State v. Goodman

• Decision Date: 19 December 2002
• Docket Number: No. 20642-4-III.,20642-4-III.
• Citation: 59 P.3d 696,114 Wash.App. 602
• Parties: STATE of Washington, Respondent, v. Jay Lawrence GOODMAN, Appellant.
• Court: Washington Court of Appeals

59 P.3d 696

114 Wash.App. 602

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

No. 20642-4-III.

Court of Appeals of Washington, Division 3, Panel Eight.

December 19, 2002.

James E. Egan, Kennewick, WA, for Appellant.

Terry J. Bloor, Deputy Prosecuting Attorney, Kennewick, WA, for Respondent.

OPINION PUBLISHED IN PART

BROWN, C.J.

Following a bench trial, the Benton County Superior Court found Jay Goodman guilty of possession of a controlled substance, methamphetamine, with intent to deliver. The amended information alleged possession of "meth" rather than "methamphetamine." On appeal, Mr. Goodman mainly argues the identity of the involved controlled substance is an essential element of possession with intent to deliver. We decide for the first time it is not. We reject his other assignments of error in the unpublished portion of this opinion. Accordingly, we affirm.

FACTS

In August 2001, the State's first information alleged Jay Goodman "did unlawfully possess with intent to deliver a controlled substance, to wit: Methamphetamine[.]" Clerk's Papers (CP) at 46. On October 15, 2001 at the stipulated facts bench trial, the State filed, without objection, an amended information that alleged possession of "a controlled substance with intent to deliver, to wit: meth." CP at 26. The amended information added a school zone allegation.

Mr. Goodman stipulated to the school zone allegation, but argued the stipulated evidence did not produce sufficient indicia of intent to deliver; i.e., the amount of contraband was small, and there was no evidence of financial records, telephone lists, pagers, or other drug delivery paraphernalia. The trial court found Mr. Goodman guilty as charged and entered consistent findings of fact and conclusions of law. Mr. Goodman's sentence included a 24-month school zone enhancement. He appealed.

ANALYSIS

Sufficiency of Charging Document

The unique issue is whether the amended information was deficient because it described the controlled substance as "meth" rather than "methamphetamine."

"The Sixth Amendment to the United States Constitution and article I, section 22 (amend.10) of the Washington Constitution require that a charging document include all essential elements of a crime, statutory and nonstatutory, so as to inform the defendant of the charges against him and to allow him to prepare a defense." State v. Phillips, 98 Wash.App. 936, 939, 991 P.2d 1195 (2000) (citing State v. Hopper, 118 Wash.2d 151, 155, 822 P.2d 775 (1992); State v. Kjorsvik, 117 Wash.2d 93, 101-02, 812 P.2d 86 (1991); State v. Ralph, 85 Wash.App. 82, 84, 930 P.2d 1235 (1997)). "Therefore, an accused has a protected right, under our state and federal charters, to be informed of the criminal charge against him so he will be able to prepare and mount a defense at trial." State v. McCarty, 140 Wash.2d 420, 425, 998 P.2d 296 (2000) (citing State v. Bergeron, 105 Wash.2d 1, 18, 711 P.2d 1000 (1985)).

"Every material element of the charge, along with all essential supporting facts, must be put forth with clarity." McCarty, 140 Wash.2d at 425, 998 P.2d 296 (citing CrR 2.1(a)(1); Kjorsvik, 117 Wash.2d at 97, 812 P.2d 86). "An information omitting essential elements charges no crime at all." State v. Sutherland, 104 Wash.App. 122, 130, 15 P.3d 1051 (2001) (citing State v. Vangerpen, 125 Wash.2d 782, 795, 888 P.2d 1177 (1995); Phillips, 98 Wash.App. at 939-41, 991 P.2d 1195; State v. Hull, 83 Wash. App. 786, 802, 924 P.2d 375 (1996)).

The threshold question is whether the name of the concerned controlled substance is a necessary element when the State alleges a single count of possession of a controlled substance with intent to deliver. Mr. Goodman cites no authority in support of his argument that the State must name the "specific controlled substance charged." Appellant's Br. at 24. This is another way of asking whether the information must allege any specific controlled substance at all, our unique inquiry.

Division Two of this Court recognized the issue in the jury instruction context but did not resolve it, relying instead on the law of the case doctrine to determine evidence sufficiency. State v. Ong, 88 Wash.App. 572, 577-78, 945 P.2d 749 (1997). The Washington pattern jury instruction describing the relevant elements allows the trial court the option of using the general term "controlled substance" or the name of the specific controlled substance. 11 WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 50.06, at 644 (2d ed. 1994) (WPIC). But the WPIC drafters observed also "[i]t is not clear whether the defendant must know that the substance was a specific substance or whether the defendant must know that the substance was a controlled substance." Id. cmt. at 645. Division Two later held that the State need not allege and prove the defendant knew he was delivering a particular controlled substance. State v. Nunez-Martinez, 90 Wash.App. 250, 255-56, 951 P.2d 823 (1998).

Other jurisdictions vary on this issue. The Ohio Supreme Court held the drug trafficking statute of that state required the charging document to allege the specific controlled substance. State v. Headley, 6 Ohio St.3d 475, 453 N.E.2d 716, 720 (1983). The Ohio statute contained a general prohibition against "the selling, distribution, production or possession of certain controlled substances, or drugs, for certain purposes." Id. "The severity of the offense is dependent upon the type of drug involved." Id. Certain drugs would result in a conviction for "aggravated trafficking" while other drugs would result in the lesser offense of "trafficking in drugs." Id.

The Ohio court went on to reason the drug trafficking statute "sets forth more than one criminal offense with the identity of each being determined by the type of controlled substance involved." Id. "As such, the type of controlled substance involved constitutes an essential element of the crime which must be included in the indictment." Id. A dissenting justice called the majority's reading of the statute "hypertechnical," and reasoned "the nature of the drug involved does not affect the identity of the offense, only the degree of the felony." Id. at 721 (Holmes, J., dissenting). It appears no other state has adopted the Ohio court's holding.

By contrast, another appellate court held the identity of a specific drug was not an element of the offense of distribution of a controlled substance. Carter v. United States, 591 A.2d 233, 234 (D.C.1991). Interpreting the District of Columbia's version of the Uniform Controlled Substances Act (UCSA), which is similar to RCW 69.50.401, the Carter court noted the provision "does not define the offense in terms of distinctions between the distributions of varying controlled substances." Id. (citing D.C.Code § 33-541(a)(1) (1988)). A separate provision "provides penalties for violations with respect to controlled substances in various classifications." Id. at n. 1 (citing D.C.Code § 33-541(a)(2) (1988)). The Carter court reasoned that the identity of the involved controlled substance was "material only as to an applicable penalty." Id.

Elaborating further, the Carter court noted the UCSA "seeks to prohibit the manufacture and distribution of any controlled drug, and it does not require that the offender know what the particular unlawful drug is that he is selling." Id. (citing United States v. Lopez-Martinez, 725 F.2d 471, 474 (9th Cir.1984); United States v. Gonzalez, 700 F.2d 196, 200-01 (5th Cir.1983)). Accordingly, "all that is required under the UCSA is that one intentionally distribute a controlled substance." Id. at 235. Division Two of this Court relied on Carter and several additional cases from other jurisdictions in holding the State was not required to allege and prove the defendant knew he was delivering a particular controlled substance. Nunez-Martinez, 90 Wash.App. at 254-56,951 P.2d 823.

Turning now to Washington's Uniform Controlled Substances Act (UCSA), chapter 69.50 RCW, we note the primary goal of statutory interpretation is to ascertain the Legislature's intent. Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 9, 43 P.3d 4 (2002). Absent ambiguity, this Court derives the plain meaning "from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question." Id. at 11, 43 P.3d 4. If the appellate court's initial inquiry shows the statute is ambiguous, it may construe the meaning of the statute with the aid of other sources such as legislative history. Id. at 12, 43 P.3d 4.

Washington's UCSA provides generally that "it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance." RCW 69.50.401(a). A controlled substance is "a drug, substance or immediate precursor" listed in Schedules I through V of the statute. RCW 69.50.101(d). See also RCW 69.50.203-.212 (governing Schedules I through V).

The term of imprisonment imposed for violation of RCW 69.50.401(a) is five to ten years depending on the specific controlled substance underlying the offense. RCW 69.50.401(a)(1)(i)-(iii). The statute specifically provides that methamphetamine results in a 10-year sentence. RCW 69.50.401(a)(1)(ii). By contrast, the anabolic steroid, methandrostenolone, is an example of a Schedule III controlled substance resulting in a 5-year prison term. RCW 69.50.208(d)(14); RCW 69.50.401(a)(1)(iii). In this connection, Mr. Goodman refers to the sentencing provisions for the different types of controlled substances as class B or C felonies. But, the statute does not use the class B and C terminology; rather, it sets forth a core offense, with the sentence determined in accordance with the specific controlled substance. RCW 69.50.401(a). Accordingly, manufacturing, delivering, or possessing with intent to deliver is unlawful with respect to all controlled substances. RCW 69.50.401(a).

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