       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                               No. 73523-3-1
                     Respondent,
                                               DIVISION ONE
                v.

                                               PUBLISHED OPINION
RANDOLPH CARTIER CLARK-EL,
                                               FILED: November 7, 2016
                     Appellant.


       Becker, J. — When a defendant is charged with delivering a controlled

substance, the identity of the substance is an essential element that must be

stated in the to-convict instruction if it increases the maximum sentence the

defendant will face upon conviction. In such a case, omission of the essential

element is subject to harmless error analysis as to the conviction but not as to

the sentence.


                                       FACTS

       Police officers were conducting undercover drug law enforcement in

Bellingham on the evening of October 30, 2014. One of the officers testified that

he approached a man on the street and asked "if he had any clear, which is

street slang for methamphetamine." Agreement was reached on the price of

$20. The officer handed over the cash, and the seller "gave me a small bag

containing what appeared to be methamphetamine. . . . Clear, shard-like

substance." The officer put the drugs in his left sock and later did a field test that
No. 73523-3-1/2



indicated the drugs were methamphetamine. The drugs were booked into

evidence and sent to the Washington State Patrol for forensic analysis.

       The officers recognized the man from previous encounters and identified

him as Randolph Clark-El. Police arrested Clark-El some weeks later, after they

had concluded their undercover operation.

       The State charged Clark-El with one count of delivery of a controlled

substance, "to-wit: Methamphetamine . .. which violation is a class B felony."

During a short jury trial, Clark-El did not testify and he did not attempt to

undermine the evidence that a sale of methamphetamine had taken place. His

defense was that the officers misidentified him as the seller. The jury returned a

verdict finding him guilty of the crime of delivery of a controlled substance. The

court entered a judgment of guilty of delivery of a controlled substance under

RCW 69.50.401 (2)(b) (methamphetamine, a class B felony) and sentenced him

for that offense.

       Clark-El appeals. He contends his conviction and sentence must be

reversed because the to-convict instruction did not identify the substance he was

accused of selling.

                      OMISSION OF ESSENTIAL ELEMENT

       A to-convict instruction must include all essential elements of the crime

charged. State v. Shelley Sue Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997),

citing State v. Emmanuel, 42 Wn.2d 799, 819, 259 P.2d 845 (1953). When the

identity of a controlled substance increases the statutory maximum sentence

which the defendant may face upon conviction, that identity is an essential
No. 73523-3-1/3



element. State v. Goodman, 150 Wn.2d 774, 778, 83 P.3d 410 (2004); State v.

Sibert. 168 Wn.2d 306, 311-12, 230 P.3d 142 (2010) (plurality opinion). Crimes

involving methamphetamine are class B felonies, punishable by sentences up to

10 years, whereas crimes involving certain other controlled substances are class

C felonies, punishable by sentences up to 5 years. RCW 69.50.401 (2)(b), (c);

RCW 9A.20.021. Under Goodman and Sibert. the identity of the controlled

substance allegedly sold by Clark-El was an essential element in this case.

      Despite this well-settled law, the to-convict instruction did not require proof

that the controlled substance delivered was methamphetamine.

             To convict the defendant of the crime of delivery of a
      controlled substance, each of the following elements of the crime
      must be proved beyond a reasonable doubt:
                     (1) That on or about the 30th day of October 2014,
                         the defendant delivered a controlled substance;
                     (2) That the defendant knew that the substance
                         delivered was a controlled substance; and
                     (3) That the acts occurred in the State of
                         Washington.

      Although Clark-El did not object to the instruction at trial, he is entitled to

review. 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). Our review is de

novo. State v. Brooks. 142 Wn. App. 842, 848, 176 P.3d 549 (2008); Sibert. 168

Wn.2d at 311-12 (plurality opinion).

       In Sibert, a four-justice plurality of our Supreme Court held that the failure

to specify methamphetamine in the to-convict instruction was not error when (1)

the to-convict instruction "incorporated the drug identity by reference to the
No. 73523-3-1/4



charging document, which specified methamphetamine," and (2) "that drug and

only that drug was proved at trial." Sibert. 168 Wn.2d at 309-10, 317 (plurality

opinion). With the additional vote of a fifth justice who concurred in the result

only, the plurality affirmed the defendant's conviction and sentence.

       Sibert does not compel us to hold that the instruction was free of error.

The Sibert plurality based its holding, in part, on the fact that "as charged"

language appeared in the to-convict instruction. The to-convict instruction here

did not include equivalent language. More significantly, 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). 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. Kailin v.

Clallam County, 152 Wn. App. 974, 985, 220 P.3d 222 (2009). Shelley Sue

Smith, Emmanuel, and Mills continue to be leading cases holding that it is error

to give a to-convict instruction that does not contain all elements essential to the

conviction. Following those cases, we find error.

       The error does not necessarily require reversal of the conviction for

delivery of methamphetamine. Under the federal constitution, an erroneous jury

instruction may be subject to harmless error analysis. Neder v. United States,

527 U.S. 1, 4, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999); State v. Brown, 147

Wn.2d 330, 332, 58 P.3d 889 (2002), following Neder. A jury instruction that

omits an essential element is harmless if it appears beyond a reasonable doubt

the error did not contribute to the verdict. Brown, 147 Wn.2d at 341. The omitted
No. 73523-3-1/5



element must be supported by "uncontroverted evidence," and the reviewing

court must be able to "'conclude beyond a reasonable doubt that the jury verdict

would have been the same absent the error.'" Brown, 147 Wn.2d at 341, quoting

Neder, 527 U.S. at 19.

        Here, methamphetamine was the only controlled substance the

prosecution proved. Neither the State nor the defense suggested that the

substance the undercover officer purchased was anything except

methamphetamine. Using the Neder harmless error test, we conclude the jury's

verdict would necessarily have been the same if the to-convict instruction had

specified methamphetamine.

       Clark-El argues it is inconsistent with the Washington Constitution to apply

harmless error analysis to the omission of an essential element from the to-

convict instruction. He contends the error is reversible per se under state law.

       States are free to interpret their constitutions as providing greater

protection to individual rights than the federal constitution provides. State v.

Gunwall, 106 Wn.2d 54, 59, 720 P.2d 808 (1986). The Washington Constitution

has a provision that, like the Sixth Amendment, guarantees the right to an

impartial jury. Wash. Const, art. I, § 22. It also has a separate section providing

that the right of trial by jury "shall remain inviolate." Wash. Const, art. I, § 21.

With the distinct language of article I, section 22, our constitution is more

protective of the jury trial right than is the federal constitution. State v. Russell L

Smith. 150Wn.2d 135, 151. 75 P.3d 934 (2003). cert, denied. 541 U.S. 909

(2004). The scope of the right "must be determined from the law and practice
No. 73523-3-1/6



that existed in Washington at the time of our constitution's adoption in 1889."

Russell L Smith. 150 Wn.2d at 151.

       It has not been decided whether the scope of Washington's jury trial right

is broad enough to preclude absolutely a conviction obtained in a jury trial when

the jury was not instructed on an essential element of the crime. In Sibert, as in

Brown, the decision to affirm the convictions did not rest upon an analysis of the

state constitution.1

       Justice Sanders, dissenting in Sibert, addressed the issue of harmless

error analysis under the state constitution when he argued that our constitution

and precedent "favor the pre-Brown paradigm" of automatic reversal whenever

an essential element is omitted in a to-convict instruction. Sibert, 168 Wn.2d at

329 (Sanders, J., dissenting). But Justice Sanders' dissent did not discuss

Washington law and practice at the time the state constitution was adopted.

       Justice Fairhurst has addressed the issue in two dissenting opinions,

State v. Williams-Walker. 167 Wn.2d 889, 902-20, 225 P.3d 913 (2010)

(Fairhurst, J., dissenting), and State v. Recuenco. 163 Wn.2d 428, 442-47, 180

P.3d 1276 (2008) (Fairhurst, J., dissenting). In both cases, the majority found

that a firearm enhancement imposed by the trial court at sentencing exceeded

the authority provided by the jury's special findings, a type of error that can never

be harmless. Williams-Walker, 167 Wn.2d at 902; Recuenco, 163 Wn.2d at 440-



       1 An examination of the briefs in Sibert discloses that the parties in that
case did not raise or brief a Gunwall issue. See briefs filed in State v. Sibert, No.
79509-6 (Wash.),
http://www.courts.wa.gov/appellate trial courts/coaBriefs/index.cfm?fa=coabriefs
•briefsBvCase&courtld=A08.
No. 73523-3-1/7



42. Justice Fairhurst, on the other hand, classified the error in question in

Williams-Walker as "the trial court's failure to submit a firearm determination to

the jury," a type of error that would be subject to a harmless error analysis under

Neder. Williams-Walker. 167 Wn.2d at 913 (Fairhurst, J., dissenting).

Accordingly, she went on to determine an issue that the majority opinions did not

confront—"whether such an error is subject to a harmless error analysis under

state law." Williams-Walker, 167 Wn.2d at 913 (Fairhurst, J., dissenting). This is

the same issue that Clark-El presents for our consideration.

       Clark-El cites a single case from the statehood era, McClaine v. Territory,

1 Wash. 345, 354-55, 25 P. 453 (1890), in an effort to demonstrate that at the

time, it was understood in law and practice that omission of an element from the

to-convict instruction required reversal even if the outcome would have been the

same with a complete instruction. Justice Fairhurst cites the same case, and

numerous others, for the opposite proposition:

              Errors analogous to the failure to submit a sentencing factor
      to the jury were subject to harmless error analysis at the time our
      state constitution was adopted. See, e.g.. Code of 1881, ch. XCI, §
      1147; Jim v. Territory, 1 Wash. Terr. 63, 67 (1859) (holding party
      alleging error in jury instruction must provide evidence showing the
      instruction was pertinent to the case); Brown Bros. & Co. v. Forest.
      1 Wash. Terr. 201, 202 (1867) (holding a party alleging an
      instructional error must show prejudice based upon all the
      instructions "taken together"); McClaine, 1 Wash, at 353-55
      (holding instructional error not harmless where essential element of
      the offense was omitted such that jury was likely misled); State v.
      Conahan. 10 Wash. 268, 269, 38 P. 996 (1894); State v. Witherow.
      15 Wash. 562, 563, 46 P. 1035 (1896) (holding any instructional
      error was harmless as the "proof conclusively showed that the
      defendants were guilty of the crime with which they were charged");
      State v. Courtemarch, 11 Wash. 446, 450, 39 P. 955 (1895)
      (holding error was harmless where considered as a whole the jury
No. 73523-3-1/8



      could not have been misled by the instructions so that the verdict
      left "no room for doubt or speculation").
              In Conahan, the trial court improperly placed the burden of
      proving self-defense upon the defendant. 10 Wash, at 269.
      Conahan had bitten off another man's ear during a fight. Id. at 268.
      The trial court had instructed the jury if it found beyond a
      reasonable doubt Conahan had committed the act," 'then the
      burden of proof [was] upon Conahan to show that he could not
      defend himself from bodily harm without resorting to biting the left
      ear of Stapleton.'" jd, at 269 (quoting jury instruction). Rather than
      holding the error was automatically reversible, we looked to
      whether "it affirmatively appears from the record that the error was
      such as not to prejudice the rights of the defendant." id. From the
      record, we determined that the defendant's own testimony showed
      the defendant and the victim were fighting, the victim had no
      weapons, and the victim made no attempt to inflict great bodily
       injury. Id at 270. We concluded that the jury would have returned
      the same verdict absent the error. \± As the defendant was not
       harmed by the erroneous instructions, the judgment was affirmed.
       \±

Williams-Walker, 167 Wn.2d at 914-15 (Fairhurst, J., dissenting). Justice

Fairhurst concluded there was no need to hold that the error under review was

"reversible per se under a state constitutional analysis." Williams-Walker, 167

Wn.2d at 919 (Fairhurst, J., dissenting).

       Clark-El points out that before Brown, modern Washington cases

consistently held that failure to instruct on an element of the offense was

"automatic reversible error." Shelley Sue Smith. 131 Wn.2d at 265. He also

cites decisions from the highest courts in New Hampshire and Mississippi

rejecting Neder under their state constitutions. State v. Kousounadis. 159 N.H.

413, 429, 986 A.2d 603 (2009); Harrell v. State. 2010-CT-01571-SCT, 134 So.

3d 266, 271 (Miss. 2014). But Justice Fairhurst's analysis is more on point

because it focuses on Washington law contemporaneous with the adoption of the

constitution. This was territory that the majority justices in Williams-Walker did

                                            8
No. 73523-3-1/9



not need to traverse because they took a different route to affirmance. Although

Justice Fairhurst's analysis is not precedent, it is unrebutted. Clark-El's

comparatively cursory argument based solely on McClaine is not weighty enough

to overcome it.


       In light of the more comprehensive analysis presented in Justice

Fairhurst's opinions, Clark-El fails to demonstrate that the application of harmless

error analysis to omission of an essential element is inconsistent with the greater

protection afforded to the jury right under our state constitution. We affirm the

conviction because the error was harmless under Brown and Neder.

       Clark-El contends that even ifthe judgment of conviction for delivery of

methamphetamine is affirmed, the sentence must be reversed. We agree. "The

constitutional right to jury trial requires that a sentence must be authorized by a

jury's verdict." State v. Morales. No. 72913-6-1, slip op. at 1 (Wash. Ct. App.

Sept. 26, 2016), http://www.courts.wa.gov/opinions/pdf/729136.pdf. The

sentencing judge imposed a sentence as ifthe 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.
No. 73523-3-1/10



        Ifa court imposes a sentence that is not authorized by the jury's verdict,

harmless error analysis does not apply. Williams-Walker. 167 Wn.2d at 900-01;

see also Recuenco. 163 Wn.2d at 439. For this reason, resentencing is required.

                             KNOWLEDGE ELEMENT

        Proof of "guilty knowledge" is an essential element of the crime of

delivering a controlled substance although the pertinent statute does not contain

a knowledge element. State v. Boyer, 91 Wn.2d 342, 344, 588 P.2d 1151

(1979). Consistent with Bover. the to-convict instruction stated that the second

element to be proved beyond a reasonable doubt was "that the defendant knew

that the substance delivered was a controlled substance." On appeal, Clark-El

contends the second element in the to-convict instruction should have also

required proof he knew the substance was methamphetamine. This challenge,

too, is reviewable despite the lack of objection below because it is a claim that an

essential element was omitted from the to-convict instruction. Mills. 154 Wn.2d

at 6.

        This court has already held that Bover does not require the State to prove

the defendant's "knowledge of the substance's exact chemical or street name."

State v. Nunez-Martinez, 90 Wn. App. 250, 254-55, 951 P.2d 823 (1998). We

adhere to that decision. Requiring the State to show the defendant knew the

specific identity of the substance he was delivering would present unnecessary

and in many cases insuperable proof problems.




                                          10
No. 73523-3-1/11



                   STATEMENT OF ADDITIONAL GROUNDS

       Clark-El raises several issues in a statement of additional grounds for

review. We have reviewed his assertions and conclude they do not provide

sufficient information to warrant discussion. An appellate court "will not consider

a defendant's statement of additional grounds for review if it does not inform the

court of the nature and occurrence of alleged errors." RAP 10.10(c).

       Clark-El's conviction is affirmed. The sentence is reversed. We remand

for resentencing. Appellate costs will not be awarded.



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WE CONCUR:




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