STATE v. GAWORSKI (2007)

PUBLISHED IN PART

¶ 1 Steven Gaworski was convicted of manufacture of methamphetamine.   He was also convicted of several related offenses, including separate counts of possession of pseudoephedrine and anhydrous ammonia with intent to manufacture methamphetamine, and two counts of endangering a child with a controlled substance.   We agree with Gaworski that certain sentencing errors occurred.   First, the unit of prosecution for possession of precursor ingredients with intent to manufacture methamphetamine is determined by examining intent, not the number of ingredients.   Second, sentencing enhancements for manufacturing methamphetamine near a school bus stop and within the presence of a child must run concurrently.   We therefore remand for vacation of one of Gaworski's two possession convictions and imposition of concurrent enhancements.   Otherwise, we affirm.

BACKGROUND

¶ 2 Starr Gaworski lived in a town home with her children, C.N. and J.N. She was separated from her husband, Steven Gaworski, but he visited frequently.   Late on December 4, 2003, officers from the Auburn Police Department entered the home.   They walked into a thick, gray cloud of strong-smelling chemicals and found considerable evidence of methamphetamine manufacturing, including items containing methamphetamine residue, reduced methamphetamine compound, and a residue comprised of pseudoephedrine and antihistamines.   They also found a coffee grinder with a powdery residue, six boxes of pseudoephedrine, empty canisters of the gasoline additive Heet, toluene, propane tanks containing anhydrous ammonia, muriatic acid, and plastic tubing.   The State charged Steven Gaworski with five counts:  manufacturing methamphetamine, possessing pseudoephedrine with intent to manufacture methamphetamine, possessing ammonia with intent to manufacture methamphetamine, endangering a dependent child [C.N.] with a controlled substance, and endangering a dependent child [J.N.] with a controlled substance.

¶ 3 At trial, Gaworski's wife, Starr, testified that she used the toluene, Heet, muriatic acid, and coffee filters for art projects and household chores, and had bought six boxes of Sudafed because it was on sale.   She also testified, for the first time, that some of the evidence recovered by the officers belonged to an acquaintance, Marcus Bush, who was using the materials to build cabinets for his mother as a Christmas present.   She had not mentioned Bush before trial because “she didn't think it was important.” ¹  The jury convicted Gaworski on all charged counts.   The jury also found that the first three offenses were committed in the presence of two minors and within 1,000 feet of a school bus stop.

¶ 4 In the published portion of this opinion we address Gaworski's double jeopardy claims that (1) his convictions for possession of precursor chemicals with intent to manufacture should merge with his conviction for manufacture of methamphetamine, (2) he cannot suffer the sentence enhancement imposed for manufacturing in the presence of a minor and also be convicted of child endangerment, and (3) he cannot be separately convicted of possession of two ingredients (pseudoephedrine and ammonia) with intent to manufacture.   The remaining issues are addressed in the unpublished portion of this opinion.

ANALYSIS

Double Jeopardy

¶ 5 Double jeopardy analysis, within the bounds of the Eighth Amendment, is an inquiry into legislative intent:  Did the legislature authorize separate punishments for crimes that violate multiple statutes? ²

 ¶ 6 Gaworski first contends that possession of pseudoephedrine and anhydrous ammonia with the intent to manufacture merge with unlawful manufacture of methamphetamine, because manufacture necessarily involves possession of precursors with intent to manufacture.   This proposition is incorrect, and in any case the doctrine of merger does not apply here.

¶ 7 The doctrine of merger is one means of determining whether the legislature intends multiple punishments, and applies when a crime is elevated to a higher degree by proof of some other crime.³  None of Gaworski's offenses was elevated to a higher degree by commission of another crime.

 ¶ 8 Gaworski's argument is better evaluated under the test announced in Blockburger v. United States,⁴ which asks whether each crime requires proof of a fact the other does not.   If so, we presume the legislature intended separate punishment.⁵  The Blockburger presumption may be rebutted by evidence of contrary legislative intent.⁶

 ¶ 9 The criminal code defines “manufacturing” as

the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.[7]

Possession of precursor ingredients is not a required element of manufacturing.   A person who knowingly plays even a limited role in any of these processes manufactures methamphetamine, and a person can knowingly commit the crime of manufacturing a controlled substance without ever constructively possessing it.⁸  For example, fingerprints on four items in a “box lab” used only to manufacture methamphetamine were sufficient evidence to sustain a conviction of manufacturing.⁹  Conversely, a person may possess precursor ingredients with intent to manufacture methamphetamine without ever beginning the actual manufacturing process.   The two crimes do not require proof of the same facts, and we presume the legislature intended separate punishments.

¶ 10 Gaworski presents no contrary evidence of legislative intent.   His conviction under both statutes does not violate double jeopardy.

Sentence Enhancement

 ¶ 11 Under RCW 9.94A.605, Gaworski's sentence was enhanced for manufacturing methamphetamine in the presence of a minor.   He contends the enhancement merges with his convictions for child endangerment under RCW 9A.42.100. Again, the merger doctrine does not apply.¹⁰  Enhancement statutes increase the punishment for the underlying crime, but they do not elevate the degree of a crime or create a separate criminal offense.¹¹  HERE, THE ENHANCEMEnt applies when a defendant manufactures methamphetamine or possesses precursors with intent to manufacture methamphetamine, and a child was on the “premises of manufacture,” regardless of whether the defendant knew of the child's presence.¹²  A person is guilty of endangerment with a controlled substance when he or she “ knowingly or intentionally permits a dependent child or dependent adult to be exposed to, ingest, inhale, or have contact with methamphetamine” or its ingredients when they are being used to manufacture methamphetamine.¹³  The element requires only that the child be on the premises, while the crime of endangerment requires knowingly permitting exposure, ingestion, inhalation or contact on the part of the child.   Again, the enhancement and the endangerment offense do not require proof of the same fact.   Even if an enhancement can be subject to double jeopardy analysis, here there is clearly no violation.

Unit of Prosecution

¶ 12 The State charged Gaworski with two violations of RCW 69.50.440, one for possession of pseudoephedrine with the intent to manufacture methamphetamine and one for possession of anhydrous ammonia, with the same intent.   The jury convicted on both counts.   Gaworski contends that where a defendant possesses the precursors at the same time and location, and has a single manufacturing operation, the State cannot separately prosecute possession of each precursor.   The State responds that the legislature, by listing individual substances in the statute, indicated its intent to permit a separate prosecution for each substance.

 ¶ 13 As in cases where the same conduct violates multiple statutes, we look to legislative intent to determine whether multiple convictions are authorized for separate violations of the same statute.   We determine the unit of prosecution intended by the legislature by looking first to the language of the statute.¹⁴  If the legislature has failed to define the unit of prosecution, or its intent is unclear, then the rule of lenity applies, and we resolve any uncertainty against turning a single transaction into multiple offenses.¹⁵

 ¶ 14 The statute provides as follows:

It is unlawful for any person to possess ephedrine or any of its salts or isomers or salts of isomers, pseudoephedrine or any of its salts or isomers or salts of isomers, pressurized ammonia gas, or pressurized ammonia gas solution with intent to manufacture methamphetamine, including its salts, isomers, and salts of isomers.[16]

¶ 15 Under this plain language, a crime occurs whenever a person possesses any one of the ingredients listed, with intent to manufacture methamphetamine.   Had the legislature banned simple possession of these ingredients, regardless of intent, there would be no question but that separate prosecutions were authorized for each substance.

¶ 16 Gaworski argues, however, that the mens rea element demonstrates a legislative purpose to punish possession of precursor ingredients for a single manufacturing operation as a single crime, regardless of the number of individual ingredients.   He contends the statute is at best ambiguous, and must be interpreted in his favor.

¶ 17 Previous cases have addressed the unit of prosecution for possession of controlled substances with intent to manufacture or deliver.¹⁷  In those cases, the unit of prosecution turned on the nature of the defendant's intent.   For example, establishing two “wholly self-contained” marijuana grow operations in different towns evidenced two separate intents to manufacture marijuana, and the defendant was properly convicted of two counts of possession of marijuana with intent to deliver.¹⁸  A defendant who brought 5.5 grams of cocaine into an apartment during a buy-bust operation had an immediate intent to deliver, distinct from his intent for future delivery of the 83.9 grams of cocaine remaining outside in his van.   Consequently, his conviction for two counts of possession with intent to deliver did not violate double jeopardy.¹⁹  But when officers arresting a defendant in his car found cocaine on the floorboard and on his person, the evidence showed only one future intent to deliver the cocaine, and the defendant could be convicted of only one count of possession with intent to deliver.²⁰

¶ 18 As Justice Talmadge noted in Adel, the unit of prosecution is necessarily a case-by-case determination.²¹  In this case, possession of precursor chemicals is legal unless joined with the intent to manufacture methamphetamine.   Gaworski had only one manufacturing operation.   The statute does not answer whether possession of each and every item listed in the statute for a single manufacturing operation may be prosecuted separately.   The rule of lenity thus favors Gaworski.   Under these circumstances, we hold there is a single unit of prosecution.   We therefore remand with instructions to vacate one of the two convictions under RCW 69.50.440 and resentence accordingly.

¶ 19 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2. 06.040.

Child Endangerment

¶ 20 Under RCW 9A.42.100, “[a] person is guilty of the crime of endangerment with a controlled substance if the person knowingly or intentionally permits a dependent child or dependent adult to be exposed to, ingest, inhale, or have contact with methamphetamine or substances being used to manufacture methamphetamine.”   The jury found Gaworski had endangered both of Starr's children, J.N. and C.N.

¶ 21 Gaworski contends the convictions should be vacated because the statute requires that the children be dependent upon the accused, not a third party.   That precise argument was recently rejected by the Washington Supreme Court in State v. Cooper:

Nothing in the plain language of the child endangerment statute or the dictionary definitions of “dependent” requires that the child must have a dependent relationship with the person charged under the statute beyond what is necessary to establish that the person knowingly or intentionally exposed the child to methamphetamine or its ingredients.   In the statute, “dependent” modifies “child,” and says nothing about the existence of a relationship between the person and the child at issue.   Thus, the plain meaning of dependent child is one who relies on any other-not necessarily the person charged-for basic necessities of life.[22]

¶ 22 Gaworski purposely manufactured methamphetamine in the home of his estranged wife's children, who were known by him and were dependent by virtue of being minors.   He thereby knowingly and intentionally exposed them to methamphetamine and its ingredients.23

Consecutive Enhancements

¶ 23 Gaworski alleges the trial court erred when it imposed consecutive sentence enhancements for manufacturing methamphetamine near a school bus zone and in the presence of a minor.   Gaworski is correct.   The enhancements must run concurrently.24  We reverse and remand for resentencing.

Prosecutorial Misconduct

¶ 24 In a claim for prosecutorial misconduct, the defendant must show that the prosecutor's conduct was both improper and prejudicial.25  Prejudice arises only if there is a substantial likelihood the misconduct affected the verdict.26  To determine the prejudicial effect of a prosecutor's improper comments, we consider the context of the total argument, the issues in the case, the evidence, and the jury instructions.27  If improper conduct directly violates a constitutional right, such as remarking on a criminal defendant's failure to testify, the State must show beyond a reasonable doubt that the error was harmless.28  If the improper conduct does not directly touch upon a constitutional right and the defendant fails to object at trial, the conduct must be so flagrant and ill-intentioned that it causes enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.29  If the defendant objects at trial on grounds of prosecutorial misconduct, we review the ruling for abuse of discretion.30

¶ 25 Gaworski first contends the prosecutor committed misconduct in closing argument when he characterized Gaworski's trial strategy as a “liar, liar, pants on fire” defense.   The prosecutor's remarks came in rebuttal, after defense counsel questioned the credibility of three of the prosecution's witnesses:

Jeff [Naval] is the landlord․ [H]e says [his] apartment bears a Scarlet M like the Scarlet A of Nathaniel Hawthorne, a condemned man․ He is saying [his] apartment complex has a curse because of [Gaworski], and ․ [Naval] may have trouble selling.   So it's understandable that he would hate [Gaworski], maybe more than he admitted, maybe more than he admits to himself, and that he would condemn [Gaworski] for being on the scene when he wasn't.

[J.N.] was an interesting witness․ He testified [Gaworski] was there, but that's all he said.   He never said anything about throwing up.   He never said anything about being exposed to the chemical․ So [J.N.] testified in a very odd manner, and I suggest that his testimony isn't very convincing because he just got up and said that and left, very odd, very odd for testimony.

․

But I suggest to you that [C.N.] doesn't remember things as precisely as she thinks․ I asked her if she hated [Gaworski] from the moment she met him, and she said, no․ [I]n her statement earlier when her representatives where there, she had said I hated him from the moment I met him.   Now, that's a really big difference.

․

And [J.N.'s testimony] also questions [C.N.'s] testimony because [C.N.] testified that [she] was exposed and he was exposed.   Well, if he wasn't exposed, why is [C.N.] saying that he was?   Now, [C.N.] may think that he was because she thinks that she was or whatever, or she actually hates Steve Gaworski so much that she doesn't, or can't or won't remember, but that's not enough to make it so.[31]

In rebuttal, the prosecutor said:

The defense in this case started out I suppose as an alibi defense.   And I suppose it still is to some extent, but now it has also been supplemented with the ․ liar, liar, pants on fire defense that counsel has just told you about, that [C.N.] is lying;  [J.N.] is lying;  Jeff Naval is lying;  the cops are probably lying about what they saw and what ․ was going on that day and that evening, right?

[C.N.] tells you [Gaworski] is there 2:30 in the afternoon, but she hates [Gaworski];  so she is lying, right?  [C.N.] says he is there all evening, but again, she is lying.

[J.N.] comes in and tells you he was there, you know, when I got home from wrestling at 4:30, but I guess he is lying, too, right;  he wasn't there.

Jeff Naval has this horrible axe to grind.   You heard him up here. He was angry, but philosophical, I think is what [defense counsel] called him, about the damages done to the apartment, right?   But he is lying because he is going to say that he was looking in on this apartment that he is getting drug complaints about, that he was watching to see what's going on there[.][A]nd that's a totally unreasonable thing for Jeff Naval to do, right?

He owns this place.   He is going to cruise in, hears that there is possibly a meth lab in this apartment, and he is just going to leave.   He is going to drive back up to Bellevue or wherever he lives and not even worry about it?   Of course, he's not going to do that.   He is going to watch the apartment․

But, you know, they are all lying.   They are all making this up, because ․ they hate [Gaworski] or whatever.   And [J.N.]'s testimony is what's called rebuttal testimony, okay.   And for the defense to now tell you that he should have been asked all these questions like what [C.N.] was asked on direct is not the purpose of rebuttal testimony.32

¶ 26 Gaworski contends these statements are improper under State v. Fleming,33 where the prosecutor told the jury that “for you to find the defendants ․ not guilty of the crime of rape in the second degree, ․ you would have to find either that [the victim] has lied about what occurred in that bedroom or that she was confused;  essentially that she fantasized what occurred back in that bedroom.”   The argument was improper, because the jury did not have to find that the victim was lying or confused to acquit.   Rather, the jury was required to acquit unless it had an abiding conviction in the truth of her testimony.34

¶ 27 The prosecutor here did not tell the jury it would have to find the State's witnesses were lying or confused in order to acquit.   He responded to the defense claim that the State's witnesses were lying or confused, and explained why that argument was illogical.   Prosecutors are entitled to make a fair response to the arguments of defense counsel.35  The remarks here were not improper.

¶ 28 Gaworski next contends the prosecutor committed misconduct by twice shifting the burden of proof during closing argument, first by saying the defense could have called J.N. as a witness, and second by questioning the defense failure to present any evidence about Bush other than Starr's testimony.   Again, we reject Gaworski's arguments.

¶ 29 The defense had argued in closing that J.N's testimony was odd because it was limited and did not include testimony about being exposed to chemicals.   The prosecutor explained in response that J.N was called as a rebuttal witness, which limited the scope of his testimony, and that the defense, although not obliged to call any witnesses, could have called J.N. if it wanted additional information from him.   The judge overruled Gaworski's objection to this remark.   We review this ruling for abuse of discretion.

¶ 30 The prosecutor's remark did not shift the burden of proof.   He repeatedly reminded the jury that the defendant had no obligation to present any witnesses:

[Prosecutor]:  And [J.N]'s testimony is what's called rebuttal testimony, okay.   And for the defense to now tell you that he should have been asked all these questions like what [C.N.] was asked on direct is not the purpose of rebuttal testimony.

He was called specifically, and he was asked six or eight questions ․ He was called specifically to rebut the story, fabrication, whatever you want to call it, that Starr and the defense witnesses brought to the table, that the defendant wasn't there that day.   That's what he did, and then he left.

The defense is not required to call any witnesses, and they did.   The defense had the opportunity to interview [J.N.] and [C.N.]. If the defense believed that they had some wonderful evidence that they were going to get from [J.N.], they could have called him.   They don't have to call him.

[Defense]:  Objection, Your Honor.   I have to interpose an objection.   Excuse me, counsel, but I do have to object.

[Court]:  I think you opened it up.   Overruled.

[Prosecutor]:  Again, they don't have to call anybody.   They have no burden, so forth, right?   But their argument is that we should have asked him all the same questions we asked [C.N.]. Why? So you could hear it all twice?   It's rebuttal testimony.   That's what it is;  it's nothing more.36

The prosecutor made clear that the defense criticism of J.N.'s testimony overlooked his limited role as a rebuttal witness.   There was no suggestion the defense should have called him as a witness.   We find no abuse of discretion in the court's ruling.

¶ 31 The prosecutor also remarked that the defense had failed to show that Marcus Bush was anything more than a “phantom.”   Gaworski contends that, having heard the judge overrule his objection about J.N., the jury was free to conclude that he had an obligation to produce Bush as a witness.   Thus, argues Gaworski, characterizing Bush as a phantom had the effect of shifting the burden of proof.

¶ 32 Although a defendant has no burden to produce evidence, a prosecutor may comment on the absence of a defense witness when the missing witness doctrine applies.37  The doctrine applies when a party has a natural interest in producing a witness, the witness is peculiarly available to that party, and the party inexplicably fails to call the witness to testify.   A witness is peculiarly available to a party when the witness and the party have a community of interest, or the party has so superior an opportunity for knowledge of the witness that it is reasonably probable the party would have called the witness to testify unless the witness's testimony would have been damaging.38  If the testimony would have been important and necessary, the doctrine allows the jury to infer that the witness's testimony would have been unfavorable. 39. A prosecutor may request a missing witness instruction, but such an instruction is not a prerequisite for comment on the failure to produce a witness.40

¶ 33 Starr Gaworski testified extensively about Bush. She claimed he was at her home on December 4, and that the propane tanks and a blue tote bag containing coffee filters belonged to him.   She said she was allowing Bush to build Christmas presents at her house in exchange for repairing her car.   She explained she never told the police about Bush because she “didn't think it was important,” 41 although she knew his name and phone number.   Other than Starr, Bush was the only person who could testify he owned the propane tanks and other materials in the apartment, and the only person who could rebut J.N.'s testimony that Gaworski was the only visitor in the town home when J.N. arrived home from school.

¶ 34 Defense counsel relied heavily on Bush during closing argument, arguing that C.N.'s testimony showed she had seen two people, one of whom was Bush, that Bush was the person with an extra key to the home, not the defendant;  and that Starr believed the police arrived because a neighbor had reported a loud argument she had with Bush.

¶ 35 The prosecutor answered this argument by questioning whether Bush existed:

Again, then we get to Marcus Bush, who, the only evidence that you have of him, it comes from Starr.   And there is no evidence before you to believe that he is anything more than a figment of her imagination.   He is a phantom.   He wasn't being looked for by the Auburn Police Department in connection with this lab that they were investigating for a month.

Nobody mentioned his name when they said there might be another guy in there.   And, again, you know why Sergeant Near said that;  he told you why.   He said that because until they confirm[,] they have to assume that there is somebody else in there.   And they even have to assume that person has a gun.   They don't want their officers to get shot because they walk in there nonchalantly.

They assumed that.   They didn't think that;  they just assumed.   It is a tactical police thing so they don't get hurt.   It's not, oh, gee, Marcus is in there[.][T]here is no Marcus.

․

Is it plausible that [Starr] would allow some guy she barely met at a Jiffy Lube to come over to her house where her 14-year-old daughter might be for two or three hours before she got home?   She is going to let some dude into her house to make a Christmas present for his mom.   And that was sweet.

Where is the Christmas present?   Where is the evidence that there is a Christmas present of some kind of wood and metal contraption being made there right in her kitchen or somewhere?   Where is it?   He has been working on it since mid-October or early October.   Where is it?   Where is the metal;  where is the wood?   Show us something;  give us some evidence that this guy exists.   She didn't even describe him.

Is he a white male?   Is he a black male?   Is he 50 or 40?   How tall is he?   It's hard to make up things that don't exist, and we have talked about that before.42

¶ 36 Because Starr never revealed Bush's existence before trial, he was peculiarly available to the defense.   His presence in the home was an essential component of the defense, and it is reasonably probable Gaworski would have called Bush to testify if he existed and his testimony would not have been damaging.   The missing witness doctrine applies here.

¶ 37 At oral argument, Gaworski contended the doctrine does not apply because Bush would have asserted his right to remain silent under the Fifth Amendment.   But Gaworski never raised this argument below, and we will not address it now. 43

¶ 38 Gaworski also contends the missing witness doctrine should be abandoned, and presents out-of-state authority supporting abolition of the doctrine.   Blair and Cheatam are the law in Washington, however, and Gaworski must address any criticism of those cases to the Supreme Court.

¶ 39 In another claim of prosecutorial misconduct, Gaworski asserts the prosecutor argued facts not in evidence by insinuating Gaworski told his witnesses how to testify.   Gaworski is correct that the prosecutor's suggestion was improper, but he ignores the fact that his objection was sustained:

And it fits because the defendant is helping to orchestrate this whole thing, right?   And we know that.   And the witnesses are being orchestrated by him, and together because they were meeting out in the hallway and talking about, not the case of course, but they are talking, right?   Diane Slaughter and Dave Shibot are talking with Starr.   And the defendant is writing Starr letters with case law in it.

What's happening is, the State's case is going on, and he is hearing about;  he is hearing everything.   He is hearing about the smoke detectors being removed, got to explain that one away, the Sudafed, tell them you have a cold.   Heet-

[Defense]:  Objection.   There is no evidence of that.

[Court]:  Sustained.44

¶ 40 The sustaining of an objection may itself be sufficient to dispel prejudicial impact of a prosecutor's statement.45  Gaworski made no request for a further curative instruction, and we see no basis for reversal in this exchange.

¶ 41 Finally, Gaworski claims he was harmed by the cumulative effect of the prosecutor's misconduct.   But two of the three instances Gaworski claims were misconduct were not, and the judge sustained his objection to the third.   The cumulative error doctrine does not apply.

Unanimity Instruction

¶ 42 Gaworski next contends the trial court erred when it allowed the jury to convict him of possession of pseudoephedrine with intent to manufacture methamphetamine, without requiring the State to elect whether it relied on the unopened boxes of pseudoephedrine found in the kitchen or the coffee filter residue which contained pseudoephedrine, or giving a unanimity instruction. 46  Failure to provide a unanimity instruction may be raised for the first time on appeal.47  To determine whether such an instruction is required, we must answer three questions:  (1) what must be proved under the statute, (2) what does the evidence disclose, and (3) whether the evidence discloses more than one violation.48

¶ 43 RCW 69.50.440 prohibits possession of pseudoephedrine with intent to manufacture methamphetamine.   Evidence of mere possession of pseudoephedrine is insufficient to convict under the statute.49  At least one additional fact, suggestive of intent, must be present.50  For example, possessing seven boxes of cold tablets containing pseudoephedrine is inadequate to convict a defendant of possession with intent to manufacture.51  But evidence of more than 400 loose tablets of pseudoephedrine, removed from their packs, and a coffee filter with methamphetamine residue in the defendant's pocket, suffices.52

¶ 44 Neither the State nor the jury can be required to rely on a single act when more than one act is required.   Six unopened boxes of pseudoephedrine would have been insufficient evidence to convict of intent to manufacture.   Six boxes plus pseudoephedrine residue in the coffee filter is another matter, and taken together, they are sufficient evidence of intent.   There was no place for a unanimity instruction here.

Same Criminal Conduct

¶ 45 Gaworski also contends that convictions for manufacturing methamphetamine and for possession of precursors with intent to manufacture methamphetamine arose from the same criminal conduct under RCW 9.94A.525(5)(a), and should be counted as one crime.53  Crimes constitute the same criminal conduct only if they share all of the three following elements:  (1) the same criminal intent, (2) the same time and place, and (3) the same victim.54  The statutory language is narrowly construed to disallow most assertions of same criminal conduct.55  We review a determination on same criminal conduct for an abuse of discretion or misapplication of the law.56

¶ 46 The parties do not dispute that Gaworski's crimes of possession occurred at the same time and the same place.   The only issue is whether they demonstrate the same intent.   If the criminal intent, viewed objectively, changes from one crime to the next, the crimes do not satisfy the definition for same criminal conduct.57  One facet of this inquiry is whether each crime reflects intent to act at the same point in time.   In State v. Maxfield,58 the defendant grew marijuana and stored baggies of marijuana in his kitchen.   The crimes did not have the same intent because the growing represented past and present intent to grow, while the baggies represented a future intent to deliver.   In State v. Burns,59 a completed drug delivery had past intent, while possessing additional drugs represented a future intent to deliver.

¶ 47 In Gaworski's case, possession with intent to manufacture requires a future intent.   Manufacturing, on the other hand, required no future intent;  the crime was complete.   Accordingly, the possession and manufacturing crimes are not the same criminal conduct.

Offender Score

¶ 48 At sentencing, the judge included two California convictions, one for receiving unknown stolen property and one for taking a motor vehicle, when he calculated Gaworski's offender score.   Gaworski claims these convictions are not comparable to Washington felonies and should not have been considered.

¶ 49 A defendant's affirmative acknowledgment that his out-of-state and/or federal convictions are properly included in his offender score satisfies the requirement that such convictions be established as comparable under the Sentencing Reform Act requirements.60  Gaworski argues that State v. Ross was incorrectly decided, considering the U.S. Supreme Court's decisions in Blakely v. Washington 61 and Apprendi v. New Jersey. 62  We disagree, and in any case are obliged to follow Ross. Gaworski acknowledged both existence and comparability below.   The judge asked Gaworski's attorney, “Is there any dispute as to the scoring?” and the attorney responded with, “There is not a dispute to the scoring, Your Honor.”  63  This exchange satisfies the affirmative acknowledgement requirement.64

Circumstantial Evidence

¶ 50 Gaworski argues in a statement of additional grounds that his conviction must be overturned because the State presented only circumstantial evidence of guilt.   But circumstantial evidence is as reliable as direct evidence. 65  The State presented sufficient evidence, both direct and circumstantial, of Gaworski's guilt.

¶ 51 We remand for vacation of one of Gaworski's two convictions for possession of a precursor chemical with intent to manufacture methamphetamine.   We also remand for imposition of concurrent enhancements.   Otherwise, we affirm Gaworski's conviction and sentence.

¶ 52 Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Report of Proceedings (RP) (July 7, 2004) at 85.

2.   State v. Vladovic, 99 Wash.2d 413, 422, 662 P.2d 853 (1983) (quoting Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980)).

3.   Id. at 420-21, 662 P.2d 853.

4.   284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

5.   State v. Freeman, 153 Wash.2d 765, 772, 108 P.3d 753 (2005).

6.   Id.;   see also State v. Leming, 133 Wash.App. 875, 886-87, 138 P.3d 1095 (2006).

7.   RCW 69.50.101.

8.   State v. Davis, 117 Wash.App. 702, 708, 72 P.3d 1134 (2003).

9.   State v. Todd, 101 Wash.App. 945, 952, 6 P.3d 86 (2000), overruled on other grounds by State v. Rangel-Reyes, 119 Wash.App. 494, 499, 81 P.3d 157 (2003).

10.   State v. Saunders, 120 Wash.App. 800, 820-21, 86 P.3d 232 (2004).

11.   See State v. Esparza, 135 Wash.App. 54, 67, 143 P.3d 612 (2006).

12.   RCW 9.94A.605 (“There has been a special allegation pleaded and proven beyond a reasonable doubt that the defendant committed the crime [of manufacturing] when a person under the age of eighteen was present or upon the premises of manufacture”) (emphasis added).

13.   RCW 9A.42.100.

14.   State v. Tvedt, 153 Wash.2d 705, 710-11, 107 P.3d 728 (2005).

15.   Id.

16.   RCW 69.50.440.

17.   See In re Pers. Restraint of Davis, 142 Wash.2d 165, 174-76, 12 P.3d 603 (2000);  State v. Adel, 136 Wash.2d 629, 634-40, 965 P.2d 1072 (1998) (discussing State v. McFadden, 63 Wash.App. 441, 820 P.2d 53 (1991) and State v. Lopez, 79 Wash.App. 755, 904 P.2d 1179 (1995)).

18.   Davis, 142 Wash.2d at 176, 12 P.3d 603.

19.   Adel, 136 Wash.2d at 638, 965 P.2d 1072 (discussing McFadden, 63 Wash.App. at 452, 820 P.2d 53).

20.   Id. at 638-39, 965 P.2d 1072 (discussing Lopez, 79 Wash.App. at 762, 904 P.2d 1179).

21.   Id. at 640, 965 P.2d 1072 (Talmadge, J., concurring).

FN22. 156 Wash.2d 475, 480-81, 128 P.3d 1234 (2006)..  FN22. 156 Wash.2d 475, 480-81, 128 P.3d 1234 (2006).

FN23.  See id. at 481, 128 P.3d 1234..  FN23.  See id. at 481, 128 P.3d 1234.

FN24. State v. Jacobs, 154 Wash.2d 596, 603, 115 P.3d 281 (2005)..  FN24. State v. Jacobs, 154 Wash.2d 596, 603, 115 P.3d 281 (2005).

FN25. State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997)..  FN25. State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997).

FN26. Id..  FN26. Id.

FN27. State v. McKenzie, 157 Wash.2d 44, 52, 134 P.3d 221 (2006)..  FN27. State v. McKenzie, 157 Wash.2d 44, 52, 134 P.3d 221 (2006).

FN28. State v. Easter, 130 Wash.2d 228, 242, 922 P.2d 1285 (1996);  State v. French, 101 Wash.App. 380, 387, 4 P.3d 857 (2000)..  FN28. State v. Easter, 130 Wash.2d 228, 242, 922 P.2d 1285 (1996);  State v. French, 101 Wash.App. 380, 387, 4 P.3d 857 (2000).

FN29. McKenzie, 157 Wash.2d at 52, 134 P.3d 221..  FN29. McKenzie, 157 Wash.2d at 52, 134 P.3d 221.

FN30. State v. Stenson, 132 Wash.2d 668, 718, 940 P.2d 1239 (1997)..  FN30. State v. Stenson, 132 Wash.2d 668, 718, 940 P.2d 1239 (1997).

FN31.  RP (July 8, 2004) at 13-14, 15, 26..  FN31.  RP (July 8, 2004) at 13-14, 15, 26.

FN32. Id. at 31-33..  FN32. Id. at 31-33.

FN33. 83 Wash.App. 209, 213, 921 P.2d 1076 (1996)..  FN33. 83 Wash.App. 209, 213, 921 P.2d 1076 (1996).

FN34. Id..  FN34. Id.

FN35. State v. Russell, 125 Wash.2d 24, 88, 882 P.2d 747 (1994)..  FN35. State v. Russell, 125 Wash.2d 24, 88, 882 P.2d 747 (1994).

FN36.  RP (July 8, 2004) at 33..  FN36.  RP (July 8, 2004) at 33.

FN37. State v. Blair, 117 Wash.2d 479, 491, 816 P.2d 718 (1991)..  FN37. State v. Blair, 117 Wash.2d 479, 491, 816 P.2d 718 (1991).

FN38. State v. Davis, 73 Wash.2d 271, 277, 438 P.2d 185 (1968)..  FN38. State v. Davis, 73 Wash.2d 271, 277, 438 P.2d 185 (1968).

FN39. Id. at 276, 438 P.2d 185 (quoting Wright v. Safeway Stores, Inc., 7 Wash.2d 341, 346, 109 P.2d 542 (1941))..  FN39. Id. at 276, 438 P.2d 185 (quoting Wright v. Safeway Stores, Inc., 7 Wash.2d 341, 346, 109 P.2d 542 (1941)).

FN40. State v. Cheatam, 150 Wash.2d 626, 652, 81 P.3d 830 (2003)..  FN40. State v. Cheatam, 150 Wash.2d 626, 652, 81 P.3d 830 (2003).

FN41.  RP (July 7, 2004) at 85..  FN41.  RP (July 7, 2004) at 85.

FN42.  RP (July 8, 2004) at 40, 42..  FN42.  RP (July 8, 2004) at 40, 42.

FN43. RAP 2.5(a)..  FN43. RAP 2.5(a).

FN44. Id. at 41..  FN44. Id. at 41.

FN45. State v. Aguilar (In re Aguilar), 77 Wash.App. 596, 602, 892 P.2d 1091 (1995)..  FN45. State v. Aguilar (In re Aguilar), 77 Wash.App. 596, 602, 892 P.2d 1091 (1995).

FN46.  Gaworski's charging information and order of judgment and sentence recite that he was convicted under RCW 69.50.401(a)(1)(ii) for possession of pseudoephedrine with intent to manufacture methamphetamine.   The correct statute is RCW 69.50.440.   The error is not prejudicial, however, because the elements of RCW 69.50.440 were described consistently throughout charging, trial, and sentencing.   Both parties agree that Gaworski was convicted of possession of pseudoephedrine with intent to manufacture methamphetamine.   On remand, the trial court should correct the judgment and sentence..  FN46.  Gaworski's charging information and order of judgment and sentence recite that he was convicted under RCW 69.50.401(a)(1)(ii) for possession of pseudoephedrine with intent to manufacture methamphetamine.   The correct statute is RCW 69.50.440.   The error is not prejudicial, however, because the elements of RCW 69.50.440 were described consistently throughout charging, trial, and sentencing.   Both parties agree that Gaworski was convicted of possession of pseudoephedrine with intent to manufacture methamphetamine.   On remand, the trial court should correct the judgment and sentence.

FN47. State v. Kiser, 87 Wash.App. 126, 129, 940 P.2d 308 (1997)..  FN47. State v. Kiser, 87 Wash.App. 126, 129, 940 P.2d 308 (1997).

FN48. Id. at 130, 940 P.2d 308..  FN48. Id. at 130, 940 P.2d 308.

FN49. State v. Whalen, 131 Wash.App. 58, 63, 126 P.3d 55 (2005)..  FN49. State v. Whalen, 131 Wash.App. 58, 63, 126 P.3d 55 (2005).

FN50. Id..  FN50. Id.

FN51. Id. at 64, 126 P.3d 55..  FN51. Id. at 64, 126 P.3d 55.

FN52. State v. Moles, 130 Wash.App. 461, 466, 123 P.3d 132 (2005)..  FN52. State v. Moles, 130 Wash.App. 461, 466, 123 P.3d 132 (2005).

FN53.  Gaworski's attorney did not raise this issue at trial, but Gaworski contends that the attorneys' failure to do so demonstrates ineffective assistance of counsel.   We need not reach this issue..  FN53.  Gaworski's attorney did not raise this issue at trial, but Gaworski contends that the attorneys' failure to do so demonstrates ineffective assistance of counsel.   We need not reach this issue.

FN54. State v. Vike, 125 Wash.2d 407, 410, 885 P.2d 824 (1994)..  FN54. State v. Vike, 125 Wash.2d 407, 410, 885 P.2d 824 (1994).

FN55. State v. Price, 103 Wash.App. 845, 855, 14 P.3d 841 (2000)..  FN55. State v. Price, 103 Wash.App. 845, 855, 14 P.3d 841 (2000).

FN56. State v. Haddock, 141 Wash.2d 103, 110, 3 P.3d 733 (2000)..  FN56. State v. Haddock, 141 Wash.2d 103, 110, 3 P.3d 733 (2000).

FN57. Vike, 125 Wash.2d at 411, 885 P.2d 824..  FN57. Vike, 125 Wash.2d at 411, 885 P.2d 824.

FN58. 125 Wash.2d 378, 403, 886 P.2d 123 (1994)..  FN58. 125 Wash.2d 378, 403, 886 P.2d 123 (1994).

FN59. 114 Wash.2d 314, 319, 788 P.2d 531 (1990)..  FN59. 114 Wash.2d 314, 319, 788 P.2d 531 (1990).

FN60. State v. Ross, 152 Wash.2d 220, 230, 95 P.3d 1225 (2004)..  FN60. State v. Ross, 152 Wash.2d 220, 230, 95 P.3d 1225 (2004).

FN61. 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)..  FN61. 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

FN62. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)..  FN62. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

FN63.  RP (Mar. 10, 2005) at 22..  FN63.  RP (Mar. 10, 2005) at 22.

FN64. RCW 9.94A.530;  Ross, 152 Wash.2d at 230, 95 P.3d 1225..  FN64. RCW 9.94A.530;  Ross, 152 Wash.2d at 230, 95 P.3d 1225.

FN65. State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980)..  FN65. State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).

ELLINGTON, J.