VAN DEREN

Manek R. Mistry, Backlund & Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, Counsel for Appellant. Sara I. Beigh, Lewis County Prosecutors Office, Chehalis, Counsel for Respondent.

PUBLISHED IN PART OPINION

VAN DEREN, J.

¶ 1 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. Finding no error, we affirm.

FACTS

¶ 2 According to Ashleigh Penfield, in November 2008, she and Chelsea Hensley , 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).

¶ 3 At the close of the evidence at trial, the trial court judge and counsel met in chambers 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 opportunity to 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.

¶ 4 The jury convicted Bennett as charged. He appeals.

ANALYSIS

Public Trial Right

¶ 5 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.

¶ 6 Whether a violation of the public trial right exists is a question of law we review de novo. State v. Momah, 167 Wash.2d 140, 147, 217 P.3d 321 (2009), cert. denied, ––– U.S. ––––, 131 S.Ct. 160, 178 L.Ed.2d 40 (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.

¶ 7 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 Wash.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 Wash.App. 97, 114, 193 P.3d 1108 (2008) (emphasis omitted) (internal quotation marks omitted) (quoting Rivera, 108 Wash.App. at 652, 32 P.3d 292). 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 Wash.App. at 114, 193 P.3d 1108. 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.

¶ 8 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 Wash.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 Wash.2d at 883, 246 P.3d 796 (quoting Snyder, 291 U.S. at 106, 54 S.Ct. 330).

¶ 9 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. Brightman, 155 Wash.2d 506, 514, 122 P.3d 150 (2005); see also State v. Leyerle, 158 Wash.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 Wash.2d at 514, 122 P.3d 150; Dreiling v. Jain, 151 Wash.2d 900, 903–04, 93 P.3d 861 (2004)).

¶ 10 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 Wash.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).

¶ 11 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 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 Wash.2d at 881, 246 P.3d 796 (quoting Snyder, 291 U.S. at 105–06, 54 S.Ct. 330); see, e.g., Irby, 170 Wash.2d at 883, 246 P.3d 796; State v. Rice, 110 Wash.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 Wash.2d at 514, 122 P.3d 150; Leyerle, 158 Wash.App. at 479, 242 P.3d 921.

¶ 12 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. But see In re Det. of Ticeson, 159 Wash.App. 374, 383–86, 246 P.3d 550 (2011) (holding that Washington law historically supports in-chambers conferences on purely legal issues).

¶ 13 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 Batson challenge need not be held in public. 147 Wash.App. at 116–18, 193 P.3d 1108. 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 Wash.App. at 118, 193 P.3d 1108 (emphasis added).

¶ 14 In State v. Sublett, 156 Wash.App. 160, 181–82, 231 P.3d 231, review granted, 170 Wash.2d 1016, 245 P.3d 775 (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 Wash.App. at 183, 231 P.3d 231 (citing In re Pers. Restraint of Lord, 123 Wash.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 rule that the issues raised during in-chambers conferences are not subject to public scrutiny and the defendant's right to be present.

¶ 15 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.

¶ 16 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.

¶ 17 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 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. 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

¶ 18 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.

¶ 19 Defendants may challenge an illegal or erroneous sentence for the first time on appeal. State v. Bahl, 164 Wash.2d 739, 744, 193 P.3d 678 (2008). We review questions of statutory interpretation de novo. State v. Jacobs, 154 Wash.2d 596, 600, 115 P.3d 281 (2005). When interpreting a statute, we seek to ascertain the legislature's intent. Jacobs, 154 Wash.2d at 600, 115 P.3d 281. 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 Wash.2d at 600, 115 P.3d 281. 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 Wash.2d at 600, 115 P.3d 281. 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 Wash.2d 444, 450, 69 P.3d 318 (2003). We interpret statutes to harmonize them whenever possible. State v. Powell, 167 Wash.2d 672, 695–96, 223 P.3d 493 (2009).

¶ 20 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 RCW 69.50.401(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:

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 69.50.410 by 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.)

¶ 21 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.

¶ 22 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.

¶ 23 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 possible. Powell, 167 Wash.2d at 695–96, 223 P.3d 493. 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.

¶ 24 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.

¶ 25 A majority of 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.

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Sufficiency of the Evidence

¶ 26 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.

¶ 27 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.

¶ 28 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.

¶ 29 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.

¶ 30 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.

¶ 31 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 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.

¶ 32 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

¶ 33 “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 Wash.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 Wash.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 Wash.2d at 8, 133 P.3d 936. In the sufficiency context, we consider circumstantial evidence as probative as direct evidence. State v. Goodman, 150 Wash.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 Wash.2d at 781, 83 P.3d 410. We defer to the fact finder on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v. Thomas, 150 Wash.2d 821, 874–75, 83 P.3d 970 (2004), abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

¶ 34 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 Wash.App. 841, 846–47, 99 P.3d 418 (2004) (internal quotation marks omitted) (quoting State v. Campbell, 59 Wash.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 Wash.App. at 846 n. 8, 99 P.3d 418; see also Campbell, 59 Wash.App. at 63, 795 P.2d 750 (stating the same). Jury instruction 13 instructed the jury on an unwitting possession affirmative defense.

¶ 35 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 Wash.2d at 781, 83 P.3d 410. Any contrary testimony or evidence was a credibility issue the jury resolved against Bennett. Thomas, 150 Wash.2d at 874–75, 83 P.3d 970. 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

¶ 36 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.

¶ 37 Bennett's challenge initially requires statutory interpretation. We review questions of statutory interpretation de novo. Jacobs, 154 Wash.2d at 600, 115 P.3d 281. When interpreting a statute, we seek to ascertain the legislature's intent. Jacobs, 154 Wash.2d at 600, 115 P.3d 281. 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 Wash.2d at 600, 115 P.3d 281. 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 Wash.2d at 600, 115 P.3d 281. When a statute is unambiguous, we may not add words or clauses that the legislature has chosen not to include. J.P., 149 Wash.2d at 450, 69 P.3d 318.

¶ 38 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 Wash.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 Wash.2d at 538, 98 P.3d 1190.

¶ 39 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 Wash.2d at 450, 69 P.3d 318. 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.

¶ 40 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 Wash.App. 780, 786, 158 P.3d 1248 (2007); State v. Malone, 72 Wash.App. 429, 438–440, 864 P.2d 990 (1994). Here, Bennett possessed glass pipes that tested positive for methamphetamine residue. Sufficient evidence supports his methamphetamine possession conviction, and this claim fails.

Admission of Photographic Evidence

¶ 41 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.

¶ 42 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.

¶ 43 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.

¶ 44 We review the trial court's evidentiary rulings for abuse of discretion. State v. Fisher, 165 Wash.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 Wash.2d 644, 655, 222 P.3d 86 (2009).

1. ER 404(b)

¶ 45 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

¶ 46 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 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.”

¶ 47 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

¶ 48 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.

¶ 49 We review double jeopardy claims de novo. State v. Knight, 162 Wash.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 offense. State v. Weber, 159 Wash.2d 252, 265, 269, 149 P.3d 646 (2006).

¶ 50 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 Wash.2d 795, 816–17, 100 P.3d 291 (2004).

¶ 51 The Blockburger test is a rule of statutory construction used to discern legislative purpose. State v. Calle, 125 Wash.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 Wash.2d at 820, 100 P.3d 291. “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, 52 S.Ct. 180. We view the offenses as they were charged, not in the abstract. In re Pers. Restraint of Francis, 170 Wash.2d 517, 523–24, 242 P.3d 866 (2010).

1. Delivery Convictions

¶ 52 Bennett, citing State v. Marchi, 158 Wash.App. 823, 829, 243 P.3d 556 (2010), review denied, 171 Wash.2d 1020, 253 P.3d 393 (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 Wash.App. at 830, 243 P.3d 556. In contrast, here the State charged Bennett with 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

¶ 53 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

¶ 54 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.

¶ 55 We review the trial court's same criminal conduct determinations for abuse of discretion. State v. Haddock, 141 Wash.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 Wash.2d 682, 689, 244 P.3d 950 (2010) (quoting In re Pers. Restraint of Goodwin, 146 Wash.2d 861, 874, 50 P.3d 618 (2002)). Here, Bennett failed to 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.

Ineffective Assistance of Counsel

¶ 56 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.

¶ 57 We review claims of ineffective assistance of counsel de novo. State v. McFarland, 127 Wash.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 Wash.2d at 334–35, 899 P.2d 1251. 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 Wash.2d at 335–36, 899 P.2d 1251. 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 Wash.2d at 335, 899 P.2d 1251. A failure to demonstrate either deficient performance or prejudice defeats an ineffective assistance claim. See McFarland, 127 Wash.2d at 334–35, 899 P.2d 1251; see also Strickland v. Washington, 466 U.S. 668, 700, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 58 We ultimately review a trial court's same criminal conduct determination for abuse of discretion. Haddock, 141 Wash.2d at 110, 3 P.3d 733. Discretion exercised in violation of a statute is untenable and amounts to an abuse of discretion. Council House, Inc. v. Hawk, 136 Wash.App. 153, 159, 161–62, 147 P.3d 1305 (2006); State v. Rundquist, 79 Wash.App. 786, 793, 905 P.2d 922 (1995). We review issues of statutory interpretation de novo. Jacobs, 154 Wash.2d at 600, 115 P.3d 281.

¶ 59 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 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 Wash.2d at 110, 3 P.3d 733.

¶ 60 The victim of delivery of a controlled substance is generally “the public at large.” State v. Garza–Villarreal, 123 Wash.2d 42, 45, 47, 864 P.2d 1378 (1993). But in State v. Vanoli, 86 Wash.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 Wash.App. at 651–52, 937 P.2d 1166.

¶ 61 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 assistance of counsel, and his claim fails.

¶ 62 We affirm Bennett's convictions.

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We concur: ARMSTRONG, J. and WORSWICK, A.C.J.