WPIC 50.06 Delivery of Controlled Substance—Elements

Use bracketed material as applicable. Use WPIC 10.02 (Knowledge—Knowingly—Definition), WPIC 50.07 (Deliver—Definition), and WPIC 50.50 (Controlled Substance—Definition) with this instruction. See the Comment below for a discussion regarding use of the bracketed options in element (2).

If it is alleged that the delivery of the controlled substance was authorized by law, use WPIC 52.03 (Delivery/Manufacture/Sale of a Controlled Substance Authorized by Law) with this instruction.

Use WPIC 50.14 (Possession with Intent to Manufacture or Deliver—Elements) instead of this instruction, if the charge is possession with intent to manufacture or deliver. See Comment.

Use WPIC 160.00 (Concluding Instruction—Special Verdict—Penalty Enhancements) and WPIC 50.61 (Enhanced Sentence—Controlled Substance Violations Under RCW 69.50.435—Special Verdict) with this instruction if it is alleged that the defendant should be subject to enhanced sentencing because the offense was committed in an area specified in RCW 69.50.435.

For a discussion of the phrase “this act” in element (3), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 69.50.401(1).

This instruction has been modified for this edition to comport with recent case law requiring that the jury find the specific substance is an essential element. State v. Gonzalez, 2 Wn.App.2d 96, 408 P.3d 743 (2018).

Specifying a particular controlled substance. The penalty for delivery of a controlled substance may vary, depending on the particular substance involved. Therefore, the substance must be proved whenever the type of substance is a factor in sentencing. State v. Goodman, 150 Wn.2d 774, 785–86, 83 P.3d 410 (2004). The “to convict” jury instruction must identify the controlled substance that was delivered. Failure to do so is a constitutional error that may be raised for the first time on appeal. State v. Clark-El, 164 Wn.App. 614, 384 P.3d 627 (2016) (reversal of sentencing). If the substance is not identified, the defendant may only be sentenced for the lowest offense within the class of offenses, a Class C felony for delivery of a controlled substance; a misdemeanor for possession of a controlled substance. State v. Rivera-Zamora, 7 Wn.App.2d 824, 435 P.3d 844 (2019); State v. Gonzalez, 2 Wn.App.2d 96, 408 P.3d 743 (2018). See also State v. Zillyette, 178 Wn.2d 153, 307 P.3d 712 (2013) (identity of controlled substance or schedule classification is a necessary element of controlled substances homicide).

Knowledge. Guilty knowledge, an understanding of the identity of the product being delivered, is an element of delivery of a controlled substance under RCW 69.50.401(1) even though such knowledge is not specified as an element in the statute. State v. Boyer, 91 Wn.2d 342, 588 P.2d 1151 (1979). The knowledge required is knowledge that the substance is a controlled substance, rather than knowledge of the specific substance. State v. Sibert, 168 Wn.2d 306, 230 P.3d 142 (2010); State v. DeVries, 149 Wn.2d 842, 72 P.3d 748 (2003); State v. Nunez-Martinez, 90 Wn.App. 250, 951 P.2d 823 (1998). See also State v. Kitchen, 61 Wn.App. 915, 812 P.2d 888 (1991) (holding that it is reversible error not to include guilty knowledge in an information charging delivery of a controlled substance).

It does not violate due process to give WPIC 10.02 (Knowledge—Knowingly—Definition) with this instruction, including the second paragraph permitting an inference of knowledge if the defendant has information that would lead a reasonable person in the same situation to believe facts exist that constitute a crime. State v. Sibert, 168 Wn.2d 306, 230 P.3d 142 (2010); State v. Vanoli, 86 Wn.App. 643, 937 P.2d 1166 (1997).

Lesser included offenses. Possession of a controlled substance may be a lesser included offense of delivery of a controlled substance. State v. Johnson, 59 Wn.App. 867, 802 P.2d 137 (1990), reversed on other grounds, 119 Wn.2d 143, 829 P.2d 1078 (1992); State v. Rodriguez, 48 Wn.App. 815, 740 P.2d 904 (1987). The court must analyze the elements of the offense and the evidence presented to determine whether a lesser included offense instruction is justified under State v. Workman, 90 Wn.2d 443, 584 P.2d 383 (1978); see also State v. Porter 150 Wn.2d 732, 82 P.3d 234 (2004) (specifically requiring that the lesser included offense arise from the same criminal act or transaction as the charged incident).

Authorized delivery. The statutory definition of this offense creates an exception for deliveries that are authorized by RCW Chapter 69.50. RCW 69.50.401(1). The State does not need to prove the lack of authorization; rather, the defendant has the burden of proving authorization by a preponderance of the evidence. For detailed discussion of this issue, see the Comment to WPIC 52.02 (Controlled Substance Obtained Directly From a Practitioner or Pursuant to a Valid Prescription).