WPIC 50.16 Sale of Controlled Substance—Elements

Use bracketed material as applicable. Use this instruction only for those controlled substances to which it applies. See Comment below. Use WPIC 50.50 (Controlled Substance—Definition), WPIC 10.02 (Knowledge—Knowingly—Definition), and WPIC 50.17 (Sell/Price/For Profit—Definition) with this instruction.

If it is alleged that the sale 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 (4), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 69.50.410(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).

The statute on sale for profit applies to those controlled substances listed in Schedule I, RCW 69.50.204, except leaves and flowering tops of marijuana.

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 address whether guilty knowledge is also a nonstatutory element of sale of a controlled substance under RCW 69.50.410(1). However, dicta in several cases implies that guilty knowledge may be an element of sale of a controlled substance. Two cases 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. See State v. Hartzog, 26 Wn.App. 576, 615 P.2d 480 (1980), reversed in part on other grounds, 96 Wn.2d 383, 635 P.2d 694 (1981); State v. Smith, 17 Wn.App. 231, 562 P.2d 659 (1977). 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. Also see State v. Turner, 78 Wn.2d 276, 474 P.2d 91 (1970); State v. Warnick, 121 Wn.App. 737, 90 P.3d 1105 (2004).

Specifying a particular controlled substance. The penalty for crimes involving a controlled substance may vary. 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).