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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


THE STATE OF WASHINGTON,                 )       No. 75770-9-1
                                         )
                     Respondent,         )
                                         )       DIVISION ONE
                     v.                  )
                                         )
AIDARUS MOHAMUD IBRAHIM,                 )       UNPUBLISHED OPINION
                                         )
                    Appellant.           )       FILED: January 16, 2018
                                         )

       MANN, J. —Aidarus Ibrahim appeals his sentence for possession of a controlled

substance. Ibrahim was charged and sentenced for possession with intent to distribute

cocaine, a class B felony. The to-convict instruction did not identify cocaine as the

substance at issue. A to-convict instruction must include all essential elements of the

crime charged. When a defendant is charged with possession with intent to deliver a

controlled substance, the identity of the substance is an essential element of the crime if

the specific substance increases the maximum sentence the defendant will face upon

conviction. Consistent with this court's opinion in State v. Clark-El, 196 Wn. App. 614,

384 P.3d 627(2016), we affirm Ibrahim's conviction for possession with intent to deliver

a controlled substance, but reverse and remand for resentencing.
No. 75770-9-1/2

                                                  FACTS

        On September 4, 2015, Seattle police officers arrested Ibrahim after a detective

observed Ibrahim conduct what appeared to be a sale of cocaine. Ibrahim was charged

with a violation of the Uniform Controlled Substances Act, RCW 69.50.401(1),(2)(a), for

possession "with intent to manufacture or deliver cocaine, a controlled substance and a

narcotic drug."

        The jury returned a verdict finding Ibrahim "guilty of the crime of possession with

intent to deliver a controlled substance as charged." The trial court entered a judgment

of guilty of possession "with intent to manufacture or deliver cocaine." Ibrahim was then

sentenced to a residential drug offender sentence alternative(DOSA) under RCW

9.94A.660. Ibrahim appeals his sentence.

                                                ANALYSIS

        Ibrahim does not argue that the incorrect instruction was reversible error, instead

he argues that the jury's verdict does not support the sentence for possession of

cocaine, when the to-convict instructions did not specify which controlled substance was

possessed.1 Ibrahim relies on this court's recent decision in Clark-El, 196 Wn. App.

614.

        We review alleged error in jury instructions de novo. State v. Sibert, 168 Wn.2d

306, 311, 230 P.3d 142(2010). "A to-convict instruction must include all essential

elements of the crime-charged." Clark-El, 196 Wn. App. at 618; State v. Smith, 131

Wn.2d 258, 263, 930 P.2d 917(1997); State v. Emmanuel, 42 Wn.2d 799, 819, 259


           Although Ibrahim did not object to the to-convict instruction at trial, omitting an element from a
to-convict instruction is an error "of sufficient constitutional magnitude to warrant review when raised for
the first time on appeal." State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415(2005).


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No. 75770-9-1/3

P.2d 845 (1953). If the identity of the controlled substance increases the statutory

maxim urn sentence the defendant may face upon conviction, that identity is an essential

element of the crime. Clark-El, 196 Wn. App. at 618 (citing State v. Goodman, 150

Wn.2d 774, 778, 83 P.3d 410(2004)); Sibert, 168 Wn.2d at 311-12. Possession with

intent to deliver cocaine is a class B felony, punishable by a sentence of up to 10 years.

Possession with intent to deliver other controlled substances are class C felonies,

punishable by up to 5 years. RCW 9A.20.021(1); RCW 69.50.206(b)(4); RCW

69.50.401(2).

       Despite it being well settled law, the to-convict instruction given to the jury in

Ibrahim's case did not require proof that the controlled substance possessed by Ibrahim

was cocaine. Jury instruction 8 provided:

            To convict the defendant of the crime of possession with intent to
       deliver a controlled substance, each of the following elements of the crime
       must be proved beyond a reasonable doubt:

        (1) That on or about September 491, 2015, the defendant possessed a
            controlled substance;

        (2) That the defendant possessed the substance with the intent to deliver
            a controlled substance; and

        (3) That this act occurred in the State of Washington.

       In Clark-El, the trial court used a substantially similar to-convict instruction that

also omitted the name of the specific substance, in that case methamphetamine.

Possession with intent to deliver methamphetamine is also a class B felony under RCW

69.50.40(2)(b). The jury found the defendant guilty under that to-convict instruction.

The trial court then entered the final judgment finding Clark-El guilty of delivery of

methamphetamine and sentenced him for that offense. Clark-El, 196 Wn. App. at 618.


                                              3
No. 75770-9-1/4

        The sentencing judge imposed a sentence as if the jury had found Clark-
        El delivered methamphetamine, a class B felony, when the only finding
        stated in the verdict was that Clark-El was guilty of the crime of delivery of
        a "controlled substance." That crime is a class C felony when not
        otherwise specified. The jury's finding that Clark-El delivered an
        unidentified "controlled substance" authorized the court to impose only the
        lowest possible sentence for delivery of a controlled substance.

Clark-El, 196 Wn. App. at 624.

        Although the State acknowledges this court's decision in Clark-El, it urges we

affirm the sentence based on Sibert. In Sibert, a plurality2 of the Washington Supreme

Court held the omission of the specific controlled substance in the to-convict instruction

was not error, in part, because:

        each of the "to convict" jury instructions began by stating "Rjo convict the
        Defendant. . . of the crime of Delivery of a Controlled Substance as
        charged... ." This reference to the charging document impliedly
        incorporates the language "to-wit: Methamphetamine" into the "to convict"
        instructions.

Sibert, 168 Wn.2d at 312. The State argues, based on Sibert, Ibrahim's sentence was

authorized by the jury's verdict because the verdict found Ibrahim "guilty of the crime of

possession with intent to deliver a controlled substance as charged."3

        While the State is correct that the "as charged" language was included in

Ibrahim's jury verdict, that does not remedy the error in the to-convict instruction. As

noted in Clark-El: "[t]tle Sibert plurality based its holding, in part, on the fact that 'as

charged' language appeared in the to-convict instruction." Clark-El, 196 Wn. App. at

619(emphasis added). Here, as in Clark-El, the to-convict instruction did not include



         2 A plurality opinion has limited precedential value and is not binding on the courts. In re Pers.
Restraint of Isadore, 151 Wn.2d 294, 302, 88 P.3d 390 (2004). As we explained in Clark-El, with respect
to Sibert, "It is not possible to assess the correct holding of an opinion signed by four justices when as
here, the fifth vote concurring in the result only, is unaccompanied by an opinion. Clark-El, 196 Wn. App.
at 620.
         3(Emphasis added.)


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No. 75770-9-1/5

the "as charged" language. Including "as charged" in the verdict, but not in the to-

convict instruction is insufficient.

         "The jury has a right to regard the 'to convict' instruction as a complete statement

of the law and should not be required to search other instructions in order to add

elements necessary for conviction." State v. Mills, 154 Wn.2d 1, 8, 109 P.3d 415(2005)

(internal quotations omitted); Smith, 131 Wn.2d at 263. "It cannot be said that a

defendant has had a fair trial if the jury must guess at the meaning of an essential

element of a crime or if the jury might assume that an essential element need not be

proved." Smith, 131 Wn.2d at 263. The type of controlled substance was an essential

element, and its omission allowed the jury to assume it need not be proved. This was

error.

         As in Clark-El, the jury's finding that Ibrahim possessed and delivered an

unidentified "controlled substance" authorized the trial court "to impose only the lowest

possible sentence for delivery of a controlled substance." Clark-El, 196 Wn. App. at

624.

         Ibrahim's conviction is affirmed. The sentence is reversed. We remand for

resentencing.



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WE CONCUR:


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