 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                    No. 76961-8-I
                        Respondent,
                                                    DIVISION ONE
               V.
                                                    UNPUBLISHED OPINION
 JASON MICHAEL SMITH,

                        Appellant.                  FILED: December 23, 2019


       APPELWIcK, C.J.    —   Smith appeals his convictions for unlawful possession

of a firearm, possession of a stolen firearm, and possession of a controlled

substance with intent to manufacture or deliver. He argues that the to convict

instructions required the State to prove beyond a reasonable doubt that he knew

the make, caliber, and serial number of each firearm. He argues that the State

failed to prove beyond a reasonable doubt that (1) he possessed the firearm found

in a locked safe and (2) the firearm was easily accessible and readily available.

He asserts that the trial court violated his right to jury unanimity as to the firearm

enhancement.        He further asserts that he received ineffective assistance of

counsel due to his attorney’s failure to challenge his offender score. He contends

that the court erred in concluding that it had no discretion to impose concurrent

sentences for the firearm-related convictions. Last, he argues that certain legal

financial obligations should be stricken. We affirm Smith’s convictions, but remand
No. 76961-8-1/2


to the trial court to strike the criminal filing fee, DNA collection fee, and portion of

the judgment and sentence requiring interest accrual on nonrestitution LFOs.

                                           FACTS

       On March 24, 2015, Officer Michael Young and Detective Jonathan Elton

executed a search warrant on a home in Marysville. They believed the home to

be the residence of Jason Smith and his girlfriend, Necole Beliveau. The search

warrant covered firearms and narcotics. Smith and Beliveau were home when

Young and Elton arrived.          Young arrested them both, and worked with other

officers to clear the house before conducting the search.

       After escorting Smith outside, Young asked him if there were any guns in

the bedroom. Smith said that there were. When Young asked Smith what type of

guns they were and where they were, Smith shouted to Beliveau, “[H]ey Necole,

what kind of gun    --   what kind of gun is that, a .380?” Beliveau responded, “[Y]es,

it’s a .380.” Smith then told Young that in the bedroom there was “a .380 and a

.45” caliber gun.

       Smith also told Young that the guns belonged to Beliveau, who had a

concealed weapons permit. Young responded, “Jason, you are not allowed to be

around guns, right?” Smith agreed. He told Young that he was not sure where the

guns were, but that one of them “might be in the safe.” He said that the safe

belonged to his ex-girlfriend, Jennifer Marshall, and that he did not have the

combination for it. He also stated that there was a second, unlocked safe inside

the house.




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No. 76961-8-1/3


          Officer Chris Farley assisted Young with the search. During the search,

Young entered the bedroom at the bottom of the stairs where Smith and Beliveau

had come from. Under a pillow in the center of the bed, he found a .45 caliber

Heckler & Koch (H&K) pistol, serial number 29015225. The pistol was loaded, but

did not have a round in the chamber.

          Under some hanging clothes, next to what Young believed was Beliveau’s

side of the bed, Farley found a locked safe.1 Smith and Beliveau denied the safe

was theirs, and stated that they did not have access to it. After prying open the

safe, Farley found a pink handled .380 caliber Bersa pistol, serial number 481547,

inside, along with some holsters and magazines for the H&K pistol. The pistol was

loaded, but did not have a round in the chamber.

       In addition to the firearms, Young found what appeared to be a

methamphetamine bong, a digital scale with white crystal residue on it, and other

drug paraphernalia inside the bedroom.          He believed that the residue was

meth amphetamine.

       Later that day, after Smith was transported to the Marysville jail, he asked

to speak with Elton. Smith told Elton that he knew of a large number of stolen

firearms located in a storage unit between Marysville and Smokey Point. He did

not provide Elton with the name of the storage unit or the person who rented it, but

said that he had the key to the unit at his house. Young asked Beliveau about the




      1 Young believed that side of the bed was Beliveau’s because he found her
purse there.

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No. 76961-8-1/4


firearms, and she ended up directing him to a unit at a Public Storage facility in

Arlington.

       Ian Christensen, the manager of the Public Storage, testified that he

transferred Smith from a smaller storage unit to the storage unit at issue. Smith

rented the unit for about six months. Christensen also testified that on March 23,

2015, the day before Smith’s arrest, Smith came in to the facility to convey the unit

to his friend, Jennifer Cole. Cole did not request a new code to the unit.

       About two hours after speaking with Smith, Elton obtained a warrant to

search the unit. He opened the unit with a key from Smith’s house. He found six

firearms inside the unit: (1) a Hi-Point rifle, serial number H21588, (2) a Norinco

Samozariadnyis Karabina Simonova (SKS) rifle, serial number 0496, (3) a Daewoo

9 mm handgun, serial number 16655, (4) a Remington 597 .22 caliber rifle, serial

number 2628650, (5) a Mossberg shotgun, serial number AM058273, and (6) a

Remington 870 shotgun, serial number RS4560A. Elton was unable to obtain any

fingerprint results from the firearms.

       The State charged Smith with eight counts of unlawful possession of a

firearm in the first degree, two counts of possession of a stolen firearm, and one

count of possession of a controlled substance with intent to manufacture or deliver.

The possession of a controlled substance charge included a firearm enhancement.

       At trial, the court instructed the jury that for each unlawful possession of a

firearm count, it had to find that Smith “knowingly had a firearm, to wit,” and

provided the specific make, caliber, and serial number of each firearm.          For

example, the “to convict” instruction for count 1 stated, “[Tjhe defendant knowingly


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No. 76961-8-1/5


had a firearm, to wit: H/K Semi-Automatic .45 Caliber Pistol, serial number 29-

015225, in his possession or control.” For the firearm allegation, the court did not

instruct the jury that it had to unanimously agree as to which firearm it was relying

on.

       The jury found Smith guilty of all eight counts of unlawful possession of a

firearm. It found him guilty of one count of possession of a stolen firearm, but not

guilty on the other count. And, it found him guilty of possession of a controlled

substance with intent to manufacture or deliver. It also found that he was armed

with a firearm at the time of the commission of the crime.

       At sentencing, the State argued that RCW 9.94A.589(1)(c) required the trial

court to impose consecutive sentences for all eight unlawful possession of a

firearm convictions and the possession of a stolen firearm conviction. The trial

court agreed to adopt the State’s sentencing recommendation.          It imposed 87

months of confinement for each unlawful possession of a firearm conviction, 72

months of confinement for the possession of a stolen firearm conviction, and 72

months of confinement for the firearm enhancement.             It stated that these

sentences would run consecutively. Last, it imposed 120 months of confinement

for the possession of a controlled substance conviction. It stated that this sentence

would run concurrently with the others.

       Smith received a total sentence of 70 years of confinement. The trial court

imposed a $200 criminal filing fee, a $100 biological sample fee, and a $500 victim

assessment.    His judgment and sentence provided, “The financial obligations




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No. 76961-8-1/6


imposed in this judgment shall bear interest from the date of the judgment until

payment in full, at the rate applicable to civil judgments.”

       Smith appeals.

                                    DISCUSSION

       Smith makes six arguments. First, he argues that the to convict instructions

required the State to prove beyond a reasonable doubt that he knew the make,

caliber, and serial number of each firearm. Second, he argues that the State failed

to prove beyond a reasonable doubt that (1) he had dominion and control over the

firearm in the locked safe, and (2) the firearm was easily accessible and readily

available. Third, he argues that the trial court violated his right to jury unanimity,

because it failed to instruct the jury that it had to unanimously agree on a specific

firearm for the firearm enhancement.          Fourth, he argues that he received

ineffective assistance of counsel due to his attorney’s failure to challenge his

offender score. Fifth, he argues that the trial court erred in concluding that it lacked

discretion to impose concurrent sentences.           And sixth, he challenges the

imposition of certain legal financial obligations.

  I.   Sufficiency of Evidence

       Smith argues that the to convict instructions required the State to prove

beyond a reasonable doubt that he knew the make, caliber, and serial number of

each firearm. He contends that the State failed to do so. He also argues that the

State failed to prove beyond a reasonable doubt that (1) he had dominion and

control over the firearm in the locked safe, and (2) the firearm was easily accessible

and readily available.


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No. 76961-8-1/7


       The sufficiency of the evidence is a question of constitutional law that we

review de novo.     State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016).

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. State v. Salinas, 119 Wn.2d 192, 201,

829 P.2d 1068 (1992). “A claim of insufficiency admits the truth of the State’s

evidence and all inferences that reasonably can be drawn therefrom.”                 ki.

Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94

Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of

conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence. See State v. Johnston, 156 Wn.2d 355, 365-66, 127 P.3d 707 (2006).

   A. Possession

       Smith argues that, under the law of the case doctrine, the State was

required to prove that he knew the particular make, caliber, and serial number of

each firearm he possessed, and that it failed to do so. The to convict instructions

for the eight unlawful possession of a firearm charges required the State to prove

that Smith ‘knowingly had a firearm, to wit [make, caliber, and serial number of

each firearm].” Knowledge of a description of the firearm is not an element of

unlawful possession of a firearm in the first degree. ~ RCW 9.41 .040(1 )(a).

       Under the law of the case doctrine, jury instructions not objected to become

the law of the case. State v. Hickman, 135 Wn.2d 97, 101-02, 954 P.2d 900

(1998). “In criminal cases, the State assumes the burden of proving otherwise

unnecessary elements of the offense when such added elements are included


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No. 76961-8-1/8


without objection in the ‘to convict’ instruction.” ~ at 102. Because the State did

not object to the instructions, Smith argues that it assumed the burden of proving

that he knew the particular make, caliber, and serial number of each firearm. The

State agrees that, when the trial court included the description of each firearm in

the to convict instruction, it took on the added burden of proving that Smith had

possession or control of that specifically described firearm.

       1. Firearms in Bedroom

       At trial, the State introduced into evidence the two weapons found in Smith’s

bedroom: (1) a .45 caliber H&K pistol, serial number 29015225, and (2) a pink

handled .380 caliber Bersa pistol, serial number 481547.

       Before police found the firearms, Smith told Young that there were guns

inside the house. He specifically told Young that there was “a .380 and a .45.”

Young found the .45 caliber H&K pistol under a pillow in the center of Smith’s bed.

Farley found the .380 caliber Bersa pistol inside a locked safe in the bedroom.

       Smith contends that the State failed to prove beyond a reasonable doubt

that he had dominion and control over the Bersa pistol found in the locked safe.

He argues that, although he had dominion and control over the premises where

the firearm was found, there “was not sufficient [evidence] to establish his

constructive possession of the firearm.”

       For purposes of constructive possession, the person’s control need not be

exclusive, but the State must show more than mere proximity. State v. Raleigh,

157 Wn. App. 728, 737, 238 P.3d 1211 (2010). When determining whether a

person has dominion and control over an item, this court examines the totality of


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No. 76961-8-1/9


the circumstances. State v. Summers, 107 Wn. App. 373, 384, 28 P.3d 780, 43

P.3d 526 (2001). Factors indicating dominion and control include whether the

person has the ability to reduce the object to actual possession, and physical

proximity to the object. State v. Chouinard, 169 Wn. App. 895, 899, 282 P.2d 117

(2012). Knowledge of the item’s presence alone is insufficient. k1.

       Before the officers found the firearms in Smith’s house, Smith stated that

he was not sure where the guns were, but that one of them “might be in the safe.”

He said that the safe belonged to his ex-girlfriend. Farley found the locked safe in

Smith’s bedroom. Smith and Beliveau denied the safe was theirs, and stated that

they did not have access to it. As a result, Farley had to force the safe open.

Inside the safe, he found the .380 caliber Bersa pistol, along with some holsters

and magazines for the .45 caliber H&K pistol.

       Smith argues that this evidence is not sufficient to establish constructive

possession because the “safe belonged to [his] ex-girifriend and he did not know

the combination to the keypad lock.” He points out that “[t]he officers had to force

the safe open with a pry bar.” He also states that Beliveau was borrowing the

Bersa pistol from someone, and thinking about buying it. And, he notes that

“[t]here was no evidence that [he] ever handled the firearm.”

      Viewing the evidence in the light most favorable to the State, a reasonable

jury could find that Smith had constructive possession of the .380 caliber Bersa

pistol in the locked safe. Specifically, a jury could infer that because Smith told

Young that there was “a .380” in the bedroom, the safe was in the bedroom, and

the safe also contained holsters and magazines for the H&K pistol in the bed, Smith


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No. 76961-8-1/10


had dominion and control over the firearm. Although Smith denied having access

to the safe, this court defers to the trier of fact on issues of conflicting testimony,

credibility of witnesses, and the persuasiveness of the evidence. See Johnston,

156 Wn.2d 355 at 365-66. The jury was free to reject Smith’s denial.

       The evidence is sufficient to allow a jury to conclude that Smith knowingly

possessed both the H&K and Bersa pistols found in the bedroom.

       2. Firearms in Storage Unit

       The State also introduced into evidence the six firearms found in the storage

unit: (1) a Hi-Point rifle, serial number H21588, (2) a Norinco SKS rifle, serial

number 0496, (3) a Daewoo 9mm handgun, serial number 16655, (4) a Remington

.22 caliber rifle, serial number 2628650, (5) a Mossberg shotgun, serial number

AM058273, and (6) a Remington 870 shotgun, serial number RS4560A.

       Before police found the firearms, Smith told Elton that he knew of a large

number of stolen firearms located in a storage unit between Marysville and

Smokey Point. He said that he had a key to the unit at his house. Elton located

the unit in Arlington, used a key from Smith’s house to open it, and found the six

firearms inside. Christensen, the manager at the storage facility, testified that he

had transferred Smith from a smaller storage unit to the unit at issue. He also

testified that on March 23, 2015, the day before Smith’s arrest, Smith came in to

the facility to convey the unit to his friend, Cole. Cole did not request a new code

to the unit. Thus, Smith had both key and code access to the unit, even after

conveying the unity to Cole.




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No. 76961-8-I/il


       Viewing this evidence in a light most favorable to the State, a reasonable

jury could find that Smith knowingly possessed the six firearms found in the storage

unit. Smith told Elton about the storage unit with stolen firearms. The key to the

unit was at his house, he conveyed the unit to Cole the day before, and the code

to the unit had not been changed.

       The evidence is sufficient to allow a jury to conclude that Smith knowingly

possessed each of the specifically described firearms found in the storage unit.

       3. Specific Weapons Identified

       Although the State agrees that it took on the added burden of proving that

Smith possessed each specifically described firearm, it argues that it was not

required to prove that he knew the make, caliber, and serial number of each

firearm. It states that, at best, Smith’s argument “points out an ambiguity in the ‘to

convict’ instruction.” The State contends that “the most natural reading of the

elements instruction required the State to prove only that the defendant knowingly

possessed or controlled a firearm.”

       To support that the State had to prove that he knew each firearm’s make,

caliber, and serial number, Smith relies on State v. Johnson, 188 Wn.2d 742, 399

P.3d 507 (2017), and State v. Sinrud, 200 Wn. App. 643, 403 P.3d 96 (2017).

Neither of these cases involve jury instructions with the phrase “to wit” placed

before a description. Thus, they are not instructive.

       We reject Smith’s argument that the State had to prove that he knew each

firearm’s make, caliber, and serial number. As established above, the State met

its burden of proving beyond a reasonable doubt that Smith knowingly possessed


                                             11
No. 76961-8-1/12


each specifically described firearm.    The State was able to determine each

firearm’s make, caliber, and serial number by possessing the firearms and looking

at that information.   If Smith had constructive possession of each specifically

described firearm, then he necessarily had constructive knowledge of that

information.   It does not matter whether he could recite this information from

memory. The to convict instruction did not create the added burden of proving that

Smith actually knew each firearm’s make, caliber, and serial number.

   B. Armed for Purposes of Firearm Enhancement

       The State relied on both the H&K pistol and the Bersa pistol found in the

locked safe in arguing for the firearm enhancement. Smith does not contest that

the H&K pistol was easily accessible and readily available. But, he argues that the

State failed to prove beyond a reasonable doubt that the Bersa pistol was easily

accessible and readily available. As a result, he contends that the State failed to

prove that he was armed for purposes of the firearm enhancement.

      Whether a person is armed is a mixed question of law and fact. State v.

Schelin, 147 Wn.2d 562, 565-66, 55 P.3d 632 (2002). When the court determines

whether the facts are sufficient as a matter of law to prove that the defendant was

armed, it is a question of law reviewed de novo. ki. at 566.

      A person is armed for the purposes of a sentencing enhancement if the

weapon is easily accessible and readily available for offensive or defensive

purposes during the time of the crime. State v. Brown, 162 Wn.2d 422, 431, 173

P.3d 245 (2007); Statev. O’Neal, 159 Wn.2d 500, 503-04, 150 P.3d 1121 (2007).

But, a person is not armed simply because he or she owns or possesses a weapon.


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No. 76961-8-1/13


State v. Eckenrode, 159 Wn.2d 488, 493, 150 P.3d 1116 (2007). Instead, there

must be a nexus between the defendant, the weapon, and the crime.              ki.   In

examining this nexus, courts look at the nature of the crime, the type of weapon,

and the circumstances under which it is found, such was whether it was out in the

open, in a locked container, or in a closet. State v. Aciue-Masters, 138 Wn. App.

86, 104, 156 P.3d 265 (2007).

       Smith relies in part on State v. Valdobinos, 122 Wn.2d 270, 858 P.2d 199

(1993). There, police found a black bag containing $1,875 and 846 grams of

cocaine, as well as an unloaded rifle, under a bed in Valdobinos’s mobile home.

ki. at 274, 281. The State Supreme Court held that “evidence that an unloaded

rifle was found under the bed in the bedroom, without more, is insufficient to qualify

Valdobinos as ‘armed’ in the sense of having a weapon accessible and readily

available for offensive or defensive purposes.” Id. at 282. Thus, it struck the

deadly weapon enhancement from his sentence for possession of a controlled

substance with intent to deliver. ki.

       The State compares this case to State v. Neff, 163 Wn.2d 453, 181 P.3d

819 (2008). There, police found two loaded pistols in a safe in Neffs garage. Id.

at 464. The safe also contained four bags of marijuana.          Neff was not in the

garage at the time of his arrest, but he was holding keys to the garage. j4. at 456-

57, 464. Police also found a third pistol hanging from a tool belt in the garage’s

rafters. ki. at 464. And, they found two security cameras and a monitor in the

garage on which to view live feeds. ki.




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No. 76961-8-1/14


         Neff argued that because there was no evidence or finding that he was in

the garage with the guns when police arrived, he could not have been armed. ki.

Although it was unclear from the record whether Neff could easily reach the gun in

the rafters, the State Supreme Court construed that fact in the State’s favor. ki. It

held that the above facts, together with the inferences favoring the State, were

enough for a rational person to find beyond a reasonable doubt that Neff was

armed.     ki. Specifically, it noted that the security cameras and video monitor

provided the necessary additional proof beyond Neff’s presence and constructive

possession of the guns linking the guns to the crime of manufacturing. ki. It also

observed that a defendant does not have to be armed at the moment of arrest to

be armed for purposes of a firearm enhancement. ki.

         Here, after the officers arrived at Smith’s house, he came out of a bedroom

door and showed himself at the base of a stairwell. Inside that bedroom, officers

found a quarter pound of methamphetamine. Officers also found what appeared

to be a methamphetamine bong, a digital scale with a large amount of white crystal

residue on it, and a large amount of brand new packaging bags. Young testified

that such items are indicative of drug sales.

       Before the officers found the firearms, Smith told Young that there were

guns in the bedroom. He specifically told Young that there was “a .380 and a .45.”

He stated that he was not sure where the guns were, but that one of them “might

be in the safe.” He said that the safe belonged to Marshall, and that Beliveau said

she was borrowing the Bersa pistol. Farley found the locked safe in the bedroom.

The safe with the pistol inside was plainly visible next to the bed, below clothes


                                             14
No. 76961-8-1/15


that were on hangers above. And, unlike Valdobinos, the pistol was not under the

bed and unloaded. Inside the safe, Farley found the loaded .380 caliber Bersa

pistol, along with some holsters and magazines for the .45 caliber H&K pistol.

Smith does not argue that the Bersa would not have been within reach. Rather,

he argues that it was not available, because it was in the safe. The safe had a

keypad. Smith and Beliveau denied that they had access to the safe, and Farley

had to force it open. Smith stated that the safe belonged to Marshall, and that

Beliveau was borrowing the Bersa pistol. He does not cite evidence that Marshall

and Beliveau knew one another. A jury could infer from this evidence that Smith

knew the code to the safe.

       After the officers found the firearms, Smith told Young that he had the guns

because an individual had made threats to harm him and his family. Elton testified

that “a drug dealer usually carries firearms to protect himself from being robbed

from another competit[or] or another purchaser.” From the Bersa pistol’s proximity

to the evidence of illicit drugs, a jury could infer that the pistol was linked to the

crime of manufacturing. Accordingly, there is sufficient evidence to demonstrate

that the firearm found in the locked safe was easily accessible and readily available

for offensive or defensive purposes.

       The evidence is sufficient to allow a jury to conclude that Smith was armed

with the Bersa pistol.

 II.   Unanimous Jury Verdict

       Smith argues that the trial court violated his right to a unanimous jury verdict

in failing to instruct the jury that it had to unanimously agree on a particular firearm


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No. 76961-8-1/16


for the firearm enhancement. He also notes that, at trial, the State did not rely on

a single firearm in arguing for the enhancement. Rather, it stated,

               Here we have testimony that both of those two guns are two
       to five feet away from where all those drugs are. We also have
       information that often it is not uncommon for someone who is selling
       narcotics to have some form of protection when they are doing so.
       So I submit to you that Mr. Smith did, in fact, possess and was armed
       with a firearm at the time of the commission of the crime in Count 3,
       which is the possession of a controlled substance with intent to
       deliver or manufacture.
(Emphasis added.)

       The State contends that Smith failed to preserve the question of jury

unanimity on review.     Smith does not argue that he raised the issue at trial.

Generally, this court does not review claims raised for the first time on appeal.

RAP 2.5(a). However, a party may raise for the first time on appeal a manifest

error affecting a constitutional right. RAP 2.5(a)(3). “‘Manifest’ in RAP 2.5(a)(3)

requires a showing of actual prejudice.” State v. Kirkman, 159 Wn.2d 918, 935,

155 P.3d 125 (2007). “Essential to this determination is a plausible showing by

the defendant that the asserted error had practical and identifiable consequences

in the trial of the case.” State v. VVWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257

(1999) (quoting State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)).

       Smith argues that this court should conflate the analyses for determining

whether an alleged error was manifest, and whether a unanimity instruction was

required. He relies on State v. Knutz, 161 Wn. App. 395, 253 P.3d 437 (2011).

There, this court concluded that “[b]ecause.   .   .   the test for determining whether an

alleged error is ‘manifest’ is closely related to the test for the substantive issue of



                                             16
No. 76961-8-1117


whether a Petrich [unanimity] instruction was required, we conflate these two

analyses.” Knutz, 161 Wn. App. at 407 (citing State v. Petrich, 101 Wn.2d 566,

683 P.2d 173 (1984), overruled on other grounds by State v. Kitchen, 110 Wn.2d

403, 405-06, 756 P.2d 105 (1988). As a result, we reach the issue under Knutz.

          Criminal defendants in Washington have a right to a unanimous jury verdict.

State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994). “In certain

situations, the right to a unanimous jury trial also includes the right to express jury

unanimity on the means by which the defendant is found to have committed the

crime.”     ].ç~   Specifically, “[w]hen the evidence indicates that several distinct

criminal acts have been committed, but [the] defendant is charged with only one

count of criminal conduct, jury unanimity must be protected.” Petrich, 101 Wn.2d

at 572. When the State presents evidence of several acts that could form the basis

of the count charged, either the State must tell the jury which act to rely on, or the

court must instruct the jury to agree on a particular criminal act.           State v.

Stockmyer, 83 Wn.App. 77, 86, 920 P.2d 1201 (1996). However, “[i]f the evidence

is sufficient to support each alternative means submitted to the jury, a

particularized expression of unanimity as to the means by which the defendant

committed the crime is unnecessary to affirm a conviction.” Ortega-Martinez, 124

Wn.2d at 707-08.

      A firearm enhancement is not an independent crime.              Smith cites no

authority suggesting how the general jury unanimity analysis applies to a firearm

enhancement. And, he did not seek a unanimity instruction at trial. The trial court

was not required to provide a unanimity instruction for the firearm enhancement.


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No. 76961-8-1/18


        Even   if the     general jury unanimity analysis       applied to firearm

enhancements, sufficient evidence supported each alternative means of satisfying

the enhancement. The evidence is sufficient to allow a jury to conclude that Smith

was armed with either the H&K pistol in the bed or the Bersa pistol in the locked

safe.    If the evidence is sufficient to support each of the alternative means

submitted to the jury, “we infer that the jury rested its decision on a unanimous

finding as to the means.”         The trial court did not violate Smith’s right to a

unanimous jury verdict.

 Ill.   Same Criminal Conduct and Ineffective Assistance of Counsel

        Smith argues that he received ineffective assistance of counsel due to his

attorney’s failure to challenge his offender score.     He argues that his unlawful

possession of a firearm convictions encompassed the same criminal conduct.

Specifically, he contends that “[t}he trial court abused its discretion and misapplied

the law when it counted the eight convictions for unlawful possession of a firearm

separately in the offender score.” He asserts that, under RCW 9.94A.589(1)(a),

the six convictions for the firearms in the storage unit and the two convictions for

the firearms in the bedroom encompassed the same criminal conduct.

        To prevail on a claim of ineffective assistance of counsel, a defendant must

show that counsel’s        performance fell below an         objective standard     of

reasonableness based on consideration of all the circumstances, and that the

deficient performance prejudiced the trial. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Nichols, 161 Wn.2d 1, 8,

162 P.3d 1122 (2007). If one of the two prongs of the test is absent, we need not


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No. 76961-8-1/19


inquire further. Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266,

273, 166 P.3d 726 (2007).       The reasonableness inquiry presumes effective

representation and requires the defendant to show the absence of legitimate

strategic or tactical reasons for the challenged conduct. State v. McFarland, 127

Wn.2d 322, 336, 899 P.2d 1251 (1995).            Prejudice is present if there is a

reasonable probability that, but for counsel’s error, the result would have been

different. ki. at 334-35.

       RCW 9.94A.589(1)(a) states,

       Except as provided in (b), (c), or (d) of this subsection, whenever a
       person is to be sentenced for two or more current offenses, the
       sentence range for each current offense shall be determined by
       using all other current and prior convictions as if they were prior
       convictions for the purpose of the offender score: PROVIDED, That
       if the court enters a finding that some or all of the current offenses
       encompass the same criminal conduct then those current offenses
       shall be counted as one crime.
       Because Smith was convicted of unlawful possession of a firearm in the first

degree and possession of a stolen firearm, RCW 9.94A.589(1)(c) applies to his

firearm-related convictions. Under RCW 9.94A.589(1 )(c),

       If an offender is convicted under RCW 9.41.040 for unlawful
       possession of a firearm in the first or second degree and for the
       felony crimes of theft of a firearm or possession of a stolen firearm,
       or both, the standard sentence range for each of these current
       offenses shall be determined by using all other current and prior
       convictions, except other current convictions for the felony crimes
       listed in subsection (1)(c), as if they were prior convictions. The
       offender shall serve consecutive sentences for each conviction of the
       felony crimes listed in this subsection (1)(c), and for each firearm
       unlawfully possessed.




                                            19
No. 76961-8-1/20


       The most recent case Smith relies on is Stockmyer. There, Stockmyer was

convicted of seven counts of first degree unlawful possession of a firearm, first

degree assault with a firearm enhancement, and unlawful manufacture of a

controlled substance with a firearm enhancement. Stockmyer, 136 Wn. App. at

216. RCW 9.94A.589(1)(c) was not applicable, because Stockmyer was not also

convicted of theft of a firearm or possession of a stolen firearm. Thus, Stockmyer

does not control.

       Smith also relies on State v. Haddock, 141 Wn.2d 103, 3 P.3d 733 (2000),

and State v. Simonson, 92 Wn. App. 874, 960 P.2d 955 (1998). In Haddock and

Simonson, the defendants committed their offenses in 1995 and 1996,

respectively.   141 Wn.2d at 106; 91 Wn. App. at 877. The statute governing

consecutive and concurrent sentences at that time did not include a provision

similar to RCW 9.94A.589(1)(c). See former RCW 9.94A.400 (1995). As a result,

those cases are not instructive.

       RCW 9.94A.589(1)(c) applies here. It prohibits the trial court from counting

Smith’s current firearm-related convictions in calculating the offender scores for

each firearm-related conviction. The trial court complied with this provision and

did not include his current firearm-related convictions in the offender scores for

each firearm-related conviction.   Had Smith’s counsel made a same criminal

conduct argument under RCW 9.94A.589(1)(a) as to these convictions, it would

have failed as a matter of law. Accordingly, Smith’s counsel’s performance did not

fall below an objective standard of reasonableness.




                                           20
No. 76961-8-1/21


       The trial court did not abuse its discretion in failing to find that Smith’s

unlawful possession of a firearm convictions encompassed the same criminal

conduct under RCW 9.94A.589(1)(a).           And, Smith did not receive ineffective

assistance of counsel, because RCW 9.94A.589(l)(a) did not apply to his firearm-

related convictions.2

 IV.   Concurrent Sentences

       Smith argues that the trial court erred in concluding that it had no discretion

to impose concurrent sentences for the firearm-related offenses.

       At sentencing, the State cited RCW 9.94A.589(1)(c) in asserting that

Smith’s sentences for the firearm-related offenses “must run consecutively.” In its

memorandum, it cited State v. McReynolds, 117 Wn. App. 309, 71 P.3d 663

(2003), for the proposition that RCW 9.94A.589(1)(c) clearly and unambiguously

prohibits concurrent sentences for the listed firearm crimes. The McReynolds


       2   Smith does not address this argument separately to his firearm-related
convictions and his controlled substance conviction. Unlike his firearm-related
convictions, RCW 9.94A.589(1)(a) did apply to his controlled substance conviction.
His offender score for his controlled substance conviction included 9 points for his
current firearm-related convictions, for a total score of 20. His trial counsel failed
to make a same criminal conduct argument as to this conviction. But, even without
including the 9 firearm-related convictions in his offender score, he still would have
had an offender score of 11 based on his prior convictions. The State noted in its
sentencing memorandum that, for the controlled substance conviction, the
standard range for an offender score of 9 plus is 100 to 120 months. The trial court
sentenced Smith to 120 months for this conviction. And, it ordered that those 120
months be served concurrently with the rest of his 70 year sentence. Thus, even
if the trial court had found that his 6 convictions for the firearms in the storage unit
and his 2 convictions for the firearms in the bedroom encompassed the same
criminal conduct, Smith still would have had an offender score of 9 plus. As a
result, we find no prejudice based on his trial counsel’s failure to make a same
criminal conduct argument as to his controlled substance conviction. His
ineffective assistance of counsel claim still fails.

                                              21
No. 76961-8-1/22


court actually determined that another statute, RCW 9.41 .040(6), prohibits such

sentences. 117 Wn. App. at 342-43. The State also cited State v. Haggin, 195

Wn. App. 315, 381 P.3d 137 (2016). There, this court determined that “RCW

9.94A.589(1)(c) requires trial courts to run sentences consecutively only when a

person is convicted of unlawful possession in addition to firearm theft or

possession of a stolen firearm.” Haqciin, 195 Wn. App. at 324.

       Smith did not take issue with the State’s characterization of the case law.

At sentencing, his counsel stated, “Based on my research I do believe that the

State is correct regarding the case law in this matter, and I also believe that the

State is asking for the least amount she possibly could.”3

       The trial court adopted the State’s sentencing recommendation. It imposed

87 months of confinement for each unlawful possession of a firearm conviction, 72

months of confinement for the possession of a stolen firearm conviction, and 72

months of confinement for the firearm enhancement.4              It stated that these

sentences would run consecutively. Smith received a total sentence of 70 years

of confinement.

       RCW 9.94A.589(1)(c) provides,

       If an offender is convicted under RCW 9.41.040 for unlawful
       possession of a firearm in the first or second degree and for the
       felony crimes of theft of a firearm or possession of a stolen firearm,

       ~ The State does not challenge Smith’s ability to raise this issue on appeal.
But, based on the transcript from the sentencing hearing, Smith did not raise the
possibility of concurrent sentences, nor argue that it was error for the trial court to
impose consecutive sentences for the firearm-related offenses.
       ~ It also imposed 120 months of confinement for the controlled substance
conviction. It stated that those 120 months would run concurrently with his 70 year
sentence.

                                             22
No. 76961-8-1/23

       or both, the standard range sentence for each of these current
       offenses shall be determined by using all other current and prior
       convictions, except other current convictions for the felony crimes
       listed in this subsection (1 )(c), as if they were prior convictions. The
       offender shall serve consecutive sentences for each conviction of the
       felony crimes listed in this subsection (1)(c), and for each firearm
       unlawfully possessed.
(Emphasis added.) But, if a court finds that a presumptive sentence under RCW

9.94A.589 is “clearly excessive in light of the purpose of the [Sentencing Reform

Act of 1981 (SRA), chapter 9.94A RCW],” it has discretion to impose an

exceptional mitigated sentence. RCW 9.94A.535(1)(g). Among the purposes of

the SRA is to “[ejnsure that the punishment for a criminal offense is proportionate

to the seriousness of the offense and the offender’s criminal history.”            RCW

9.94A.O1 0(1);

       Smith relies primarily on an opinion issued after his June 2017 sentencing,

Statev. McFarland, 189 Wn.2d 47, 399 P.3d 1106 (2017). In McFarland, the State

Supreme Court held that remand for resentencing was warranted because the

record suggested “at least the possibility that the sentencing court would have

considered imposing concurrent firearm-related sentences had it properly

understood its discretion to do so.” ki. at 59.

      At sentencing, McFarland’s counsel had agreed with the State as to running

his firearm-related sentences consecutively, but had expressed concern about the

overall sentence length.        at 50-51.   Neither his counsel nor the trial court

considered imposing an exceptional sentence downward by running the firearm

related sentences concurrently. ki. at 51. The trial court stated, “I don’t have     --




apparently [I] don’t have much discretion, here. Given the fact that these charges



                                             23
No. 76961-8-1/24


are going to be stacked one on top of another, I don’t think   --   I don’t think [the] high

end is called for, here.” ki. (alterations in original).

         On appeal, the State Supreme Court clarified that “nothing in the SRA

preclud[es] concurrent exceptional sentences for firearm related-convictions.” Id.

at 54.    Specifically, it held, “[I]n a case in which standard range consecutive

sentencing for multiple firearm-related convictions ‘results in a presumptive

sentence that is clearly excessive in light of the purpose of [the SRA],’ a sentencing

court has discretion to impose an exceptional, mitigated sentence by imposing

concurrent firearm-related sentences.” j~ at 55 (alterations in original) (quoting

RCW 9.94A.535(1)(g)).

         A discretionary sentence within the standard range is reviewable where the

trial court has refused to exercise its discretion at all, or has relied on an

impermissible basis for refusing to impose an exceptional sentence below the

standard range. McFarland, 189 Wn.2d at 56. A trial court errs when (1) “it refuses

categorically to impose an exceptional sentence below the standard range under

any circumstances,” or (2) when it operates under the “mistaken belief that it did

not have the discretion to impose a mitigated exceptional sentence for which [the

defendant] may have been eligible.” State v. Garcia-Martinez, 88 Wn. App. 322,

330, 944 P.2d 1104 (1997); In re Pers. Restraint of Mulholland, 161 Wn.2d 322,

333, 166 P.3d 677 (2007).




                                               24
No. 76961-8-1125


       Here, Smith asserts that the trial court erroneously concluded that it did not

have discretion to impose concurrent sentences for the firearm-related offenses.

But, the court did not make such a statement. Rather, it stated in part,

               The law applicable to your sentence is complex, and it is
        because as [the State] indicated, the Legislature has passed a series
        of laws that require the Court and really all of society to recognize
        the intolerance that we have and should have for the combination of
        firearms and other criminal activity, particularly where an individual
        has a criminal conviction history. You have been advised so many
        times of your prohibition against possessing firearms. I say that
        because you have been convicted of multiple felonies in the past. It
        is always a practice of the Court to advise an individual they may not
        possess firearms at the time of sentencing. There is no doubt in this
        case that you knew that you could not possess firearms, and
        nevertheless, there are these findings by the jury that you possessed
        a significant number of firearms. And, of course, this is part of the
        possession      with    intent   to    manufacture      or    distribute
        methamphetamine, another count which you were convicted by the
       jury. Given your criminal conviction history, you are facing serious
       and substantial penalties for all of these things.
It then adopted the State’s sentencing recommendation.

       The trial court’s statements about “the combination of firearms and other

criminal activity” in this case, as well as Smith’s criminal history, suggest that it was

not inclined to consider an exceptional sentence below the standard range. As a

result, the court would have no reason to comment on or express concern about

its authority to impose an exceptional sentence. The trial court did not err in

sentencing Smith.

 V.    Legal Financial Obligations

       Smith argues last that his criminal filing fee, DNA (deoxyribonucleic acid)

collection fee, and the portion of the judgment and sentence requiring interest

accrual on nonrestitution legal financial obligations (LFOs) should be stricken. He


                                              25
No. 76961-8-1/26


relies on House Bill 1783~ and State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714

(2018).

       In Ramirez, the State Supreme Court held that House Bill 1783 applies

prospectively to cases on appeal. 191 Wn.2d at 747. House Bill 1783 amends

RCW 10.82.090, providing that “no interest shall accrue on nonrestitution legal

financial obligations.”    LAWS OF 2018, ch. 269,      § 1(1).     It amends RCW

36.18.020(2)(h) to prohibit courts from imposing the $200 filing fee on defendants

who are indigent. Seek~.   § 17(2)(h). And, it amends RCW43.43.7541, providing
that the $100 DNA collection fee is not mandatory where “the state has previously

collected the offender’s DNA as a result of a prior conviction.” k1.   § 18.
      At Smith’s sentencing, the trial court suspended the crime lab fee due to his

indigency. Exhibit 1 to the State’s sentencing memorandum indicates that it had

previously collected Smith’s DNA. And, while the State does not address interest

accrual on Smith’s nonrestitution LFOs, the portion of the judgment and sentence

requiring such accrual should be stricken. See LAWS OF 2018, ch. 269,          § 1(1).
Accordingly, we remand to the trial court to strike the criminal filing fee, DNA

collection fee, and the portion of the judgment and sentence requiring interest

accrual on nonrestitution LFO5.




      ~ ENGROSSED SECOND SUBSTITUTE H.B. 1783,          §~ 17(2)(h), 18, 65th Leg.,
Reg. Sess. (Wash. 2018) (House Bill 1783).

                                            26
No. 76961-8-1/27


      We affirm Smith’s convictions, but remand to the trial court to strike the

criminal filing fee, DNA collection fee, and portion of the judgment and sentence

requiring interest accrual on nonrestitution LFOs.




WE CONCUR:



     ______                                          A   ~




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