WPIC 300.14 Aggravating Circumstance—Major Violation of the Uniform Controlled Substances Act [...
11A WAPRAC WPIC 300.14Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 300.14 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part XVI. Exceptional Sentences—Aggravating Circumstances
WPIC CHAPTER 300. Exceptional Sentences—Aggravating Circumstances
WPIC 300.14 Aggravating Circumstance—Major Violation of the Uniform Controlled Substances Act [RCW 9.94A.535(3)(e)]
A major trafficking violation of the Uniform Controlled Substances Act is one which is more onerous than the typical offense. The presence of any of the following factors may identify [this offense] [the offense charged in Count ] as a major trafficking violation:
[Whether the offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so;]
[Whether the offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use;]
[Whether the offense involved the manufacture of controlled substances for use by other parties;]
[Whether the circumstances of the offense reveal that the defendant occupied a high position in the drug distribution hierarchy;]
[Whether the offense involved a high degree of sophistication or planning, occurred over a lengthy period of time, or involved a broad geographic area of distribution;] [or]
[Whether the defendant used [his] [her] position or status to facilitate the commission of the offense, including positions of trust, confidence, or fiduciary responsibility [such as a position as a pharmacist, physician, or other medical professional]].
NOTE ON USE
For the VUCSA aggravating circumstance, use the above instruction to supplement the primary statement of this aggravating circumstance, which appears in WPIC 300.02 (Aggravating Circumstance Procedure—Factors Alleged—Unitary Trial) or WPIC 300.06 (Aggravating Circumstance Procedure—Factors Alleged—Bifurcated Trial or Stand-Alone Sentencing Proceeding).
Use the bracketed material as applicable.
Use WPIC 300.22 (Aggravating Circumstance—Sophistication or Planning), as applicable.
COMMENT
RCW 9.94A.535(3)(e).
Statute. The statutory language for the aggravating circumstance of a major VUCSA violation reads as follows:
Statutory interpretation. The statute is not clear on what needs to be proved to establish this aggravating circumstance. There are three different ways that the statute can be construed.
Under the first possible construction, the state is required to prove only one fact: “a major violation of the Uniform Controlled Substances Act.” This construction interprets the word “which” as an explanation rather than a restriction—which is grammatically correct. In other words, “more onerous than typical” is a description of “a major violation,” not an additional fact that the state must prove. Subdivisions (i) through (vi) are viewed as examples of facts that allow but do not require a finding of “a major violation.”
Under the second possible construction, the state is required to prove two facts: (1) a major violation of the Uniform Controlled Substances Act; and (2) that the violation is “more onerous than the typical offense of its statutory classification.” This construction prevents the latter phrase from being superfluous by interpreting the “which” as meaning “that.” Like the first construction, this treats subdivisions (i) through (vi) as illustrative examples.
Under the third possible construction, the state is only required to prove one of the factual situations set out in subdivisions (i) though (vi). This interprets the statutory references to both “a major violation” and “more onerous than typical” as descriptive of these situations. This is supported by the statement that “ANY” of these situations may identify an offense as a major VUCSA. (The Legislature set out this word in all capital letters.) It is also supported by RCW 9.94A.537(4), which deals with bifurcated trials. That statute refers to subdivision (e)(iv) as if it were a distinct aggravating circumstance. (RCW 9.94A.535(3)(e)(iv) allows a finding of a major VUCSA if “[t]he circumstances of the current offense reveal the offender to have occupied a high position in the drug distribution hierarchy.”)
RCW 9.94A.535(3)(e) is substantially identical to language that has been in effect since 1986. Laws of 1986, Chapter 257, § 27(2)(d) (effective June 11, 1986). Despite this, case law provides little help towards resolving the ambiguity in the provision. The WPI Committee has chosen to adhere as closely as possible to the statutory language. An instruction similar to this pattern instruction was upheld in State v. Huynh, 175 Wn.App. 896, 307 P.3d 788 (2013).
Statutory history. The aggravating circumstance for major VUCSA offenses has been part of the Sentencing Reform Act since the act was first adopted in 1981. See former RCW 9.94A.390(2)(d). It was renumbered as RCW 9.94A.390(2)(e) in 1996.
Proof. Case law establishes that only one of the six factors must be proved to justify an exceptional sentence. State v. Solberg, 122 Wn.2d 688, 707, 861 P.2d 460 (1993).
Additional crime. This aggravating circumstance is an exception to the rule against basing an exceptional sentence on facts that establish additional crimes. See generally, Fine, 13B Washington Practice, Criminal Law and Sentencing § 47:7 (3d ed.).
Wording of instruction. The WPI Committee has modified the fifth factor from the statutory language by substituting the word “distribution” for the word “disbursement.” Dictionary definitions of “disbursement” universally refer to the payment of money, especially from a particular fund. “Distribution” relates to delivery of the substance over a broad geographic area and thus avoids confusion and more precisely expresses the clear legislative intent.
Unitary versus bifurcated proceedings. With one exception, the statutory presumption is that the aggravating circumstance for major VUCSA offenses will be presented to the jury during the trial of the alleged crime. RCW 9.94A.537(4).
The exception is for major VUCSA offenses with an allegation that the defendant was in a “high position in the drug distribution hierarchy.” For this category of major VUCSA offenses, the statutory presumption is that the aggravating circumstance will be presented to the jury in a separate, post-verdict proceeding. RCW 9.94A.537(4). This presumption may be overcome if the evidence supporting this aggravating circumstance is part of the res gestae of the charged crime, if the evidence is otherwise admissible in trial of the charged crime, and if the court finds that the probative value of the evidence of the aggravating circumstance is not substantially outweighed by its prejudicial effect on the jury's ability to determine guilt or innocence for the underlying crime.
Cross-reference. For further discussion of this aggravating circumstance, see Fine, 13B Washington Practice, Criminal Law and Sentencing, section 47:7 (3d ed.).
[Current as of April 2019.]
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