State v. Johnson

• Decision Date: 18 December 1990
• Docket Number: No. 9810-9-III,9810-9-III
• Citation: 802 P.2d 137,59 Wn.App. 867
• Parties: STATE of Washington, Respondent, v. Clyde E. JOHNSON, Appellant.
• Court: Washington Court of Appeals

Page 867

59 Wn.App. 867

802 P.2d 137

STATE of Washington, Respondent, v. Clyde E. JOHNSON, Appellant.

No. 9810-9-III.

Court of Appeals of Washington,

Division 3, Panel Three.

Dec. 18, 1990.

James E. Egan, Kennewick, for appellant.

Dennis J. DeFelice, Pros. Atty., Pasco, for respondent.

THOMPSON, Judge.

Clyde Johnson appeals his conviction for delivery of cocaine. He contends: (1) the information was defective because it only alleged Mr. Johnson "unlawfully" delivered cocaine and did not specify that he knew the identity of the substance he delivered, (2) the court erred when it refused to instruct the jury that possession is a lesser included offense of delivery, (3) the court's knowledge instruction permitted an unconstitutional presumption, and (4) the court erred when it ordered him to pay $700 attorney fees for his court appointed attorney when the actual cost was allegedly less. We affirm.

On October 27, 1988, Mr. Johnson was arrested during a Tri-Cities Drug Task Force street sweep, targeting street-level dealers in the downtown areas of Kennewick, Pasco, and Richland. Detective Keith Sharp of the Kennewick Police Department and Philip Carpenter, a Benton County deputy sheriff, testified they were sitting in an unmarked vehicle when they observed Mr. Johnson approaching. Deputy Carpenter stated he held up his fingers, and Mr. Johnson asked him: "What do you want?" Deputy Carpenter told him "Coca", gave him $21, and Mr. Johnson went into a nearby pool hall. After a few minutes, Mr. Johnson came out of the pool hall. Deputy Carpenter met Mr. Johnson near the back of his vehicle. He testified Mr. Johnson told him, "it's your lucky day." Mr. Johnson then showed them the cocaine and made the comment it was good quality. At that time, Deputy Carpenter displayed his identification and told Mr. Johnson he was under arrest. Mr. Johnson began to pull away, and Detective Sharp and Deputy Carpenter had to wrestle him to the ground. During the struggle, Deputy Carpenter had hold of Mr. Johnson's forearm; Mr. Johnson opened his hand, and a bindle of cocaine fell onto the street.

In contrast, Mr. Johnson stated he had gone downtown to pawn a trumpet so he could buy necessities for his family. The undercover officers gestured to him. When they asked for drugs, he told them "no". According to Mr. Johnson, the officers insisted, and offered him $21. He took the money, and went inside the pool hall intending to leave through the back door. The back door was padlocked. He then bet on a crap game, to see if he could double the money. Instead, he lost all of it. He left by the front door, hoping to "take off", unnoticed by the officers. But one of them was standing at the rear of the vehicle. Mr. Johnson approached the officer, thinking he could make up a story or get them to drive him somewhere else to make the "buy". He never had a chance to do so, because Deputy Carpenter stuck a gun in his face and asked for the cocaine. He told them he did not have any cocaine, but they arrested him anyway.

In the information, the State charged Mr. Johnson with the crime of unlawful delivery of a controlled substance, a violation of RCW 69.50.401(a)(1)(i). The information alleged that he "unlawfully deliver[ed] a controlled substance; to-wit: cocaine, ...". An attached affidavit in support of probable cause recited that "the defendant sold a white powder" which "tested positive for cocaine in a field test." Before trial, Mr. Johnson unsuccessfully moved to dismiss the information because it failed to allege the guilty knowledge element of delivery.

At trial, the court refused Mr. Johnson's proposed instructions 9, 10, 12, and 14, defining possession as a lesser included offense of delivery of a controlled substance. The court gave the following instruction over Mr. Johnson's objection:

If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.

The jury returned a guilty verdict.

The judgment against Mr. Johnson provides:

3. Defendant shall pay to the Clerk of this Court:

....

(d) $700.00 Court appointed attorney's fees

....

Commencing with the first full month after release from prison, defendant shall pay not less than $50 per month to the Clerk of this Court until the total monetary obligation is paid in full.

Defense counsel objected, arguing that he was paid $4,000 by the County for 15 cases, or $265 a case.

First, Mr. Johnson contends the information should have been dismissed because it did not specifically allege the guilty knowledge element of the crime of delivery of a controlled substance.

"The constitutional right of the accused 'to be informed of the nature and cause of the accusation' against him requires that every material element of the offense be charged with definiteness and certainty." 2 C. Torcia, Wharton on Criminal Procedure § 238, at 69 (13th ed. 1990). "[T]he legal requirements relating to pleading ... are designed to facilitate the adversary process by ensuring that the accused has the information needed to fully present his defense." 2 W. LaFave & J. Israel, Criminal Procedure § 19.1, at 434 (1984). In Washington,

[t]he indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.

(Italics ours.) CrR 2.1(b). See also State v. Leach, 113 Wash.2d 679, 689, 782 P.2d 552 (1989).

RCW 69.50.401(a) defines the crime of unlawful delivery of a controlled substance as follows: "Except as authorized by this chapter, it is unlawful for any person to ... deliver ... a controlled substance." The statute does not expressly include an intent requirement. In State v. Boyer, 91 Wash.2d 342, 344, 588 P.2d 1151 (1979), the court held that guilty knowledge, an understanding of the identity of the product being delivered, is intrinsic to the definition of the crime of delivery. However, in a subsequent decision, the Supreme Court summarily rejected the argument that an information which merely alleges unlawful delivery is defective. State v. Smith, 104 Wash.2d 497, 509, 707 P.2d 1306 (1985). The court stated:

The defendant ... raises this issue initially on appeal. He has shown no prejudice or any lack of understanding of the charge against him. The information was not unconstitutionally vague. It will not be considered on appeal. RAP 2.5(a); Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wn.2d 230, 588 P.2d 1308 (1978).

Smith, 104 Wash.2d at 509, 707 P.2d 1306.

A recent decision of Division One of the Court of Appeals also addresses this issue. In State v. Sims, 59 Wash.App. 127, 796 P.2d 434 (1990), the information charged the defendant with unlawfully possessing a controlled substance with intent to deliver; it failed to allege guilty knowledge. Sims quoted State v. Strong, 56 Wash.App. 715, 718-19, 785 P.2d 464, review denied, 114 Wash.2d 1022, 792 P.2d 533 (1990):

However, by definition, a complaint stated in the language of a statute defining a crime states a crime. See State v. Thomas, 73 Wn.2d [729, 731, 440 P.2d 488 (1968) ]. A mental state which is an implied element of the crime as defined by statute is also an implicit part of the charge. Where there is a well-established rule implying the requisite mental state as an element of the crime, its omission from the information is of no significance. See State v. Bower, 28 Wn.App. 704, 707 n. 2, 626 P.2d 39 (1981). Thus, an information need not allege implied elements of the crime if it follows the language of the statute and is sufficient to apprise the accused with reasonable certainty of the nature of the accusation. See [State v.] Smith, 49 Wn.App. [596, 599, 744 P.2d 1096 (1987) ] (holding that the court-implied element of knowledge was not a necessary part of an information charging possession of stolen property), [review denied, 110 Wn.2d 1007 (1988) ]; State v. Bower, supra (information charging the defendant with preventing a prison guard from performing his duties need not include the element of intent); State v. Orsborn, 28 Wn.App. 111, 114, 626 P.2d 980 (1980) (information charging negligent homicide need not include requirement that the victim's death be a proximate result of the injuries received in the accident), review denied, 97 Wn.2d 1012 (1982).

Sims, 59 Wash.App. at 131, 796 P.2d 434. Thus, Sims held that the information was sufficient. Sims, 59 Wash.App. at 133, 796 P.2d 434.

Mr. Johnson argues that Smith and Sims are distinguishable, because in those cases the defendants waited until their appeals before they challenged the sufficiency of their informations. Here, Mr. Johnson raised this issue before trial. Some courts have used a stricter standard to test the sufficiency of an information when the question is raised for the first time on review. See, e.g., State v. Smith, 49 Wash.App. 596, 598, 744 P.2d 1096 (1987), review denied, 110 Wash.2d 1007 (1988). Those courts hold an information is immune from attack unless it is so obviously defective it does not charge the offense by any reasonable construction. Smith, 49 Wash.App. at 598, 744 P.2d 1096. However, a different standard of review does not aid Mr. Johnson. Under both Smith, 104 Wash.2d 497, 707 P.2d 1306, and Sims, an information which charges a crime in the language of RCW 69.50.401(a) is sufficient, and it is not necessary to include the nonstatutory element of guilty knowledge. Although Sims noted the stricter standard set forth in Smith, 49 Wash.App. at 598, 744 P.2d 1096, the decision there did not turn on the fact that the defendant raised the issue for the first time on appeal.

We are bound by the Supreme Court's decision in Smith, 104 Wash.2d 497, 707 P.2d 1306, and are persuaded the analysis in Sims is correct. The court did not err in refusing to dismiss the information.

Second,...