STATE v. BLADE (2005)

PART PUBLISHED OPINION

¶ 1 Robert L. Blade appeals his convictions for two counts of manufacturing methamphetamine, arguing that the trial court erred in (1) admitting his statements to the police, (2) refusing to sever the counts, (3) failing to give unanimity and attempt instructions, and (4) failing to instruct the jury it had to find a nexus between his possession of the weapons and the manufacturing.   Blade also contends that his counsel was ineffective and that the evidence was insufficient to convict him of count three and for the firearm enhancement on count one.   The evidence was sufficient and the instructions were proper, but the trial court erred when it used the longer deadly weapon enhancement for class A felonies in determining Blade's sentence for count three.   Accordingly, we affirm Blade's convictions, but remand for resentencing on count three.

FACTS

¶ 2 On May 11, 2002, Officer Patrick Moore and two other officers of the Vancouver Police Department learned of a possible methamphetamine lab in room 105 of the Best Western Motel in Vancouver.   The officers went to the motel to conduct a “knock and talk” with the occupant of room 105, later identified as Robert L. Blade.   II Report of Proceedings (RP) at 118-19.   Moore knocked and announced his presence several times;  he could tell someone was in the room but no one answered.   When Moore phoned room 105 from the main office, Blade answered and agreed to talk with Moore;  he said he would meet the officers outside the front door of room 105.   Moore knocked on the door, Blade exited, quickly shut the door, and locked it.

¶ 3 When Blade first opened the door, Moore smelled solvents, which he associated with methamphetamine labs.   Blade was also very nervous, sweating, and shaking.   Moore told Blade he had heard of a possible methamphetamine lab and that he was not concerned if Blade had a small amount of drugs for personal use, but he was concerned for the motel occupants' safety if Blade had an active methamphetamine lab in the room.   Blade told Moore that he had acetone, Coleman fuel, specific amounts of red phosphorous, iodine powder, pulled ephedrine, and a heating device, all commonly used in making methamphetamine.   Moore asked Blade when he had last cooked methamphetamine;  Blade said around 8:00 p.m. the day before and that the cook had yielded about four grams of methamphetamine.   Blade told Moore he got the red phosphorous from matchbooks and the iodine from a feed store.

¶ 4 Moore then asked Blade for consent to search the room.   Blade said he was not sure if he wanted to consent to the search, but after Moore said he would freeze the room and apply for a warrant, Blade agreed and signed a consent to search.   Blade gave the officers the key to the room.   As the officers entered the room, Blade told them he had a .22 caliber pistol under the mattress.   Blade remained outside the room, two or three feet from the door, next to one of the officers.   The officers found the .22 and methamphetamine ingredients where Blade had described.

¶ 5 Moore then arrested Blade for manufacturing methamphetamine and read him his Miranda¹ rights.   Blade said he understood his rights and that he was willing to talk with Moore.   Moore testified that Blade told him that he had been cooking methamphetamine for the past year, “specifically [Blade] told me he's been cooking two to three times a week for the last three months, with each-each time or each cook ․ yielding two to five grams of finished product, finished methamphetamine.”   II RP at 139.   Blade said that he did not actively deal drugs but he did give some to friends in return for gas or food money.   Blade's counsel objected to this testimony.

¶ 6 Detective John Hess of the Clark-Skamania Narcotics Task Force also responded to the scene and assessed room 105.   Hess testified that someone had recently manufactured methamphetamine in the room because the red phosphorous was wet and chunky.

¶ 7 On July 8, 2002, Officer Ray Reynolds of the Vancouver Police Department stopped Blade's car for speeding.   Sixteen-year-old D.A. was a passenger in the vehicle.   Reynolds testified that Blade was nervous and shaking and that D.A. avoided contact with him.   The vehicle reeked of a chemical odor and Reynolds noticed a gallon tin of acetone behind the front passenger seat.   When Reynolds searched the vehicle, he found a package containing matches with the striking pads removed and a ziplock baggie containing smaller baggies and pliers.   Reynolds suspected a methamphetamine lab.

¶ 8 When Hess conducted a warrant search of the vehicle on July 11, 2002, he recovered a cardboard box containing the covers of the matches, a straw, plastic spoon, and a notebook with references to the need for pH papers, a hotplate, and a knife with a blade in excess of three inches.   Hess testified that these items pointed to “[t]he preparation ․ of obtaining the red phosphorous for a red phosphorous/iodine/pseudo-ephedrine method [of methamphetamine manufacturing].”   III-A RP at 237.   Hess then described how the red phosphorous could be obtained by combining the striker pads with acetone, as had been done at the Best Western.

¶ 9 During trial, Blade's counsel did not object to testimony describing Blade's initial reluctance to consent to the May 11 search.

¶ 10 The State charged Blade with three counts of manufacturing methamphetamine.   Count one alleged school bus zone and firearm enhancements and count three alleged manufacturing while a juvenile was present and deadly weapon enhancements.   A jury convicted Blade as charged in counts one and three, answered yes to the special verdicts associated with these counts, and acquitted him on count two.   Before and during trial, Blade moved to sever counts one and three.   During closing argument, Blade's trial counsel conceded his guilt to count one.

¶ 11 The court sentenced Blade to a total confinement of 199 months based on total standard ranges of 151-173 months for count one and 105-123 months based on count three.   The court used firearm and school bus enhancements on count one.

ANALYSIS

I. Sentencing

¶ 12 Blade argues that the trial court erred when it calculated his standard range.   The crux of Blade's argument is that the sentencing court erred when it used the increased firearm and deadly weapon enhancements available when a crime is defined as a class A felony or has a statutory maximum penalty of at least 20 years.   See Former RCW 9.94A.510(3)(a), (4)(a) (2002).   We affirm the special verdicts, but remand for resentencing on count three because the trial court impermissibly used the deadly weapon enhancement for class A felonies or felonies with a 20-year maximum sentence.

¶ 13 Blade's conviction on count one carried school bus stop and firearm enhancements.   The school zone enhancement for count one allows punishment “up to twice the imprisonment otherwise authorized by [chapter 69.50 RCW].” RCW 69.50.435(a)(3).   Blade's appropriate firearm enhancement depends on the length of the maximum sentence for count one.

¶ 14 If the defendant was armed with a firearm, former RCW 9.94A.510(3)(a) (2002) added three years to his standard sentence range for class B felonies or felonies with statutory maximum sentences of 10 years.   But former RCW 9.94A.510(3)(a) added five years to the standard sentence range if the underlying felony was a class A felony or had a statutory maximum sentence of at least 20 years.   Methamphetamine manufacturing convictions are ordinarily class B felonies, punishable by up to 10 years imprisonment.  RCW 69.50.401(a)(1)(ii);  RCW 9A.20.021(1)(b).  We must decide whether RCW 69.50.435's doubling provision creates a new maximum sentence.

¶ 15 Under the definition of “statutory maximum sentence” in effect when Blade committed count one, the term meant “the maximum length of time for which an offender may be confined as punishment for a crime as prescribed in chapter 9A.20 RCW, RCW 9.92.010, the statute defining the crime, or other statute defining the maximum penalty for a crime.”   Former RCW 9.94A.030(41) (2001).   The doubling provision in RCW 69.50.435 defines a new maximum penalty for the manufacture, sale, delivery, or possession with the intent to manufacture, sell, or deliver a controlled substance if the crime is committed in certain locations, including within 1,000 feet of a school bus stop.   See RCW 69.50.435(a)(1)-(10).

¶ 16 And before the legislature statutorily defined “statutory maximum sentence,” Division Three reached the same conclusion.  State v. Barajas, 88 Wash.App. 387, 388-89, 960 P.2d 940 (1997).   Barajas was convicted of possession with intent to deliver a controlled substance within 1,000 feet of a school bus stop while armed with a deadly weapon.  Barajas, 88 Wash.App. at 388, 960 P.2d 940.   The court concluded that the school bus stop enhancement resulted in a new maximum sentence and affirmed the trial court's imposition of the mandatory five-year deadly weapon enhancement.  Barajas, 88 Wash.App. at 389, 960 P.2d 940.

¶ 17 On count three, the jury returned special verdicts that a juvenile was present during the manufacturing and that Blade was armed with a deadly weapon.

¶ 18 Under RCW 9.94A.605, if a defendant is convicted of manufacturing methamphetamine and a special allegation that “the defendant committed the crime when a person under the age of eighteen was present in or upon the premises of manufacture,” is pleaded and proven beyond a reasonable doubt, the jury shall find a special verdict as to this allegation.   Former RCW 9.94A.510(6) (2002) added an additional 24 months to the standard range “for any ranked offense involving a violation of chapter 69.50 RCW if the offense was also a violation of ․ [RCW 9.94A.605].” Former RCW 9.94A.510(4)(a) (2002) added two years to the standard range if the crime was a class A felony or if it had statutory maximum sentence of at least 20 years.   Former RCW 9.94A.510(4)(b) (2002) added one year if the crime was a class B felony or had a statutory maximum sentence of 10 years.

¶ 19 RCW 9.94A.605 does not contain a doubling provision similar to that in RCW 69.50.435, and former RCW 9.94A.510(6) provided for an increase in the defendant's standard sentence range, not for an increase in the underlying felony's maximum sentence.   Accordingly, former RCW 9.94A.510(4)(b)'s one-year enhancement, rather than former RCW 9.94A.510(4)(a)'s two-year enhancement, applies.   We remand for resentencing on count three.

¶ 20 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.

II. Statements to Police at Motel

¶ 21 Blade argues that he was in custody when he first talked with the police outside the motel room.   And because the police had not advised him of his Miranda rights, he contends that all evidence obtained as a result of his statements should have been excluded.

¶ 22 Miranda safeguards apply as soon as a suspect's freedom of movement is curtailed to the degree associated with formal arrest.  State v. Harris, 106 Wash.2d 784, 789, 725 P.2d 975 (1986) (citing Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984)).   Whether a suspect is in custody for Miranda purposes is a mixed question of law and fact. Thompson v. Keohane, 516 U.S. 99, 102, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995);  see also State v. Solomon, 114 Wash.App. 781, 788, 60 P.3d 1215 (2002), review denied, 149 Wash.2d 1025, 72 P.3d 763 (2003).   In a CrR 3.5 proceeding, the findings of fact address the Thompson factual inquiry.   Solomon, 114 Wash.App. at 789, 60 P.3d 1215.   And the CrR 3.5 legal conclusions address whether a reasonable person in the defendant's position would have believed he was not free to terminate the interrogation and leave.   Solomon, 114 Wash.App. at 789, 60 P.3d 1215.

¶ 23 Unchallenged findings are verities on appeal, as are challenged factual findings supported by substantial evidence.  State v. Broadaway, 133 Wash.2d 118, 131, 942 P.2d 363 (1997).   We review de novo the trial court's legal conclusion that is, whether a reasonable person would have believed he was not free to end the interrogation and leave.  Solomon, 114 Wash.App. at 789, 60 P.3d 1215.

¶ 24 Blade challenges only the finding that Moore telephoned his hotel room, that he answered, and that he agreed to talk to the police outside the room.   Moore testified that he phoned room 105, a man later identified as Blade answered, and that after Moore identified himself, Blade agreed to talk with him outside the motel room.   Accordingly, substantial evidence supports the only challenged finding;  the remaining findings are verities.

¶ 25 Blade testified that he believed he was in custody when he answered Moore's questions about manufacturing methamphetamine in the hotel room.

¶ 26 Freedom of movement, not the atmosphere or the psychological state of the defendant, is the determining factor in deciding whether an interview is custodial.  State v. Sargent, 111 Wash.2d 641, 649-50, 762 P.2d 1127 (1988).   Accordingly, a claim of psychological compulsion alone does not compel a finding that the defendant was in custody for Miranda purposes.  State v. Post, 118 Wash.2d 596, 607, 826 P.2d 172 (1992), amended by 118 Wash.2d 596, 837 P.2d 599 (1992).   The trial court concluded that Blade was not in custody during the first questioning because he chose the location for the talk.   In addition, Blade answered his phone and agreed to speak with police;  and the police did not tell Blade that he was under arrest or that he could not leave.   A person is in custody if a reasonable person in the same situation would believe that he was not free to leave.  Solomon, 114 Wash.App. at 789, 60 P.3d 1215.   We agree with the trial court;  a reasonable person in Blade's situation would not believe he was in custody.   Thus, the trial court did not err in admitting Blade's first statements.

III. Motion to Sever

¶ 27 Blade argues that the trial court should have severed the counts because the joint trial forced him to present inconsistent defenses and allowed the jury to consider inadmissible evidence.   Blade's argument also suggests that the jury used the strength of the evidence on count one to convict Blade on count three.

¶ 28 Joinder is inherently prejudicial.  State v. Ramirez, 46 Wash.App. 223, 226, 730 P.2d 98 (1986).   Properly joined offenses may be severed to promote a fair determination of the defendant's guilt or innocence of each offense.  CrR 4.4(b);  State v. Bythrow, 114 Wash.2d 713, 717, 790 P.2d 154 (1990).   But we will reverse the trial court's refusal to sever only for a manifest abuse of discretion.  Bythrow, 114 Wash.2d at 717, 790 P.2d 154.   Blade must demonstrate that a trial involving both counts would be so manifestly prejudicial as to outweigh the concern for judicial economy.   Bythrow, 114 Wash.2d at 718, 790 P.2d 154 (citing State v. Smith, 74 Wash.2d 744, 755, 446 P.2d 571 (1968)).   And he must point to specific prejudice.  State v. Grisby, 97 Wash.2d 493, 507, 647 P.2d 6 (1982).

¶ 29 Prejudice may result if a defendant is embarrassed in the presentation of separate defenses or if joinder invites the jury to cumulate evidence to find guilt or infer a criminal disposition.  State v. Sanders, 66 Wash.App. 878, 885, 833 P.2d 452 (1992) (citing State v. Watkins, 53 Wash.App. 264, 268, 766 P.2d 484 (1989)).   Factors which may eliminate joinder's prejudicial effect include (1) the strength of the State's evidence on each count, (2) the clarity of the defenses to each count, (3) whether the trial court properly instructs the jury to consider the evidence of each count separately, and (4) the admissibility of the evidence of one crime in the trial of the other if they had been tried separately.  Sanders, 66 Wash.App. at 885, 833 P.2d 452.   We also consider the jury's ability to compartmentalize the evidence for each count when evaluating prejudice.   See Bythrow, 114 Wash.2d at 721, 790 P.2d 154.   No single factor is preeminent;  they are assessed together in order to determine if severance is required.  State v. Warren, 55 Wash.App. 645, 655, 779 P.2d 1159 (1989) (citing Watkins, 53 Wash.App. at 272 n. 3, 766 P.2d 484).

¶ 30 Here, the evidence on count one was so strong that counsel conceded Blade's guilt in closing argument.   But the evidence offered to support count three was weaker.   This evidence included striker pads, acetone, and a notebook referring to the need for a hotplate and pH papers.

¶ 31 Although Blade's defenses to counts one and three varied-general denial and sufficiency versus third party ownership and possession, and sufficiency, respectively, they are not antagonistic because they addressed separate incidents on May 11 and July 8 and are not contradictory.   See Bythrow, 114 Wash.2d at 720, 790 P.2d 154 (mutually antagonistic defenses do not automatically require severance).

¶ 32 The court properly instructed the jury to decide each count separately and that its verdict on one count should not control its verdict on another.   Counts one and three occurred almost two months apart and in different locations.   And the jury demonstrated its ability to consider the evidence for each count separately by acquitting Blade of count two.

¶ 33 The last factor is cross-admissibility under ER 404(b). State v. Russell, 125 Wash.2d 24, 66, 882 P.2d 747 (1994).   As part of his defense to count three Blade called Victor Blecha, who testified that he owned the vehicle, notebook and matches, and used the acetone to strip his linoleum floors.   Even if the evidence for count one were inadmissible to counter this defense, the jury's ability to compartmentalize the evidence and consider each count separately, as evidenced by their acquittal on count two, prevents Blade from showing that joinder prejudiced him.   See Bythrow, 114 Wash.2d at 720, 790 P.2d 154 (lack of cross-admissibility is not, as a matter of law, a sufficient reason to sever).

IV. Evidence Regarding Uncharged, Criminal Acts

¶ 34 Blade argues that he was prejudiced by the evidence of his statements admitting a history of cooking and distributing methamphetamine;  he contends that this evidence should have been excluded under ER 404(b).

¶ 35 Moore testified that Blade told him, “he's been cooking methamphetamine for the past year and specifically he told me he's been cooking two to three times a week for the last three months, with each-each time or each cook, according to him, yielding two to five grams of finished product.”   II RP at 139.   Moore then testified that Blade told him he does not actively deal drugs but admitted giving methamphetamine to some of his friends.

¶ 36 Assuming the court erred in admitting the evidence, Blade cannot show prejudice.   We will reverse for wrongly admitted ER 404(b) evidence only if the error, within reasonable probability, materially affected the outcome of the trial.  State v. Everybodytalksabout, 145 Wash.2d 456, 468-69, 39 P.3d 294 (2002) (citing State v. Stenson, 132 Wash.2d 668, 709, 940 P.2d 1239 (1997)).   Before Blade consented to a search of his room, he told Moore that he had cooked methamphetamine the evening before and made about four grams.   In light of this admission, his admitted year-long history of making methamphetamine could not have significantly contributed to the count one conviction.   And because the jury acquitted on count two, we cannot conclude that there is a reasonable probability that the evidence at issue materially affected the jury's decision to convict on count three.

V. Evidence Regarding Exercise of Constitutional Rights

¶ 37 Blade argues that the State improperly referred to his reluctance to consent to searches of his hotel room and the vehicle he was driving-his constitutional right-and that this denied him a fair trial.

¶ 38 The State can take no action that will unnecessarily chill or penalize the assertion of a constitutional right and the State may not draw adverse inferences from the exercise of a constitutional right.  State v. Rupe, 101 Wash.2d 664, 705, 683 P.2d 571 (1984) (gun possession) (citing U.S. v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)).   A defendant's assertion of constitutionally protected rights is not evidence of guilt.  State v. Silva, 119 Wash.App. 422, 428-29, 81 P.3d 889 (2003) (citing State v. Lewis, 130 Wash.2d 700, 705, 927 P.2d 235 (1996) (pre-arrest silence not admissible as substantive evidence of guilt)).   Accordingly, the State may not invite a jury to infer that the defendant is guilty because he exercised his constitutional rights.  Silva, 119 Wash.App. at 429, 81 P.3d 889 (citing State v. Nelson, 72 Wash.2d 269, 285, 432 P.2d 857 (1967)).  “The inference always adds weight to the prosecution's case and is always, therefore, unfairly prejudicial.”  Silva, 119 Wash.App. at 429, 81 P.3d 889.

¶ 39 Again, Blade cannot show prejudice.   Assuming the State did refer to Blade's exercise of constitutional rights by showing his initial reluctance to consent to the motel room search, the evidence of count one was overwhelming, including Blade's admission and his counsel's final argument concession.   We are satisfied beyond a reasonable doubt that the reference, if any, did not contribute to Blade's conviction on count one.  State v. Easter, 130 Wash.2d 228, 242, 922 P.2d 1285 (1996).

¶ 40 And Reynolds did not refer to Blade's refusal to consent to a search of the vehicle.   At trial, Reynolds testified as follows:

Q: What, if anything, did you do with the vehicle [after arresting Blade]?

A: Well, at that point I went ahead and attempted to get permission to search the vehicle from Mr. Blade.

Q: After that what did you do with it?

A: And after that I went ahead and spoke with the owner, did not get consent.

III-B RP at 376.

¶ 41 Because Reynolds referred only to Blecha's refusal to consent, Blade's claim that the State impermissibly referred to his exercise of his constitutional rights lacks merit.

VI. Unanimity

¶ 42 Blade argues that his conviction on count one should be reversed because the court failed to properly instruct the jury on unanimity.

¶ 43 A defendant may be convicted only if a unanimous jury concludes he committed the criminal act charged in the information.  State v. Petrich, 101 Wash.2d 566, 569, 683 P.2d 173 (1984) (citing State v. Stephens, 93 Wash.2d 186, 190, 607 P.2d 304 (1980)).   If the State presents evidence of multiple acts that could form the basis of one charged count, the State must tell the jury which act to rely on or the court must instruct the jury to agree on a specific act.  State v. Crane, 116 Wash.2d 315, 325, 804 P.2d 10 (1991) (citing State v. Kitchen, 110 Wash.2d 403, 409, 756 P.2d 105 (1988)).   If neither of these options occur, the error is harmless only if any rational trier of fact would have found each incident established beyond a reasonable doubt.  Crane, 116 Wash.2d at 325, 804 P.2d 10.

¶ 44 But the Petrich unanimity rule does not apply in cases involving a continuing course of criminal conduct.  Crane, 116 Wash.2d at 330, 804 P.2d 10.   In these cases, the jury must only be unanimous that the conduct occurred.  Crane, 116 Wash.2d at 330, 804 P.2d 10.   The defendant's actions must be evaluated in a commonsense manner to determine if it forms one continuing offense.  State v. Marko, 107 Wash.App. 215, 220, 27 P.3d 228 (2001) (citing Petrich, 101 Wash.2d at 571, 683 P.2d 173).   Factors in this determination include whether the acts occurred at separate times or places.   Marko, 107 Wash.App. at 220-21, 27 P.3d 228.

¶ 45 Here, while the State did introduce evidence that Blade made methamphetamine on May 10 and that police found a methamphetamine lab in his motel room on May 11, under a commonsense approach, these incidents are a continuing course of conduct and Blade is not entitled to a unanimity instruction.   See State v. Simonson, 91 Wash.App. 874, 883-84, 960 P.2d 955 (1998) (no unanimity instruction required where evidence showed defendant and girlfriend committed a single continuous methamphetamine manufacturing offense during a six-week period).

VII. Special Verdict Instructions

¶ 46 Blade argues that he should be resentenced because the special verdict instructions did not adequately advise the jury that the State must prove a nexus between him, the crimes, and the weapons.   Blade also challenges the sufficiency of the evidence to support the special verdict for count one.   The State responds that the invited error doctrine precludes Blade's nexus challenge and that sufficient evidence supports the count one special verdict.

¶ 47 Invited manifest constitutional error cannot be raised for the first time on appeal, but failing to except to an instruction does not constitute invited error.  State v. Corn, 95 Wash.App. 41, 56, 975 P.2d 520 (1999) (citing State v. McLoyd, 87 Wash.App. 66, 70, 939 P.2d 1255 (1997)).   An error is manifest when it has practical and identifiable consequences at trial.   State v. Stein, 144 Wash.2d 236, 240, 27 P.3d 184 (2001) (citing State v. Green, 80 Wash.App. 692, 694, 906 P.2d 990 (1995)).   Accordingly, Blade can still raise his nexus challenge for the first time on appeal because it directly affected his sentence.

¶ 48 We review allegedly erroneous jury instructions de novo, asking whether they allow the parties to argue their case theories, do not mislead the jury, and properly inform the jury of the applicable law.  State v. Willis, ---Wash.App. ----, 103 P.3d 1213, 1215 (2005) (citing Blaney v. Int'l Assoc. of Machinists & Aerospace Workers, Dist. No. 160, 151 Wash.2d 203, 210, 87 P.3d 757 (2004)).   The court's instruction informed the jury that “armed with” meant that the firearm or other deadly weapon “was readily available and easily accessible.”   Clerk's Papers (CP) at 88.

¶ 49 The State must show that a defendant is “armed” for purposes of a deadly weapon enhancement beyond a reasonable doubt.  State v. Tongate, 93 Wash.2d 751, 753-54, 613 P.2d 121 (1980).   A person is “armed” if, at the time he commits the crime, a weapon is readily available or easily accessible for use, for either offensive or defensive purposes.  State v. Valdobinos, 122 Wash.2d 270, 282, 858 P.2d 199 (1993) (citing State v. Sabala, 44 Wash.App. 444, 723 P.2d 5 (1986)).   But the mere presence of a deadly weapon at a crime scene is insufficient to show that the defendant is armed.   See, e.g., State v. Johnson, 94 Wash.App. 882, 886-87, 974 P.2d 855 (1999);  State v. Mills, 80 Wash.App. 231, 233, 907 P.2d 316 (1995).   There must be a nexus or relationship between the defendant, the weapon, and the crime.  Willis, 103 P.3d at 1216 (citing State v. Schelin, 147 Wash.2d 562, 563-64, 55 P.3d 632 (2002)).   But contrary to our recent holding in State v. Holt, 119 Wash.App. 712, 82 P.3d 688 (2004), language expressly instructing the jury that it must find this nexus requirement is not necessary.  Willis, 103 P.3d at 1217.

¶ 50 In Willis, the trial court instructed the jury that “armed” meant “[a firearm was] readily available for offensive or defensive purposes.”  Willis, 103 P.3d at 1215.   Our Supreme Court held this language adequately instructs the jury that it must find a relationship between the defendant, the weapon, and the crime.  Willis, 103 P.3d at 1217.   The Willis decision is fatal to Blade's argument.

¶ 51 Blade also challenges the sufficiency of the evidence for the firearm enhancement on count one.  “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).   We draw these inferences in favor of the State and most strongly against the defendant.   Schelin, 147 Wash.2d at 573, 55 P.3d 632.   Circumstantial evidence and direct evidence are equally reliable.  State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).

¶ 52 In Schelin, the plurality held that sufficient evidence supported the jury's special verdict finding the defendant armed with a deadly weapon.   There, police found a loaded revolver in a holster hanging from a nail in a basement wall, about six to ten feet from where the defendant was standing when the police entered his house.  Schelin, 147 Wash.2d at 564, 574-75, 55 P.3d 632.   The defendant also testified that he could remove the gun from the holster quickly if need be.  Schelin, 147 Wash.2d at 574, 55 P.3d 632.   Other cases have reached different results in similar circumstances.   See, e.g., Valdobinos, 122 Wash.2d at 281, 858 P.2d 199 (insufficient evidence where State proved only that it found an unloaded .22 rifle under a bed in defendant's home);  State v. Call, 75 Wash.App. 866, 880 P.2d 571 (1994) (insufficient evidence where police discovered illegal drugs and found two firearms in a bedroom dresser drawer and another in a toolbox).

¶ 53 But this case is more like Schelin.   The jury could find that Blade was close enough to the pistol while manufacturing methamphetamine in the hotel room and that it was an easily accessible and readily available weapon.   Moreover, the jury could infer a nexus between Blade, the weapon, and the crime because the pistol could be used to protect the methamphetamine manufacturing process.   See Schelin, 147 Wash.2d at 574, 55 P.3d 632 (jury could infer defendant was using weapon to protect marijuana grow operation).

¶ 54 In Valdobinos, the only evidence supporting the firearm allegation was the recovery of the weapon under a bed.  Valdobinos, 122 Wash.2d at 281, 858 P.2d 199.   And in Call, the only evidence was the police officer's testimony that he had found two guns in a dresser drawer in the bedroom and one in a toolbox at the foot of the bed.   Because Call had gone to the bedroom and returned unarmed, the court concluded there was insufficient evidence to find that the guns were easily accessible and readily available.   See Call, 75 Wash.App. at 869, 880 P.2d 571.   Here, the weapon was found in a hotel room, not a separate bedroom in a home.   Sufficient evidence exists to support the special verdict on count one.

VIII. Failure to Give Attempt Instruction

¶ 55 Blade argues that he was entitled to an instruction on attempted manufacture of a controlled substance.   He relies in part on RCW 10.61.003, which provides, “[u]pon an indictment or information for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged ․ and guilty of ․ an attempt to commit the offense” (emphasis added).   But the manufacture of controlled substance charges the State filed against Blade do not have different degrees.   See RCW 69.50.401(a)(1)(ii).

¶ 56 The rest of Blade's argument appears to treat the issue as a failure to give a lesser included offense instruction.   To be entitled to an instruction on a lesser included offense, two conditions must be met:  (1) each of the elements of lesser offense must be a necessary element of the crime charged and (2) the evidence must support an inference that the lesser crime was committed instead of the charged crime.  State v. Keena, 121 Wash.App. 143, 87 P.3d 1197, 1200 (2004) (citing State v. Fernandez-Medina, 141 Wash.2d 448, 456, 6 P.3d 1150 (2000)).

¶ 57 The trial court declined to give Blade's attempt instruction because:

[T]he statutory definition of “manufacture of a controlled substance” includes the concept of ․ preparation ․ so it would appear that the attempt actually would be more limited than what is defined as the substantive crime, and the courts have defined that there is no attempted offense if the attempt is included within the definition of the crime itself.

IV RP at 498.

¶ 58 RCW 69.50.101(p) defines “manufacture” as:

[T]he 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.

¶ 59 Blade contends that he was entitled to argue that he had not yet begun preparation and that his conduct fell short of the completed crime of manufacture.

¶ 60 “When an attempt to commit a specified act is included within a crime definition, then the attempt constitutes the crime rather than the general crime of attempt as found in RCW 9A.28.020.”  State v. Hall, 104 Wash.App. 56, 65, 14 P.3d 884 (2000).   But RCW 69.50.401(a) does not explicitly mention “attempt” within its enumeration of prohibited acts.   And though RCW 69.50.101(p) defines “manufacture” broadly, it does not explicitly mention “attempt.”

¶ 61 Nonetheless, the court did not err in failing to give an attempt instruction.   As to count one, Blade admitted making methamphetamine on May 10 and police discovered a methamphetamine lab in his motel room the next day, complete with pulled ephedrine, powdered iodine, and other items needed for methamphetamine manufacture.   As to count three, police recovered acetone, a package containing matches with the striker pads removed, a ziplock baggie containing smaller baggies, pliers, a cardboard box containing the covers of the matches, and a notebook with references to the need for pH papers and a hotplate.   Because Blade's actions fall within the broad definition of completed “manufacture” in RCW 69.50.101(p), the evidence does not give rise to an inference that Blade attempted to manufacture methamphetamine without completing the manufacture, Blade is not entitled to an attempt instruction.   Keena, 87 P.3d at 1200.

IX. Sufficiency of the Evidence on Count Three

¶ 62 Blade argues that the evidence was insufficient to support his conviction for count three.   We disagree.

¶ 63 Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.   Salinas, 119 Wash.2d at 201, 829 P.2d 1068.  “A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.”  Salinas, 119 Wash.2d at 201, 829 P.2d 1068.   Circumstantial evidence and direct evidence are equally reliable.   Delmarter, 94 Wash.2d at 638, 618 P.2d 99.

¶ 64 Under RCW 69.50.101(p), “manufacture” includes the direct or indirect “production, preparation, propagation, compounding, conversion, or processing of a controlled substance.”   Methamphetamine is a schedule II controlled substance.  RCW 69.50.206(d)(2).   Accordingly, we must decide if the evidence, viewed in the light most favorable to the State, permitted the jury to find that Blade manufactured methamphetamine.

¶ 65 When Reynolds stopped Blade on July 8, the vehicle reeked of a chemical odor and Reynolds saw a gallon container of acetone.   When Reynolds searched the vehicle, he found a package containing matches with the striker pads removed and a ziplock baggie containing smaller baggies and pliers.   Reynolds believed he had found a methamphetamine lab.   In addition to these items, Hess recovered a cardboard box containing the covers of the matches, a straw, plastic spoon, and a notebook with references to the need for pH papers and a hotplate, and a knife with a blade in excess of three inches.   No finished methamphetamine or precursors were found in the vehicle.

¶ 66 But the absence of the finished product does not mean the evidence is insufficient for a methamphetamine manufacturing conviction.   See, e.g., State v. Davis, 117 Wash.App. 702, 708, 72 P.3d 1134 (2003) (under chapter 69.50 RCW, it is possible to manufacture a drug without possessing it;  methamphetamine can be made from ingredients that are not controlled substances), review denied, 151 Wash.2d 1007, 87 P.3d 1185 (2004);  State v. Todd, 101 Wash.App. 945, 948-49, 952, 6 P.3d 86 (2000) (fingerprints on flask containing red phosphorous, funnel containing manufacturing by-product, and two jars, one of which contained precursor and unfinished liquid methamphetamine sufficient to support defendant's conviction), overruled on other grounds by State v. Rangel-Reyes, 119 Wash.App. 494, 499, 81 P.3d 157 (2003);  see also State v. Hepton, 113 Wash.App. 673, 681-83, 54 P.3d 233 (2002), review denied, 149 Wash.2d 1018, 72 P.3d 762 (2003);  State v. Zunker, 112 Wash.App. 130, 138-39, 48 P.3d 344 (2002), review denied, 148 Wash.2d 1012, 62 P.3d 890 (2003);  State v. McPherson, 111 Wash.App. 747, 759, 46 P.3d 284 (2002) (affirming methamphetamine manufacturing convictions where manufacturing process incomplete).

¶ 67 We recently concluded that “if the defendant [has] a combination of items that generally [have] no purpose other than the manufacture of methamphetamine, the evidence is sufficient to support reasonable inferences of ‘preparation’ and ‘processing,’ and thus of manufacture, even if the evidence does not show that the defendant had the completed drug.”  Keena, 87 P.3d at 1200.

¶ 68 In Hess's opinion, the basis for count three was the evidence of the “[t]he preparation ․ of obtaining the red phosphorous for a red phosphorous/iodine/pseudo-ephedrine method.”   III-A RP at 237.   Manufacturing methamphetamine by this method involves the following general steps:  (1) extracting pseudoephedrine from cold tablets, (2) combining the pseudoephedrine with red phosphorous, obtained by scraping it off the acetone soaked matchbook striker pads, and iodine, cooking the compound for a number of hours, filtering it, adding lye to decrease acidity, adding an organic solvent which causes the methamphetamine to separate so the rest of the liquid can be drained off, and (3) crystallizing the methamphetamine by combining the liquid with hydrochloride gas.

¶ 69 Here, with all reasonable inferences drawn in the State's favor, Blade had begun the process of obtaining red phosphorous by removing striker pads and the jury could further infer from the presence of acetone and the note referring to the need for a hotplate and pH papers that Blade had prepared to process methamphetamine.   We conclude that after drawing these inferences in the State's favor, the evidence is sufficient to support a conviction for the completed crime of manufacture.   Accordingly, we affirm Blade's conviction on this count.

X. Ineffective Assistance of Counsel

¶ 70 Blade claims his counsel was ineffective for failing to:  (1) object to evidence of his uncharged conduct or history of manufacturing and distributing methamphetamine, (2) object to evidence of the refusals to consent to searches of the hotel room and vehicle, (3) except to the trial court's refusal to give a unanimity instruction, and (4) except to the erroneous special verdict instruction.

¶ 71 To show ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient;  and (2) the deficient performance prejudiced him.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987).   Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness.  Stenson, 132 Wash.2d at 705, 940 P.2d 1239.   Prejudice occurs if, but for the deficient performance, there is a reasonable probability that the outcome would have differed.  In re Pers. Restraint of Pirtle, 136 Wash.2d 467, 487, 965 P.2d 593 (1998).   There is great judicial deference to counsel's performance and the analysis begins with a strong presumption that counsel was effective.  Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052;  State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995) (citing State v. Brett, 126 Wash.2d 136, 198, 892 P.2d 29 (1995)).

¶ 72 A defendant claiming ineffective assistance based on counsel's failure to challenge the admission of evidence, must show (1) an absence of legitimate strategic or tactical reasons supporting the challenged conduct;  (2) that an objection to the evidence would likely have been sustained;  and (3) that the result of the trial would have been different had the evidence not been admitted.  State v. Saunders, 91 Wash.App. 575, 578, 958 P.2d 364 (1998).

¶ 73 Blade's counsel could have made an ER 404(b) objection to the testimony on his uncharged methamphetamine manufacture and distribution, but the decision not to do so may also have been a tactical decision to avoid further discussion of the subject.   And as we discussed above, it is unlikely that that the jury's verdict on count one would have been different had the evidence been excluded.

¶ 74 As also discussed above, if the State did impermissibly refer to Blade's exercise of his constitutional right to refuse consent to search the hotel room, any error was harmless beyond a reasonable doubt in light of the overwhelming evidence of his guilt.   And the State referred only to Blecha's refusal to consent to a search of the vehicle;  not Blade's.   Nor was Blade entitled to a unanimity instruction.   Blade's ineffective assistance of counsel claim fails because he cannot show prejudice.

¶ 75 We affirm Blade's convictions, his firearm and deadly weapon enhancements, and his sentence for count one.   But we vacate Blade's sentence for count three because the trial court used the wrong deadly weapon enhancement.   We remand count three for resentencing using the one-year deadly weapon enhancement in former RCW 9.94A.510(4)(b).

FOOTNOTES

1.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

ARMSTRONG, J.