WPIC 50.14 Possession with Intent to Manufacture Or Deliver a Controlled Substance—Elements

Use bracketed material as applicable.

Use WPIC 10.01 (Intent—Intentionally—Definition), WPIC 50.03 (Possession—Definition), WPIC 50.07 (Deliver—Definition), WPIC 50.12 (Manufacture—Definition), and WPIC 50.50 (Controlled Substance—Definition) with this instruction. As applicable, use WPIC 50.12 (Manufacture—Definition) and WPIC 50.07 (Delivery—Definition).

If it is alleged that the manufacture or 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 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).

Mental state—intent. Guilty knowledge is not an element of unlawful possession of a controlled substance with intent to manufacture or deliver because the elements of unlawful possession of a controlled substance with intent to manufacture or deliver include the requisite mental state, i.e., the intent to manufacture or deliver a controlled substance. State v. Sims, 119 Wn.2d 138, 829 P.2d 1075 (1992); State v. Johnson, 119 Wn.2d 143, 829 P.2d 1078 (1992); State v. Warnick, 121 Wn.App. 737, 90 P.3d 1105 (2004).

Inference as to intent. Evidence was insufficient to support a conviction for possession with intent to deliver when the cocaine the defendant was charged with possessing was only a trace amount, even though he possessed paraphernalia indicating he was a dealer. Such evidence would warrant only “an inference that the defendant intended to deliver cocaine not yet possessed, and such an inference will not support a conviction for possession with intent to deliver.” State v. Robbins, 68 Wn.App. 873, 876, 846 P.2d 585 (1993).

“Washington case law forbids the inference of an intent to deliver based on ‘bare possession of a controlled substance, absent other facts and circumstances.’” State v. Brown, 68 Wn.App. 480, 483, 843 P.2d 1098 (1993) (quoting State v. Harris, 14 Wn.App. 414, 418, 542 P.2d 122 (1975)) (possession, plus an officer's testimony that the quantity possessed was “in excess of the amount commonly possessed for personal use only,” was insufficient to support a conviction for possession with intent to deliver). See also State v. Vasquez, 178 Wn.2d 1, 309 P.3d 318 (2013). Sometimes, however, an intent to deliver can be inferred from evidence of an unusually large quantity of the drug. See State v. Wade, 98 Wn.App. 328, 340, 989 P.2d 576 (1999) (“It appears that at some point, the quantity of drugs could be large enough to raise an inference that the drugs were possessed with intent to distribute.”); State v. Hagler, 74 Wn.App. 232, 872 P.2d 85 (1994) (amount of substance, plus possession of significant amount of cash by juvenile, held sufficient).

Lesser included offenses. Possession of a controlled substance may be a lesser included offense of possession of a controlled substance with intent to manufacture or deliver. State v. Bickle, 153 Wn.App. 222, 222 P.3d 113 (2009). The court will make this decision after engaging in the two-pronged analysis in State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978). Neither possession of drug paraphernalia nor possession of a controlled substance with intent to deliver is a lesser included offense of the other. State v. Gocken, 127 Wn.2d 95, 896 P.2d 1267 (1995) (subsequent conviction of possession with intent to deliver not barred by prior plea to paraphernalia charge).

Alternative Means. If a defendant is charged with both possession with intent to manufacture and possession with intent todeliver, these are alternate means of committing the same crime. Jury unanimity is not required. State v. Huynh, 175 Wn.App. 896, 307 P.3d 788 (2013).

Specifying a particular controlled substance. The penalty for possession with intent to deliver 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 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).

Possession. See the Comment to WPIC 50.03 (Possession—Definition) for discussion of cases related to possession.