WPIC 50.11 Manufacture of Controlled Substance—Elements

Use bracketed material as applicable. Use WPIC 10.02 (Knowledge—Knowingly—Definition), WPIC 50.12 (Manufacture—Definition), and WPIC 50.50 (Controlled Substance—Definition) with this instruction.

If it is alleged that the manufacture 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). The instruction has been revised for this edition.

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).

Unlawfulness. The statutory definition of the offense sets forth an exception for conduct that is otherwise authorized by RCW Chapter 69.50. See RCW 69.50.401(1). It is the defendant's burden to prove such authorization, not the State's burden to prove the lack of authorization. The instruction for the defendant's burden of proof is set forth in WPIC 52.03 (Delivery/Manufacture/Sale of a Controlled Substance Authorized by Law).

Knowledge. In State v. Boyer, 91 Wn.2d 342, 588 P.2d 1151 (1979), the court held that 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 included as an element in the statute. Boyer did not specifically address whether guilty knowledge is also an element of manufacture of a controlled substance under RCW 69.50.401(1). However, dicta in several cases implies that guilty knowledge is a nonstatutory element of manufacture of a controlled substance. Both State v. Hartzog, 26 Wn.App. 576, 615 P.2d 480 (1980), affirmed in part, reversed on other grounds, 96 Wn.2d 383, 635 P.2d 694 (1981), and State v. Smith, 17 Wn.App. 231, 562 P.2d 659 (1977), suggest that offenses relating to the trafficking of narcotic drugs, such as the manufacture, delivery or sale of controlled substances, involve conduct of moral turpitude and as such are mala in se offenses. Generally, “guilty knowledge will be deemed an essential ingredient” of a malum in se offense even though the Legislature has not included “guilty knowledge” as a specific statutory element. See State v. Smith, 17 Wn.App. at 234. See also State v. Turner, 78 Wn.2d 276, 474 P.2d 91 (1970); State v. Warnick, 121 Wn.App. 737, 90 P.3d 1105 (2004) (approving WPIC 50.11).

Specifying a particular controlled substance. The maximum penalty for a drug offense may vary, based upon the substance. 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 manufactured. 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 manufacture of a controlled substance, delivery of a controlled substance or possession with intent to deliver; 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).