State v. Goodman

• Decision Date: 15 January 2004
• Docket Number: No. 73533-6.,73533-6.
• Citation: 150 Wash.2d 774,83 P.3d 410
• Parties: STATE of Washington, Respondent, v. Jay Lawrence GOODMAN, Petitioner.
• Court: Washington Supreme Court

83 P.3d 410

150 Wash.2d 774

STATE of Washington, Respondent, v. Jay Lawrence GOODMAN, Petitioner.

No. 73533-6.

Supreme Court of Washington, En Banc.

Argued October 28, 2003.

Decided January 15, 2004.

James Egan, Kennewick, for Petitioner.

Andrew K. Miller, Benton County Prosecutor, Terry Bloor, Deputy County Prosecutor, for Respondent.

SANDERS, J.

Petitioner Jay Goodman challenges his conviction of possession of a controlled substance with intent to deliver in violation of RCW 69.50.401(a). The amended information upon which he was convicted identified the controlled substance as "meth" rather than the full name "methamphetamine," though the original information did fully identify the specific controlled substance. The Court of Appeals affirmed in a partially published opinion, holding the prosecution need not identify in the information the specific controlled substance which forms the basis for a single RCW 69.50.401(a) violation. State v. Goodman, 114 Wash.App. 602, 59 P.3d 696 (2002).

We disagree with the Court of Appeals as its holding is contrary to United States Supreme Court precedent. When the identity of the controlled substance increases the statutory maximum sentence of which the defendant may face upon conviction, that identity is an essential element of the crime and it must be included in the charging document. However, the charging document here is nonetheless sufficient under the liberal standard of review we employ when the information is challenged for the first time on appeal. We also reject Goodman's argument that the evidence was insufficient to find the element of intent to deliver. As such, we affirm his conviction.

FACTS AND PROCEDURAL HISTORY

On August 7, 2001, the Tri City Metro Drug Task Force (Metro) executed a controlled buy which involved a confidential informant (CI) and one Yvonne Estavillo. Metro verified before the controlled buy that the CI did not possess any controlled substances either on his person or in his automobile. The CI and Estavillo, under Metro surveillance, traveled to a house after meeting at Westgate Elementary School. After leaving the residence the CI returned to Metro four baggies of white powder.¹ The four baggies, each bearing a green "Playboy" bunny logo, tested positive for methamphetamine, totaling 2.0 grams. Clerk's Papers (CP) at 22, Finding of Fact (FF) 17-18. This led Metro to procure and execute a search warrant for the house at which the controlled buy took place. The search warrant extended to all rooms in the house.

Goodman, though not the owner of the house, lived in the southeast bedroom.² During the search the police found an Altoids tin which contained six baggies of a white powder substance, weighing a total of 2.8 grams. CP at 21, FF 6; Ex. 4. The Washington State Crime Laboratory tested only three of those baggies, but each tested positive for methamphetamine. Detectives also found another tin in the bedroom, which contained a substance later determined to be methamphetamine. Moreover, detectives discovered a safe in the room containing more baggies, a scale, a blue cloth, and a package labeled "accessory kit." CP at 21, FF 11; Ex. 5.

The State charged Goodman in its first information of "the crime of, POSSESSION WITH INTENT TO DELIVER A CONTROLLED SUBSTANCE, METHAMPHETAMINE." CP at 46. The information alleged Goodman, "in violation of RCW 69.50.401(a), did unlawfully possess with intent to deliver a controlled substance, to wit: Methamphetamine." Id. The parties stipulated the house was located within 1,000 feet of a local elementary school, which prompted the State to file an amended information. The amended information included the school zone allegation but phrased the violation of RCW 69.50.401(a) as "did knowingly and unlawfully possess a controlled substance with intent to deliver, to wit: meth." CP at 26.

Goodman waived his right to a jury and a bench trial was held on October 15, 2001, with the parties stipulating to the facts. The court found Detective Didion would testify that 3.5 grams (one-eighth of an ounce, otherwise known as an "eight-ball") was the upper-limit of personal consumption, yet it was still common for sales to involve quantities below that amount. The court relied on the August 7 sale which involved only 2.0 grams to infer the amount of methamphetamine found in Goodman's bedroom (2.8 grams) was consistent with the sale of methamphetamine. The court found the evidence seized from Goodman's room—the baggies, scale, individually packaged methamphetamine, and the linkage between the August 7 sale and the evidence from Goodman's bedroom—were "consistent with the sale of methamphetamine." CP at 22, FF 21. Though Goodman argued the evidence was insufficient to support the element of intent, the court found Goodman guilty of possession with intent to deliver methamphetamine in violation of former RCW 69.50.401(a). The court sentenced Goodman to 65 months, an enhanced sentence for violating the Uniform Controlled Substances Act within a protected zone.

Goodman appealed his conviction to Division Three of the Court of Appeals, which affirmed in a partially published opinion. The published portion of the opinion rejected Goodman's argument that the specific identity of the controlled substance is an essential element of possession with intent to deliver. Goodman, 114 Wash.App. at 604, 59 P.3d 696. The court characterized the issue as "unique," and held the State did not have to allege or prove the specific controlled substance possessed by the defendant. Id. at 604, 608, 59 P.3d 696. We granted Goodman's petition for review. 149 Wash.2d 1002, 67 P.3d 1096 (2003).

ISSUES

I. Whether the evidence was sufficient to convict Goodman of possession of methamphetamine with intent to deliver, and if not, whether Goodman's sentence enhancement for possession with intent to deliver within 1,000 feet of a school zone should be negated.

II. Whether the amended information was defective because it identified the specific controlled substance possessed by Goodman to be "meth" instead of "methamphetamine," and if so, whether Goodman can show he was prejudiced by the inartful language.

ANALYSIS

I. Sufficiency of the Evidence

We review the evidence in a light most favorable to the State to determine "whether ... any rational trier of fact could have found guilt beyond a reasonable doubt" where a criminal defendant challenges the sufficiency of the evidence. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992); see also State v. DeVries, 149 Wash.2d 842, 849, 72 P.3d 748 (2003)

; State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980). "[A]ll reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." 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." Id. Circumstantial evidence and direct evidence carry equal weight when reviewed by an appellate court. State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980). Moreover, "specific criminal intent of the accused may be inferred from the conduct where it is plainly indicated as a matter of logical probability." Id.

As a preliminary matter, Goodman attempts to raise three objections to the trial court's findings of fact. See Br. of Appellant at 8. However, he never assigned specific error to any of the trial court's findings. See Br. of Appellant at 1. A party must assign error to a finding of fact for it to be considered on review. See Eggert v. Vincent, 44 Wash.App. 851, 854, 723 P.2d 527 (1986)

. Indeed, Goodman stipulated to all evidence at trial. Consequently, the trial court's findings are verities on appeal. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994).

Moreover, RAP 10.3(g) provides in relevant part:

A separate assignment of error for each finding of fact a party contends was improperly made must be included with reference to the finding by number. The appellate court will only review a claimed error which is included in an assignment of error or clearly disclosed in the associated issue pertaining thereto.

(Emphasis added.) Even if we construed these objections as assignments of error, Goodman provides no argument to support his assertions, see Br. of Appellant at 9-15, and therefore waives the argument. Accord Milligan v. Thompson, 110 Wash.App. 628, 635, 42 P.3d 418 (2002)

("A party waives an assignment of error not adequately argued in its brief.").

Goodman makes one argument, though, that merits attention. He argues finding of fact 7 incorrectly references the amount of methamphetamine found in his bedroom to be 2.8 grams. That finding provides: "Three of those baggies were tested by the State Crime Laboratory. The test was positive for methamphetamine, with a weight of 2.8 grams." CP at 21, FF 7. The evidence clearly shows the aggregate weight of the six baggies was 2.8 grams but that the Washington State Crime Laboratory tested only three of those baggies for methamphetamine. See Ex. 4 (Wash. State Patrol Crime Lab Report). Thus, the State proved only three of those baggies contained methamphetamine. However, this does not change the result we reach.

At issue here is whether the evidence was sufficient to prove intent to deliver. Goodman argues the stipulated facts are insufficient to prove intent. The statutory elements of possession of controlled substance with intent to deliver are (1) unlawful possession of (2) a controlled substance with (3) intent to deliver. RCW 69.50.401(a)(1)(ii); State v. Atsbeha, 142 Wash.2d 904, 918, 16 P.3d 626 (2001); State v. Sims, 119 Wash.2d 138, 141, 829 P.2d 1075 (1992).

Goodman primarily argues "that a sizeable amount of drugs must be a starting point in any analysis of intent to deliver." Br. of Appellant at 11; Pet. for Review at 12-13. This argument lacks merit. First, it has never been suggested by...