State v. Nunez-Martinez
| Decision Date | 27 February 1998 |
| Docket Number | NUNEZ-MARTINE,A,No. 20692-7-II,20692-7-II |
| Citation | 951 P.2d 823,90 Wn.App. 250 |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent, v. Joseppellant. |
Antonio Salazar (Court appointed), Salazar Law Offices, Seattle, for Appellant.
Lisa Elizabeth Tabbut, Cowlitz Co. Pros. Office, Kelso, for Respondent.
Jose Nunez-Martinez was convicted of three counts of delivering a controlled substance. His presumptive sentence on one of the three counts was enhanced by 24 months due to a finding that he had delivered within 1,000 feet of a school bus route stop. He now argues that the charging document was defective because it failed to allege that he knew the substance he was delivering was amphetamine. He also argues that the evidence was insufficient to support the finding by reason of which his presumptive sentence was enhanced. We affirm.
In October and November 1995, an informant for the Cowlitz/Wahkiakum Narcotics Task Force made a series of controlled buys that included purchases of amphetamine on November 3, 1995, November 6, 1995, and November 22, 1995. Later, he identified the seller as Nunez-Martinez.
On February 21, 1996, the State charged Nunez-Martinez with three counts pertinent here. 1 In final amended form, those counts alleged:
COUNT III
The defendant, in the County of Cowlitz, State of Washington, on or about the 3rd day of November, 1995, did feloniously deliver amphetamine, knowing such substance to be a controlled substance; contrary to RCW 69.50.401(a) and against the peace and dignity of the State of Washington.
COUNT IV
The defendant, in the County of Cowlitz, State of Washington, on or about the 6th day of November, 1995, did feloniously deliver amphetamine, knowing such substance to be a controlled substance; contrary to RCW 69.50.401(a) and against the peace and dignity of the State of Washington.
COUNT V
The defendant, in the County of Cowlitz, State of Washington, on or about the 22nd day of November, 1995, in a protected zone, to wit: within one thousand feet of Longview School District No. 122's bus stop at 220 Baltimore, did feloniously deliver amphetamine, knowing such substance to be a controlled substance; contrary to RCW 69.50.401(a); RCW 69.50.435; RCW 9.94A.310(5) and against the peace and dignity of the State of Washington. 2
The matter proceeded to a jury trial, during which Nunez-Martinez moved to dismiss on the ground that the information, which alleged that he knew he was delivering a controlled substance, was deficient for not also alleging that he knew he was delivering amphetamine. The trial court denied the motion and instructed the jury that it could convict Nunez-Martinez if it found "(1) That on or about [the alleged date], the defendant delivered a controlled substance, to wit: amphetamine; (2) That the defendant knew it was a controlled substance; and (3) That the acts occurred in the State of Washington." 3 The jury returned general verdicts of guilty on Counts III, IV and V, and a special verdict finding that the delivery charged in Count V had occurred within 1,000 feet of a school bus stop. The trial court later imposed a standard range sentence of 87 months.
On appeal, Nunez-Martinez reiterates his argument that the information was deficient because it failed to allege that he knew he was delivering amphetamine. To be constitutionally adequate, an information must allege each element of the crime. 4 The elements of delivery are (1) delivery, and (2) "guilty knowledge." 5 Under existing Washington law, however, "[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." 6
State v. Boyer 7 imposed a guilty knowledge requirement to protect the innocent. It said:
The issue is whether guilty knowledge, an understanding of the identity of the product being delivered, is a part of the crime.... The language of the statute thus provides no guidance on the issue.... However, without the mental element of knowledge, even a postal carrier would be guilty of the crime were he innocently to deliver a package which in fact contained a forbidden narcotic. 8
In our view, the guilty knowledge required by Boyer is knowledge that the substance being delivered is a controlled substance. It is not knowledge of the substance's exact chemical or street name. As noted by the Wisconsin Supreme Court, there would seem to be little public purpose in "insulating from criminal liability those defendants who knowingly deal in prohibited controlled substances, but are ignorant, mistaken, or willing to misrepresent the exact nature or chemical name of the substance which they traffic." 9
Although Nunez-Martinez argues to the contrary, State v. Johnson 10 does not compel a contrary result. In that case, the information alleged that the defendant "did unlawfully deliver a controlled substance; to wit: cocaine." 11 The defendant sought dismissal based on the State's failure to allege guilty knowledge of any kind. The State responded (1) that "because the 'knowledge' element of unlawful delivery originated in case law rather than the statute, it need not appear in an information;" 12 and (2) that if the knowledge element had to appear, it was incorporated in the word "unlawfully." 13 In the course of rejecting these arguments, the Supreme Court did not consider whether a defendant must know not only that he or she is delivering a controlled substance, but also the exact chemical or street name of the substance.
In summary, we hold that the State was required to allege and prove that Nunez-Martinez knew he was delivering a controlled substance. It was not required to allege or prove that he knew he was delivering amphetamine, and the trial court did not err by denying the motion to dismiss.
Nunez-Martinez also argues that the trial court erred by imposing a school bus stop enhancement on Count V. A defendant's presumptive sentence is enhanced by 24 months if he or she delivers a controlled substance within 1,000 feet of "a school bus stop as designated on maps submitted by school districts to the office of the superintendent of public instruction." 14
Here, an employee of the Longview School District testified that the district sent a map to SPI in each year before 1995. In 1995, however, the District sent a computer disk that listed the longitude and latitude of each designated school bus stop. When converted to a printed document, the disk showed a school bus stop at 220 Baltimore Street, about 150 feet from the location of the delivery charged in Count V.
In our view, the disk was a map for purposes of RCW 69.50.435(f)(3); it listed the precise location of each school bus stop, just as a map would have, so it was the equivalent of a map for all intents and purposes. It described a school bus route stop at 220 Baltimore Street, and an officer testified that Nunez-Martinez delivered about 150 feet from that location. The evidence was sufficient to support the enhancement, and the trial court did not err by imposing it.
Affirmed.
1 The counts pertinent here are III, IV and V. The jury later acquitted the defendant on Counts I and II.
4 State v. Vangerpen, 125 Wash.2d 782, 787, 888 P.2d 1177 (1995); State v. Valdobinos, 122 Wash.2d 270, 283, 858 P.2d 199 (1993); State v. Johnson, 119 Wash.2d 143, 147, 829 P.2d 1078 (1992); State v. Kjorsvik, 117 Wash.2d 93, 101-02, 812 P.2d 86 (1991); State v. Wallway, 72 Wash.App. 407, 410-11, 865 P.2d 531 (1994).
5 RCW 69.50.401(a); State v. Boyer, 91 Wash.2d 342, 344, 588 P.2d 1151 (1979).
6 WPIC 50.06, Comment at 645 (2d ed.1994).
9 State v. Sartin, 200 Wis.2d 47, 546 N.W.2d 449, 456 (1996). Other jurisdictions agree with respect to delivery. See, e.g., Carter v. United States, 591 A.2d 233, 235 (D.C.App.1991) (); People v. Bolden, 62 Ill.App.3d 1009, 20 Ill.Dec. 79, 379 N.E.2d 912, 916 (1978) (); People v. James, 38 Ill.App.3d 594, 348 N.E.2d 295, 297-98 (1976) (); State v. Mendez, 42 N.C.App. 141, 256 S.E.2d 405, 409 (1979) (); State v. Barr, 90 S.D. 9, 237 N.W.2d 888, 893-94 (1976) ().
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State v. Goodman
...IV also carries a 10 year maximum. See RCW 69.50.401(a)(1)(i), (ii). 8. Nor is this result inconsistent with State v. Nunez-Martinez, 90 Wash.App. 250, 951 P.2d 823 (1998), where the court held the State did not have to allege or prove that the defendant knew he was delivering amphetamine. ......
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