Stone 

and Hensley.  On November 23, law enforcement officers executed a search warrant at Bennett's 

residence.  One officer photographed the search of Bennett's bedroom and basement.  

       An officer discovered two frosted-over glass pipes in the top dresser drawer and one 

frosted-over glass pipe next to Bennett's bed; the officer, based on his training and experience, 

identified the pipes as having been used to smoke methamphetamine.  The trace residue within 

these three pipes later tested positive for methamphetamine.  The officer also discovered an 

unused glass pipe in the room and a can of butane on top of the dresser, which he identified as 

commonly being used to heat up the glass "bowl" portion of pipes while smoking 

methamphetamine.  2 RP at 59-60.  Other than the three used pipes containing trace 

methamphetamine residue, the officers recovered no drugs at Bennett's residence.  

       In the basement, an officer discovered bottles of tequila and rum.  The officers discovered 

a bottle of Jägermeister on the dining room table.  Beall twice interviewed Bennett.  During the 

first interview, Bennett admitted that on the night of November 21, he, Hensley, and Stone had 

taken shots of rum, tequila, and Jägermeister together, and that he knew Hensley was under the 

                                               13 

No.  41564-0-II

age of 21 at the time.  During the second interview, Bennett said he could not recall whether he 

had smoked methamphetamine with Hensley and Penfield on another occasion.  During the same

interview, however, he later admitted he had smoked methamphetamine with Hensley and 

Penfield in his bedroom.  

       Bennett argues that the evidence was insufficient to support his conviction for 

methamphetamine delivery to a minor because the State failed to prove that Bennett personally 

passed the methamphetamine pipe to Hensley and the jury was not instructed on accomplice 

liability. The State counters that Bennett constructively delivered the methamphetamine to 

Hensley.  We agree with the State. 

       1.     Methamphetamine Delivery to a Minor

       "A claim of insufficiency admits the truth of the State's evidence and all inferences that 

reasonably can be drawn therefrom."  State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 

(1992).  Sufficient evidence supports a conviction if, when viewed in the light most favorable to 

the State, any rational trier of fact could have found the essential elements of the charged crime 

proved beyond a reasonable doubt.  State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006).  On 

appeal, we draw all reasonable inferences from the evidence in favor of the State and interpret 

them most strongly against the defendant.  Hosier, 157 Wn.2d at 8.  In the sufficiency context, we 

consider circumstantial evidence as probative as direct evidence.  State v. Goodman, 150 Wn.2d 

774, 781, 83 P.3d 410 (2004).  We may infer specific criminal intent of the accused from conduct 

that plainly indicates such intent as a matter of logical probability.  Goodman, 150 Wn.2d at 781.  

We defer to the fact finder on issues of conflicting testimony, witness credibility, and 

persuasiveness of the evidence.  State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004), 

                                               14 

No.  41564-0-II

abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 

158 L. Ed. 2d 177 (2004).

       Jury instruction 7 provided, "Deliver or delivery means the actual or constructive transfer 

of a controlled substance from one person to another." Supplemental Clerk's Papers at 40.  RCW 

69.50.101(2)(f) provides that "'[d]eliver' or 'delivery,' means the actual or constructive transfer 

from one person to another of a substance, whether or not there is an agency relationship." We 

have previously used common dictionary meanings to interpret "'transfer'" to mean "'to cause to 

pass from one person or thing to another,' as well as 'to carry or take from one person or place to 

another.'"  State v. Martinez, 123 Wn. App. 841, 846-47, 99 P.3d 418 (2004) (internal quotation 

marks omitted) (quoting State v. Campbell, 59 Wn. App. 61, 64, 795 P.2d 750 (1990)).  We have 

also defined "'[c]onstructive delivery'" as "the transfer of a controlled substance belonging to the 

defendant or under the defendant's control, by some other person or manner at the instance and 

direction of the defendant.'"  Martinez, 123 Wn. App. at 846 n.8; see also Campbell, 59 Wn. 

App. at 63 (stating the same).  Jury instruction 13 instructed the jury on an unwitting possession 

affirmative defense.  

       Here, Penfield testified that the methamphetamine belonged to Bennett and that he 

provided it for them to smoke.  Thus, the jury could reasonably conclude that Bennett owned and 

controlled the methamphetamine.  Penfield also testified that she and Hensley went to Bennett's

residence hoping to smoke methamphetamine, and that the three of them began smoking it and 

passed the methamphetamine pipe from person to person five times.  Thus, a jury could also

reasonably conclude as a matter of logical probability that, even if Bennett did not hand the pipe 

to Hensley, he intended for Penfield to pass it to Hensley, which she did.  See Goodman, 150 

                                               15 

No.  41564-0-II

Wn.2d at 781.  Any contrary testimony or evidence was a credibility issue the jury resolved

against Bennett.  Thomas, 150 Wn.2d at 874-75.  Accordingly, when viewed in the light most 

favorable to the State, we hold that sufficient evidence supports Bennett's conviction for 

methamphetamine delivery to a minor, and his claims fail.  

       2.     Methamphetamine Possession

       Bennett also argues that the evidence is insufficient to support his unlawful possession of 

methamphetamine conviction.  He argues that we should exercise our "power to recognize 

common law elements of an offense or even to create defenses" and require a "measurable 

amount" of the controlled substance as a common law element of a possession offense and, thus, 

we should hold that a conviction may not be based on trace amounts or residue of a controlled 

substance.  Br. of Appellant at 14-16.  To hold otherwise, Bennett contends, would lead to the 

"unduly harsh" result of making Washington the only state "to impose criminal liability for 

[unlawful possession of residue or] de minimis possession without proof of knowledge." Br. of 

Appellant at 13.  He concludes that evidence of possession of only methamphetamine residue is 

insufficient to support a possession conviction.  We disagree.  

       Bennett's challenge initially requires statutory interpretation.  We review questions of 

statutory interpretation de novo.  Jacobs, 154 Wn.2d at 600.  When interpreting a statute, we 

seek to ascertain the legislature's intent.  Jacobs, 154 Wn.2d at 600.  Where a statute's meaning 

is plain on its face, we must give effect to that meaning as expressing the legislature's intent.  

Jacobs, 154 Wn.2d at 600.  We determine the statute's plain meaning from the ordinary meaning 

of its language, as well as from the statute's general context, related provisions, and the statutory 

scheme as a whole.  Jacobs, 154 Wn.2d at 600.  When a statute is unambiguous, we may not add 

                                               16 

No.  41564-0-II

words or clauses that the legislature has chosen not to include.  J.P., 149 Wn.2d at 450.

       RCW 69.50.4013(1) provides, "It is unlawful for any person to possess a controlled 

substance unless the substance was obtained directly from, or pursuant to, a valid prescription or 

order of a practitioner while acting in the course of his or her professional practice, or except as 

otherwise authorized by this chapter." Our Supreme Court has held that, by its plain language, 

the possession statute does not contain a knowledge element and has refused to imply such an 

element.  State v. Bradshaw, 152 Wn.2d 528, 537, 98 P.3d 1190 (2004).  But Washington 

recognizes an unwitting possession affirmative defense to "ameliorate[] the harshness of [the] 

strict liability crime."  Bradshaw, 152 Wn.2d at 538.    

       Similarly, it is unambiguous that the plain language of RCW 69.50.4013 does not contain 

a "measurable amount" element; thus, we are constrained from adding one.  J.P., 149 Wn.2d at 

450.  Even were we not so constrained, Washington's recognition of an unwitting possession 

defense "alleviates any concern that a person could be convicted for quantities of a controlled 

substance that were so small that the person could not have been aware they possessed a 

controlled substance." Br. of Resp't at 13.  Contrary to Bennett's claim, Washington law does 

allow evidence of knowledge, or the lack thereof.  That Washington law currently places the 

burden of proof of knowledge on defendants is a matter properly addressed to the legislature, not 

the courts.

       Accordingly, in the absence of a "measurable amount" element in RCW 69.50.4013, it was 

unlawful for Bennett to possess any amount of methamphetamine, including residue.  See State v. 

Rowell, 138 Wn. App. 780, 786, 158 P.3d 1248 (2007); State v. Malone, 72 Wn. App.  429, 438-

440, 864 P.2d 990 (1994). Here, Bennett possessed glass pipes that tested positive for 

                                               17 

No.  41564-0-II

methamphetamine residue.  Sufficient evidence supports his methamphetamine possession 

conviction, and this claim fails.  

                                               18 

No.  41564-0-II

                              Admission of Photographic Evidence

       At trial and outside the jury's presence, Bennett objected to three photographs of his 

basement that the State planned to offer into evidence.  He argued that the photographs showed 

the basement walls covered with pictures of nude women, which was irrelevant, prejudicial, and 

cumulative, and that the State was trying to "paint [him] in a certain light."  1 RP at 79.  The 

State argued that it intended to offer the photographs to corroborate Penfield's and Stone's 

testimony about the basement's appearance on the nights in question and to show the basement's 

"festive or party type setting or atmosphere."  1 RP at 80.  The trial court ruled:

       [A]s long as the pictures accurately depict what the witness[es] will describe as 
       being the situation or the atmosphere in the basement, where they smoked 
       methamphetamine, I don't see how they are not relevant or how they are not 
       material to what's being presented, and I don't think the mere fact that this stuff is 
       on the wall in and of itself is so inflammatory to justify keeping them out.
              As I said earlier it's not against the law.  You can have a 20 foot high 
       mural of a nude body painted on the wall of your bedroom if you wanted to and 
       it's not against the law to do that.  It just all depends on what your taste is.  If 
       that's what you want to do, that's what you do.

1 RP at 81-82.  

       After Penfield testified that the basement contained "pictures of women, pictures of all of 

[Bennett's] friends that he took down there, strobe lights, [and] his guitar," the trial court 

admitted the photographs over Bennett's renewed objection.  1 RP at 88-89.  The photographs 

were consistent with Penfield's testimony.  The trial court also admitted, without objection and 

after Penfield identified them, photographs of Bennett's bedroom, of the two pipes recovered 

from the dresser drawer, and of Penfield, Hensley, and Bennett in the basement on the night they 

smoked methamphetamine together.  Stone also identified the photographs depicting the 

basement and photographs of him with Hensley and Bennett in the basement on November 21.    

                                               19 

No.  41564-0-II

       Bennett argues that the trial court abused its discretion in admitting the three photographs 

of his basement under ER 404(b) and ER 403 because they showed the pictures of nude women 

on the basement's wall.  The State contends that the trial court did not abuse its discretion 

because the photographs did not implicate ER 404(b) and the trial court correctly determined that 

their probative value outweighed any prejudicial effect under ER 403.  We agree with the State.  

       We review the trial court's evidentiary rulings for abuse of discretion.  State v. Fisher, 165 

Wn.2d 727, 750, 202 P.3d 937 (2009).  A trial court abuses its discretion when it bases its 

decision on unreasonable or untenable grounds.  State v. Rafay, 167 Wn.2d 644, 655, 222 P.3d 

86 (2009).

       1.     ER 404(b) 

       ER 404(b) provides, "Evidence of other crimes, wrongs, or acts is not admissible to prove 

the character of a person in order to show action in conformity therewith." First, as the trial court 

observed, the photographs were not illegal nor were they evidence of other wrongs or acts.  Thus, 

they were not subject to ER 404(b) scrutiny.  Furthermore, the record reflects that the State did 

not seek to admit the photographs as evidence of Bennett's character but sought to admit them to 

corroborate Penfield's and Stone's testimony describing the basement and to depict the "festive"

appearance of the basement on the nights in question.  1 RP at 78-80.  Accordingly, the 

photographs did not implicate ER 404(b), and Bennett's claim fails.

       2.     ER 403

       ER 403 provides, "Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading 

the jury, or by considerations of undue delay, waste of time, or needless presentation of 

                                               20 

No.  41564-0-II

cumulative evidence." ER 402 provides, "All relevant evidence is admissible, except as limited by 

. . . these rules." ER 401 defines "'[r]elevant evidence'" as "evidence having any tendency to 

make the existence of any fact that is of consequence to the determination of the action more 

probable or less probable than it would be without the evidence."  

       Here, the photographs were relevant to corroborate Penfield's and Stone's testimony 

about the basement's appearance and atmosphere.  The photographs were not cumulative, as they 

corroborated different details of Penfield's and Stone's testimony, such as the pictures of nude 

women and friends on the walls and the presence of a guitar.  Further, as the trial court 

recognized, the photographs did not depict anything illegal.  Because the trial court admitted the 

three photographs based on tenable reasons, it did not abuse its discretion and Bennett's claim 

fails.

                                       Double Jeopardy

       After Bennett unsuccessfully moved on double jeopardy grounds for merger of his 

methamphetamine possession conviction with either delivery conviction, the trial court sentenced 

him to 96 months' imprisonment.  Bennett now further argues that his convictions for 

methamphetamine delivery to a minor, methamphetamine delivery, and unlawful 

methamphetamine possession violated protections against double jeopardy under the federal and 

state constitutions because the convictions were based on the same acts.  We again disagree.  

       We review double jeopardy claims de novo.  State v. Knight, 162 Wn.2d 806, 810, 174 

P.3d 1167 (2008).  Our state constitution provides, "No person shall . . . be twice put in jeopardy 

for the same offense."  Wash. Const. art. I, § 9; accord, U.S. Const. amend. V.  If double 

jeopardy results from a conviction for more than one crime, the remedy is vacation of the lesser 

                                               21 

No.  41564-0-II

offense.  State v. Weber, 159 Wn.2d 252, 265, 269, 149 P.3d 646 (2006).

       When the relevant statutes do not expressly disclose legislative intent to treat the charged 

crimes as the same offense, we determine whether the charged crimes are the same in law and 

fact.  This is known as the Blockburger test.  Blockburger v. United States, 284 U.S. 299, 52 S. 

Ct. 180, 76 L. Ed. 306 (1932); In re Pers. Restraint of Orange, 152 Wn.2d 795, 816-17, 100 

P.3d 291 (2004).  

       The Blockburger test is a rule of statutory construction used to discern legislative 

purpose.  State v. Calle, 125 Wn.2d 769, 778, 888 P.2d 155 (1995). We must answer two 

questions -- whether the two charged crimes arose from the same act and, if so, whether the 

evidence supporting conviction of one crime was sufficient to support conviction of the other 

crime.  Orange, 152 Wn.2d at 820.  "The applicable rule is that, where the same act or transaction 

constitutes a violation of two distinct statutory provisions, the test to be applied to determine 

whether there are two offenses or only one, is whether each provision requires proof of a fact 

which the other does not."  Blockburger, 284 U.S. at 304.  We view the offenses as they were 

charged, not in the abstract.  In re Pers. Restraint of Francis, 170 Wn.2d 517, 523-24, 242 P.3d 

866 (2010).  

       1.     Delivery Convictions

       Bennett, citing State v. Marchi, 158 Wn. App. 823, 829, 243 P.3d 556 (2010), review 

denied, 171 Wn.2d 1020 (2011), argues that his delivery of methamphetamine to a minor and 

delivery of methamphetamine convictions arose from the same act.  But in Marchi, we held that 

Marchi's convictions arose from the same act because they involved poisoning the same victim on 

the same occasion.  158 Wn. App. at 830.  In contrast, here the State charged Bennett with 

                                               22 

No.  41564-0-II

delivering methamphetamine to a minor, Hensley, and delivering methamphetamine to Penfield, 

i.e., different recipients on the same occasion.  The two charged delivery offenses involved 

deliveries to two different people, i.e., separate acts.  Bennett's convictions for delivery do not 

violate double jeopardy, and his claim fails. 

       2.     Delivery Convictions and Possession Conviction

       Bennett also argues that his convictions for methamphetamine delivery to Hensley and 

Penfield and his methamphetamine possession conviction violate double jeopardy.  But the dates 

of the charged delivery offenses were between November 1 and November 20, 2008.  The 

methamphetamine possession charge was for conduct occurring on November 23, 2008.  Thus, 

the charged crimes arose from separate acts, i.e., Bennett's methamphetamine delivery on one 

date and Bennett's methamphetamine possession on a subsequent date.  Thus, his convictions do 

not violate double jeopardy, and his claim fails. 

                                        Offender Score

       Bennett argues that the trial court abused its discretion by not considering whether his 

convictions for methamphetamine delivery to a minor and methamphetamine delivery constituted 

the same criminal conduct for purposes of calculating his offender score.  We do not review his 

challenge on this issue because he failed to preserve it below.  

       We review the trial court's same criminal conduct determinations for abuse of discretion.  

State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).  Generally, the failure to challenge an 

offender score calculation fails to preserve the issue "'where the alleged error involves a matter of 

trial court discretion.'"  State v. Wilson, 170 Wn.2d 682, 689, 244 P.3d 950 (2010) (quoting In re 

Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002)).  Here, Bennett failed to 

                                               23 

No.  41564-0-II

challenge his offender score calculation on same criminal conduct grounds before the trial court.  

Accordingly, he failed to preserve his direct challenge on this issue.

                                               24 

No.  41564-0-II

                               Ineffective Assistance of Counsel

       Bennett's final argument is that his right to effective assistance of counsel under both the 

state and federal constitutions was violated because defense counsel failed to argue that Bennett's 

two delivery convictions constituted the same criminal conduct.  This claim fails. 

       We review claims of ineffective assistance of counsel de novo.  State v. McFarland, 127 

Wn.2d 322, 334-35, 899 P.2d 1251 (1995).  To prevail on an ineffective assistance of counsel 

claim, the defendant must show that defense counsel's objectively deficient performance 

prejudiced him.  McFarland, 127 Wn.2d at 334-35.  We strongly presume that counsel is effective 

and the defendant must show no legitimate strategic or tactical reason supporting defense 

counsel's actions.  McFarland, 127 Wn.2d at 335-36.  To demonstrate prejudice, the defendant 

must show a reasonable probability exists that, absent trial counsel's inadequate performance, the 

proceeding would have resulted in a different outcome.  McFarland, 127 Wn.2d at 335.  A failure 

to demonstrate either deficient performance or prejudice defeats an ineffective assistance claim.  

See McFarland, 127 Wn.2d at 334-35; see also Strickland v. Washington, 466 U.S. 668, 700, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).  

         We ultimately review a trial court's same criminal conduct determination for abuse of 

discretion.  Haddock, 141 Wn.2d at 110.  Discretion exercised in violation of a statute is 

untenable and amounts to an abuse of discretion.  Council House, Inc. v. Hawk, 136 Wn. App. 

153, 159, 161-62, 147 P.3d 1305 (2006); State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 

922 (1995).  We review issues of statutory interpretation de novo.  Jacobs, 154 Wn.2d at 600.

       When the trial court sentences a defendant for multiple current offenses, it should treat the 

offenses as one crime for offender scoring purposes if it determines that the multiple offenses 

                                               25 

No.  41564-0-II

constitute the same criminal conduct.  RCW 9.94A.589(1)(a).  "'Same criminal conduct'" means 

"two or more crimes that require the same criminal intent, are committed at the same time and 

place, and involve the same victim." RCW 9.94A.589(1)(a).  If any of these elements are missing, 

the offenses do not constitute the same criminal conduct.  Haddock, 141 Wn.2d at 110.   

       The victim of delivery of a controlled substance is generally "the public at large."  State v. 

Garza-Villarreal, 123 Wn.2d 42, 45, 47, 864 P.2d 1378 (1993).  But in State v. Vanoli, 86 Wn. 

App. 643, 651-52, 937 P.2d 1166 (1997), Division One of this court considered whether the 

crime of delivery of a controlled substance to a minor has a different victim.  It observed:  

       [T]he purpose of the age enhancement statute, RCW 69.50.406, is to punish not 
       just deliveries but deliveries to minors. The enactment of this special statute to 
       separately address deliveries of drugs to minors, and the statute's provision for 
       enhanced penalties for such deliveries, demonstrates the Legislature's recognition 
       that minors are indeed victims, as well as participants, when they are given illegal 
       drugs.

Vanoli, 86 Wn. App. at 651-52.  

       We find Vanoli persuasive.  Accordingly, the victim of Bennett's methamphetamine 

delivery to Penfield, a non-minor, was the general public.  But the victim of Bennett's delivery to 

Hensley, a minor, was both the public and Hensley herself.  Because the offenses involved 

different victims, they did not constitute the same criminal conduct, and Bennett was not 

prejudiced by defense counsel's failure to argue such.  He fails to demonstrate ineffective 

                                               26 

No.  41564-0-II

assistance of counsel, and his claim fails.   

       We affirm Bennett's convictions.

                                                 Van Deren, J.
We concur:

Armstrong, J.

Worswick, A.C.J.

                                               27