(concurring) — I concur in the result reached by the majority. I write specially to make clear that my decision to concur is compelled entirely by my agreement with reasoning that the majority sets forth, but upon which it does not rely. Rather, it addresses the reason "because of its importance.” Majority op. at 61.
In my judgment, we should reverse the Court of Appeals and vacate the sentence enhancement entirely on the basis that the special verdict form fashioned by the trial court constituted a comment on the evidence, thus contravening a provision in the Washington Constitution. As the majority opinion notes, article IV, section 16 of the Washington Constitution provides that "lj]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.” Majority op. at 64. Because the jury was asked in the special verdict form to determine if Becker and Gantt committed the crime of delivery of a controlled substance within 1,000 feet of school grounds, a central issue relating to the enhancement of the sentence was whether the Youth Education Program of the Seattle School District is a "school” within the meaning of RCW 69.50.435. By informing the jury in the special verdict form that the Youth Education Program is a school, the trial court essentially resolved that factual issue. That was an obvious comment on the evidence, the impact of which can only be remedied by vacating the sentence enhancement. See State v. Pam, 98 Wn.2d 748, 760, 659 P.2d 454 (1983) (affirming defendant’s convictions but setting aside jury’s special verdict that defendant was armed with a deadly weapon because trial court erred in instructing jury in special verdict forms), overruled on other grounds by State v. Brown, 113 Wn.2d 520, 540, 782 P.2d 1013, 787 P.2d 906, 80 A.L.R.4th 989 (1989).
*67The dissent suggests that Becker and Gantt did not preserve any error because they did not object to the special verdict form at trial. As the dissent notes, however, an error may be raised for the first time on appeal if it is manifest and affects a constitutional right. RAP 2.5(a)(3). As noted above, the error was of constitutional magnitude. Although not conceding that the error was manifest, the dissent does concede that a major focus of the trial was on the question of whether the Youth Education Program was a school. By telling the jury in the instruction that it was a school the trial court took that issue from the jury. It is hard to view that error as anything other than fundamental and harmful.
These appeals can and should be resolved on the aforementioned state constitutional grounds. If the majority had relied on that reason in reversing the Court of Appeals, as I believe it should, it would have been unnecessary for it to reach the due process issue which forms the core of its opinion. See Allied Daily Newspapers v. Eiken-berry, 121 Wn.2d 205, 209, 848 P.2d 1258 (1993) ("when both state and federal constitutional challenges are raised, court first applies state constitution”) (citing State v. Coe, 101 Wn.2d 364, 373-74, 679 P.2d 353 (1984)).
For the reasons stated above, I concur in the result reached by the majority.
Johnson, J., concurs with Alexander, J.