PART PUBLISHED OPINION

VAN DEREN, J.

¶ 1 Mark David Grimes appeals a sentence enhancement imposed for conviction of delivering methamphetamine within 1,000 feet of a school bus route stop and his bail jumping conviction. He argues that we should vacate the enhancement portion of his sentence based on a Bashaw1 instructional error, that the evidence is insufficient to support his bail jumping conviction, and that his trial counsel rendered ineffective assistance.2 The State responds that Grimes cannot challenge the Bashaw instruction for the first time on appeal because he fails to establish that it was a manifest error of constitutional magnitude. We hold that Grimes may not raise the issue of instructional error under Bashaw for the first time on appeal under the facts of this case, that the evidence was sufficient to support his bail jumping conviction, and that his counsel was not ineffective. We affirm.

FACTS

¶ 2 In the early morning of June 27, 2009, City of Lacey police used informant Michael Santos to conduct a controlled buy of methamphetamine from Grimes, in a Safeway store parking lot. Grimes arrived in a car driven by his girl friend, Johanna Crandell. When Santos approached the passenger side of the car, where Grimes was seated, Grimes handed Santos a plastic sandwich bag containing methamphetamine and Santos handed Grimes $100 of "prerecorded buy money." Report of Proceedings (RP) at 92.

¶ 3 Santos walked away from the car and pulled up his sweatshirt hood, signaling the police that the drug buy had occurred. Police immediately stopped the car, arrested its occupants, and recovered the methamphetamine and purchase money. After waiving his Miranda3 rights, Grimes talked with police, confessed that he had delivered methamphetamine to Santos, and indicated that he would work with police and that "he was willing to order up from his supplier to avoid going to jail." RP at 221.

¶ 4 The State charged Grimes by first amended information with unlawful delivery of methamphetamine within 1,000 feet of a school bus route stop. On October 14, 2009, the trial court granted Grimes's motion for a continuance. Grimes signed an agreed order of trial continuance and agreed to appear at a December 2 status conference hearing and at trial scheduled for December 7. When Grimes did not appear in court for the scheduled status conference on December 2, the trial court issued a bench warrant for arrest. Following his arrest on the warrant, the State filed a second amended information charging him with unlawful delivery of methamphetamine within 1,000 feet of a school bus route stop (count 1) and bail jumping (count 2).

¶ 5 When the trial finally commenced during February 2010, Santos testified that he had known Grimes for approximately one year before the June 27, 2009, drug delivery and that their relationship was primarily based on using methamphetamine together. Santos identified Grimes in open court as the person who had sold him the methamphetamine on June 27; Santos also identified Grimes using Grimes's booking photograph. Lacey Police Department Detective David Miller also identified Grimes in open court as the individual that police had arrested following Santos's controlled buy on June 27.

¶ 6 Crandell testified that, after she was subpoenaed to testify in Grimes's trial, she had left Washington and travelled to Arizona with Grimes. Crandell identified Grimes in open court, testifying that she had been in a relationship with him for the past four years and wanted to continue that relationship. She further testified that on June 27, 2009, she had driven Grimes to the Safeway parking lot to collect money that Santos owed her;4 that Santos gave her $100; and, for the first time, she claimed that she gave Santos a bag of methamphetamine that she had found among the items in her car. Crandell also explained that she had pleaded guilty to conspiracy to deliver methamphetamine based on the June 27 delivery to Santos and that her court-imposed conditions included that she not communicate with Grimes.

¶ 7 Evidence related to the sale of drugs within 1,000 feet of two school bus route stops included the testimony of North Thurston Public Schools Transportation Director, Eric Weight, who testified that there were two separate school bus route stops within 1,000 feet of the Safeway store where the June 27, 2009, methamphetamine delivery took place.

¶ 8 To prove the bail jumping charge, the State called a Thurston County senior deputy prosecutor, David Bruneau, to introduce the October 14, 2009, agreed order continuing Grimes's trial on the methamphetamine delivery charge. Bruneau directed the jury to the language on the order that read, "This order is valid only if personally signed by the defendant." Ex. 11 (capitalization omitted). The order was signed by Grimes, his defense counsel, the deputy prosecutor, and the trial court judge. In signing the agreed order, Grimes agreed to appear in court on December 2 for a status conference hearing and to appear for trial on December 7. Just above the date and signature lines, the order stated in capitalized, bold, italicized lettering that failure to appear could result in criminal prosecution for bail jumping. Bruneau testified that he was in court on December 2, 2009, that Grimes did not appear at the status hearing as ordered, that as a result the trial court issued a bench warrant for Grimes's arrest, and that Grimes was arrested for bail jumping on December 30, 2009.

¶ 9 Following testimony, the trial court's jury instruction 16 explained the special verdict form related to the school zone enhancement on the methamphetamine delivery charge:

Clerk's Papers (CP) at 54. Grimes's defense counsel did not object to this instruction or to any other of the trial court's jury instructions.

¶ 10 The jury convicted Grimes of both crimes as charged and found by special verdict that he had been within 1,000 feet of a school bus route stop when the methamphetamine delivery occurred. Grimes appeals the school bus route stop sentence enhancement on his delivery conviction and his bail jumping conviction.

ANALYSIS

SPECIAL VERDICT INSTRUCTION

¶ 11 Citing Bashaw, Grimes argues that we should reverse his 24 month sentence enhancement because the trial court erred in instructing the jury that it must be unanimous to return a "yes" or "no" answer on a special verdict finding about whether he delivered a controlled substance within 1,000 feet of a school bus route stop. We disagree that Grimes's sentence enhancement must be reversed.

¶ 12 Grimes contends that the following instruction is reversible error under Bashaw:

CP at 54 (emphasis added); 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 50:60, at 986 (3d ed. 2008) (WPIC).5

¶ 13 The State responds that (1) Grimes cannot raise this issue for the first time on appeal because he failed to object to the instruction at trial and (2) the asserted error does not fall within the exception to the general rule requiring preservation of issues for appeal because this instruction was not a manifest constitutional error. We agree with the State.

A. Manifest Error Affecting a Constitutional Right

¶ 14 RAP 2.5(a)(3) provides, "The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed error[ ] for the first time in the appellate court: ... manifest error affecting a constitutional right." State v. Powell, 166 Wn.2d 73, 82, 206 P.3d 321 (2009). CrR 6.15(c) requires timely and well stated objections to jury instructions. State v. Scott, 110 Wn.2d 682, 685-86, 757 P.2d 492 (1988). The policy underlying the preservation rule is to promote "efficient use of judicial resources"; therefore, "[this] court[ ] will not sanction a party's failure to point out at trial an error which the trial court, if given the opportunity, might have been able to correct to avoid an appeal and a consequent new trial." Scott, 110 Wash.2d at 685, 757 P.2d 492.

¶ 15 Referring to RAP 2.5(a), our Supreme Court recently noted:

State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011) (some citations omitted) (internal quotation marks omitted) (quoting State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)).6 This manifest constitutional error exception, however, does not afford a defendant a means for obtaining a new trial whenever he can identify a constitutional issue not preserved below. State v. Kirk-patrick, 160 Wn.2d 873, 879, 161 P.3d 990 (2007).

B. Unanimous "No" Special Verdict Jury Instructions

¶ 16 We first relate how our courts have treated unanimous "no" special verdict jury instructions. We then analyze whether Grimes can raise an objection to a unanimous "no" special verdict jury instruction for the first time on appeal. We conclude that he cannot.

1. Supreme Court Decisions: Goldberg and Bashaw

¶ 17 In State v. Goldberg, our Supreme Court held that unanimity was not required to return a "no" answer to a special verdict form. 149 Wn.2d 888, 893-94, 72 P.3d 1083 (2003). In Goldberg, the jury first returned a "no" special verdict finding, but the trial court then required the jury to deliberate further because a jury poll revealed that the "no" special verdict finding was not unanimous. 149 Wash.2d at 891, 72 P.3d 1083. After further deliberation, the jury returned a unanimous "yes" special verdict finding. Goldberg, 149 Wash.2d at 891-92, 72 P.3d 1083. Because the trial court erroneously required the jury to deliberate until it reached a unanimous verdict, our Supreme Court vacated the special verdict. Goldberg, 149 Wash.2d at 894, 72 P.3d 1083.

¶ 18 In Bashaw, our Supreme Court expressly held that a jury instruction stating, " `Since this is a criminal case, all twelve of you must agree on the answer to the special verdict,'" misstated the law on jury unanimity for special verdicts. 169 Wash.2d at 139, 234 P.3d 195 (quoting Bashaw Clerk's Papers at 95), 147. The court held that jury unanimity is required only to answer a special verdict "yes" because a "nonunanimous jury decision on such a special finding is a final determination that the State has not proved that finding beyond a reasonable doubt." Bashaw, 169 Wash.2d at 145, 234 P.3d 195. In reaching this decision, the court noted that its result "[wa]s not compelled by constitutional protections against double jeopardy, but rather by the common law precedent of this court, as articulated in Goldberg." Bashaw, 169 Wash.2d at 146 fn. 7, 234 P.3d 195. (citation omitted.)

¶ 19 Bashaw did not object to the special verdict jury instruction at trial,7 but the Supreme Court did not address whether the newly alleged error met the RAP 2.5(a)(3) requirement that it be a "manifest error affecting a constitutional right." Bashaw, 169 Wash.2d at 145-48, 234 P.3d 195. Then, absent the objection being raised at trial and after acknowledging that the result was not based on protecting a constitutional right, the Court applied a constitutional harmless error analysis and reversed Bashaw's conviction because the instructional error was not harmless under the facts of that case.8 Bashaw, 169 Wash.2d at 147-48, 234 P.3d 195. The court described the error as "the procedure by which unanimity [wa]s inappropriately achieved," which resulted in a "flawed deliberative process tell[ing] little about what result the jury would have reached had it been given a correct instruction." Bashaw, 169 Wash.2d at 147, 234 P.3d 195.

¶ 20 Now, citing Bashaw, appellants are increasingly claiming that failing to object to special verdict unanimity jury instructional errors at trial does not bar raising the issue for the first time on appeal because such errors constitute manifest constitutional error. But in our view, the Supreme Court's holding in Bashaw was not so broad. And we note that the Supreme Court has recently decided to review this preservation issue in cases arising from Divisions One and Three of this court.

2. Division Three Court of Appeals: Nunez9

¶ 21 Division Three recently held that the unanimous "no" special verdict jury instruction, held to be erroneous in Bashaw,10 does not constitute manifest constitutional error that an appellant can raise for the first time on appeal under RAP 2.5(a)(3). Nunez, 160 Wash.App. at 164-65, 248 P.3d 103. The instruction that Nunez challenged was the same as that challenged by Grimes, WPIC 50.60. Nunez, 160 Wash.App. at 157 n. 1, 163, 248 P.3d 103. After setting out the analytical steps required by a manifest constitutional error analysis under RAP 2.5(a)(3), the Nunez court determined that failing to instruct the jury that it could "nonunanimously" answer "no" on a special verdict did not implicate a constitutional right under the Sixth or Fourteenth Amendments to the United States Constitution or under our state's constitution. 160 Wash.App. at 158-60, 248 P.3d 103.

¶ 22 This analysis is consistent with prior Washington Supreme Court cases, including Bashaw, that did not rely on a constitutional analysis as a basis for its decision but, instead, relied on common law rules.11 Nunez, 160 Wash.App. at 160-62, 248 P.3d 103. The Nunez court noted that, when the Bashaw court determined that unanimous "no" special verdict instructions are erroneous, the court struck a balance between providing finality for defendants facing special sentencing enhancements and judicial economy, a decidedly nonconstitutional principle.12 Nunez, 160 Wash. App. at 162, 248 P.3d 103.

¶ 23 The Nunez court also determined that, even if the unanimous "no" instructional error implicated a constitutional right, the error was not "manifest" under RAP 2.5(a)(3) because Nunez did not identify "practical and identifiable consequences on the record that should have been apparent to the trial court." 160 Wash.App. at 163, 248 P.3d 103. First, the trial court's instruction materially conformed to the recommended WPIC pattern jury instruction. Nunez, 160 Wash.App. at 163, 248 P.3d 103. Furthermore, the jury made all required findings by applying the proper burden of proof under the instructions given by the trial court. Nunez, 160 Wash.App. at 163-64, 248 P.3d 103. Finally, Nunez made no "affirmative showing of actual prejudice"; thus, the asserted error was not "manifest" and not reviewable under RAP 2.5(a)(3). Nunez, 160 Wash.App. at 164, 248 P.3d 103. We find Division Three's analysis in Nunez persuasive that the WPIC instruction as applied here is neither constitutionally deficient nor a manifest error under RAP 2.5(a)(3).

3. Division One Court of Appeals: Ryan and Morgan13

¶ 24 Division One of our court also recently addressed the instruction Grimes challenges. Division One panels have, however, reached different conclusions. In Ryan, a panel rejected Division Three's Nunez rationale:14

Ryan, 160 Wash.App. at 948-49, 252 P.3d 895 (footnotes omitted) (quoting Bashaw, 169 Wash.2d at 147, 234 P.3d 195).

¶ 25 More recently, a different Division One panel agreed with Nunez and rejected its colleagues' decision in Ryan. The Morgan court agreed with the Nunez court that unanimous "no" special verdict instruction errors were compelled by the common law and not by due process, as suggested in Ryan. 163 Wash.App. at 351-52, 261 P.3d 167.

¶ 26 Morgan examined both the due process clause of the Fourteenth Amendment to the United States Constitution and our state constitution to ascertain whether either could serve as the basis of our Supreme Court's Bashaw decision. 163 Wash.App. at 351-52, 261 P.3d 167. It concluded that neither constitution could provide such a basis because (1) "[t]he due process clause of the Fourteenth Amendment to the United States Constitution does not serve to protect state-law rights" and (2) "our state constitution's due process clause, article I, section 3, has never been held to incorporate common law rights within its protections." Morgan, 163 Wash. App. at 351-52, 261 P.3d 167 (footnotes omitted) (citing California v. Greenwood, 486 U.S. 35, 43, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988)). In support of this analysis, the court in Morgan noted that "Washington's due process clause is coextensive with that of the Fourteenth Amendment, providing no greater protection," and the right to nonunanimous "no" special verdict instructions does not exist in federal courts. 163 Wash.App. at 352, 261 P.3d 167.

¶ 27 We agree that, because the Bashaw decision is not founded in our state constitution or in the United States Constitution, an error in giving the special verdict in Grimes's case is not based on a constitutional right.

C. Manifest Constitutional Error Analysis

¶ 28 Three steps are involved in analyzing whether an issue raised for the first time on appeal can benefit from RAP 2.5(a)'s manifest constitutional error exception. The defendant has the initial burden of showing that (1) the error was "truly of constitutional dimension" and (2) the error was "manifest." State v. O'Hara, 167 Wash.2d at 98, 217 P.3d 756. A defendant cannot simply assert that an error occurred at trial and label the error "constitutional"; instead, he must identify an error of constitutional magnitude and show how the alleged error actually affected his rights at trial. Gordon, 172 Wash.2d at 676, 260 P.3d 884. If he successfully shows that a claim raises a manifest constitutional error, then the burden shifts to the State to prove that the error was harmless beyond a reasonable doubt under the Chapman15 standard. Gordon, 172 Wash.2d at 676 n. 2, 260 P.3d 884.

1. Is the Error "Constitutional"?

¶ 29 To determine whether an error is truly of constitutional dimension, appellate courts first look to the asserted claim and assess whether, if the claim is correct, it implicates a constitutional interest as compared to another form of trial error. O'Hara, 167 Wash.2d at 98, 217 P.3d 756. The failure to instruct a jury on every element of the charged crime, for example, would be constitutional in nature. Gordon, 172 Wash.2d at 677, 260 P.3d 884 (citing State v. Aumick, 126 Wn.2d 422, 429, 894 P.2d 1325 (1995); Scott 110 Wash.2d at 689, 757 P.2d 492). Jury instruction errors, however, are not presumptively of constitutional magnitude. See O'Hara, 167 Wash.2d at 106, 217 P.3d 756.

2. Is the Error "Manifest"? Did It Have an "Identifiable Consequence"?

¶ 30 "After determining the error is of constitutional magnitude, the appellate court must determine whether the error was manifest." O'Hara, 167 Wash.2d at 99, 217 P.3d 756. For an error to be "manifest," the defendant must show that the asserted error had practical and identifiable consequences at trial.16 Gordon, 172 Wash.2d at 676, 260 P.3d 884. Given what the trial court knew at that time, to ascertain whether the trial court could have corrected the alleged error, the appellate court must place itself in the shoes of the trial court when determining if an alleged error had practical and identifiable consequences. O'Hara, 167 Wash.2d at 100, 217 P.3d 756.

3. Is the Error "Harmless"?

¶ 31 If an alleged error has practical and identifiable consequences, i.e., if it is "manifest" and also of "constitutional magnitude," the reviewing court usually will address the merits of the claim and determine whether, in the context of the entire record, the error is harmless beyond a reasonable doubt.17 O'Hara, 167 Wash.2d at 99, 217 P.3d 756. To find an error harmless beyond a reasonable doubt, an appellate court must find that the alleged instructional error did not contribute to the verdict obtained. State v. Brown, 147 Wn.2d 330, 344, 58 P.3d 889 (2002).

D. Application of Three Step Manifest Constitutional Analysis18 to Grimes

1. Grimes's Alleged Error Not "Constitutional"

¶ 32 Grimes fails to point to a specific constitutional interest affected by the alleged error; instead, he cites Bashaw generally. But Bashaw does not hold that the instructional error at issue here is of constitutional magnitude. This rule is compelled by "the common law precedent of this court, as articulated in Goldberg." Bashaw, 169 Wash.2d at 146 fn. 7, 234 P.3d 195. We also agree with the Nunez and Morgan courts' constitutional analyses that the rule in Bashaw was not compelled by constitutional protections, but rather by Washington's common law. Adopting the reasoning in Nunez and Morgan, we hold that instructional error requiring jury unanimity to answer "no" on the special sentence enhancement verdict form (asking whether Grimes delivered methamphetamine within 1,000 feet of a school bus route stop) is not constitutional in nature. Morgan, 163 Wash.App. at 351-52, 261 P.3d 167; Nunez, 160 Wash.App. at 159, 248 P.3d 103.

2. Grimes's Alleged Error Not "Manifest"

¶ 33 But even if our Supreme Court ultimately holds in Ryan and Nunez that this particular instructional error is based on constitutional protections, in Grimes's case it is not "manifest."19 Grimes does not assert that the erroneous jury instruction had a "practical and identifiable consequence" at his trial; nor does our independent review of the record reveal any such consequence. Furthermore, here, the instructional error could not have had a practical and identifiable consequence at trial because (1), unlike Bashaw, Grimes did not cast doubt on the existence of the evidence supporting the imposition of the sentence enhancement on the record at trial20 and (2), unlike in Goldberg, the record does not show that the jury disagreed about whether the sentence enhancement was proven beyond a reasonable doubt. And Grimes's jury was not instructed to deliberate to unanimity after first returning a verdict that was not unanimous on the sentence enhancement. Thus, on the record before us, the unanimous sentence enhancement instruction had no "practical and identifiable consequence" at Grimes's trial, nor can we say that the jury instruction error was so obvious that it warrants appellate review. O'Hara, 167 Wash.2d at 99-100, 217 P.3d 756.

¶ 34 On the contrary, placing ourselves in the shoes of the trial court—as instructed by O'Hara—it is unlikely that the trial court would have corrected the instructional error that Grimes raises because the trial court used the pattern jury instruction for deliberations on sentence enhancements for controlled substance crimes. Furthermore, during Grimes's trial, Bashaw had not yet been decided.

3. Grimes's Alleged Error Is "Harmless"

¶ 35 Because the error in the jury instruction that Grimes challenges for the first time on appeal is not manifest, we need not reach the merits of his claim or address the third test, whether the error is harmless beyond a reasonable doubt. But again, in light of the Supreme Court's consolidated review of Nunez and Ryan, we address this issue.

¶ 36 At most, the Bashaw court suggests, but does not hold, that an erroneous unanimous special verdict instruction cannot be deemed harmless beyond a reasonable doubt because the instructional error affects the procedure by which unanimity would be achieved. 169 Wash.2d at 147-48, 234 P.3d 195. But in Bashaw, the jury did not hear any evidence directly establishing distance for the three alleged sentence enhancements because Bashaw called into question the accuracy of the measuring device at trial, a challenge on which she later prevailed on appeal. 169 Wash.2d at 138, 143, 234 P.3d 195. Furthermore, for one of the three Bashaw sentence enhancements, the jury was presented with conflicting testimony from law enforcement and from an informant about the actual distance between the drug delivery and the parking lot containing a school bus route stop. 169 Wash.2d at 138-39, 234 P.3d 195. For the other two counts with special enhancements, the evidence was a police detective's estimate of the length of the parking lot where the two drug sales occurred. Bashaw, 169 Wash.2d at 138, 144, 234 P.3d 195. This parking lot also contained a school bus route stop, and its length was used by the jury to establish the existence of the aggravating factor. Bashaw, 169 Wash.2d at 137-38, 144, 234 P.3d 195. Under these circumstances, given the nature of the evidence, the Supreme Court could not determine that the procedure by which the Bashaw jury achieved unanimity on the special verdict was harmless beyond a reasonable doubt.

¶ 37 No such controversies or uncertainties exist here. Grimes has not attempted to challenge the uncontroverted evidence that the sale occurred less than 1,000 feet from a school bus route stop. Therefore, the procedure by which unanimity was achieved could not have affected the jury's special verdict on the sentence enhancement.

¶ 38 We hold that the special verdict jury instructional error here does not arise in an area entitled to constitutional protection, nor is it manifest, as Grimes offered no evidence that it had practical and identifiable consequences at his trial. Thus, this error was not preserved for appeal and it is not subject to review for the first time on appeal under RAP 2.5(a). Nevertheless, for completeness, we have reviewed the entire record on appeal and hold that any such error was harmless beyond a reasonable doubt in the context of Grimes's trial as it did not affect his rights at trial or the jury's verdict.

¶ 39 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.

We concur: HUNT and JOHANSON, JJ.