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IN THE SUPREME COURT OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                  )
                                      )
            Respondent,               )           No. 87614-2
                                      )
v.                                    )            ENBANC
                                      )
                                                                  AUG 012013
BRENDA J. ZILL YETTE,                 )            Filed:
                                      )
            Petitioner.               )
                                      )

      FAIRHURST, J.-The State charged Brenda J. Zillyette with controlled

substances homicide for the death of Austin Burrows. The information charging

Zillyette with controlled substances homicide did not identify the controlled

substance that Zillyette allegedly delivered to Burrows that resulted in Burrows'

death. The trial court convicted Zillyette of the crime charged, and the Court of

Appeals affirmed. We reverse because the information failed to set forth all of the

essential elements of the crime of controlled substances homicide.
State v. Zillyette, No. 87614-2


                        FACTS AND PROCEDURAL HISTORY

       Burrows died after ingesting large quantities of two prescription drugs-

Xanax and methadone. After investigators discovered that Burrows had received

the drugs from Zillyette, the State charged Zillyette with controlled substances

homicide. The information filed by the State alleged:

        That the said defendant, Brenda J. Zillyette, in Grays Harbor County,
        Washington, on or about March 31,-April 1, 2009 did unlawfully
        deliver a controlled substance to Austin Burrows in violation of RCW
        69.50.401, which controlled substance was subsequently used by
        Austin Burrows, resulting in his death;

        CONTRARY TO RCW 69.50.415 and against the peace and dignity
        ofthe State of Washington.

Clerk's Papers (CP) at 1. After a bench trial, the trial court convicted Zillyette of

the charged crime and sentenced her to 55 months in prison. Zillyette appealed her

conviction, alleging that ( 1) the State's evidence was insufficient under the rule of

corpus delicti, and (2) the information was invalid because it did not identify what

controlled substance caused Burrows' death.

        The Court of Appeals, Division Two affirmed Zillyette's conviction, holding

that the State satisfied the corpus delicti rule and that, regardless of whether the

information was valid, Zillyette's assignment of error failed because she did not

show actual prejudice. State v. Zillyette, 163 Wn. App. 124, 256 P.3d 1288 (2011).

Zillyette sought review from this court, which we granted. This court reversed the


                                          2
State v. Zillyette, No. 87614-2


decision and remanded to the Court of Appeals, instructing the lower court to

analyze whether the information was sufficient before analyzing whether Zillyette

was prejudiced. State v. Zillyette, 173 Wn.2d 784, 786, 270 P.3d 589 (2012). On

remand, the Court of Appeals affirmed Zillyette' s conviction a second time,

holding that the information was sufficient because the specific identity of the

controlled substance is only an essential element when it aggravates the penalty of

the crime. State v. Zillyette, 169 Wn. App. 24, 26, 278 P.3d 1144 (2012) (citing

State v. Goodman, 150 Wn.2d 774, 786, 83 P.3d 410 (2004)).

        Zillyette petitioned for review on the information issue only, which we

granted. State v. Zillyette, 175 Wn.2d 1022, 291 P.3d 253 (2012).

                                       ISSUES

      A.     Is the identity . of the controlled substance an essential element of
controlled substances homicide?

      B.     Is an information charging a defendant with controlled substances
homicide sufficient if it fails to specify the particular controlled substance, or
schedule of controlled substances, that caused the victim's death?

                                     ANALYSIS

A.      Is the identity of the controlled substance an essential element of controlled
        substances homicide?

        "All essential elements of a crime . . . must be included in a charging

document in order to afford notice to an accused of the nature and cause of the

 accusation against him." State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991).

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State v. Zillyette, No. 87614-2


The essential elements rule is grounded in the Sixth Amendment to the United

States Constitution and article I, section 22 of the Washington State Constitution.

U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall ... be

informed of the nature and cause of the accusation."); WASH. CONST. art. I, § 22

("In criminal prosecutions the accused shall have the right . . . ·to demand the

nature and cause of the accusation against him."); see also CrR 2.1(a)(1) ("[T]he

information shall be a plain, concise and definite written statement of the essential

facts constituting the offense charged."). "We review allegations of constitutional

violations de novo." State v. Siers, 174 Wn.2d 269, 273-74, 274 P.3d 358 (2012).

        "An 'essential element is one whose specification is necessary to establish

the very illegality ofthe behavior' charged." State v. Ward, 148 Wn.2d 803, 811,

64 P.3d 640 (2003) (quoting State v. Johnson, 119 Wn.2d 143, 147, 829 P.2d 1078

(1992)). "' [E]ssential elements' include only those facts that must be proved

beyond a reasonable doubt to convict a defendant of the charged crime." State v.

Powell, 167 Wn.2d 672, 683, 223 P.3d 493 (2009) (lead opinion) (quoting State v.

McCarty, 140 Wn.2d 420, 425, 998 P.2d 296 (2000)), overruled on other grounds

by Siers, 174 Wn.2d at 276 (adopting the position advanced by the lead opinion in

Powell). Essential elements include statutory and nonstatutory elements. Kjorsvik,

 117 Wn.2d at 101-02.



                                          4
State v. Zillyette, No. 87614-2


       "The primary goal of the 'essential elements' rule is to give notice to an

accused of the nature of the crime that he or she must be prepared to defend

against." Id. at 101. A secondary purpose for the essential elements rule is to bar

"'any subsequent prosecution for the same offense."' State v. Nonog, 169 Wn.2d

220, 226, 237 P.3d 250 (2010) (quoting State v. Leach, 113 Wn.2d 679, 688, 782

P.2d 552 (1989)).

        RCW 69.50.415(1) defines the crime of controlled substances homicide: "A

person who unlawfully delivers a controlled substance in violation of RCW

69.50.401(2)(a), (b), or (c) which controlled substance is subsequently used by the

person to whom it was delivered, resulting in the death of the user, is guilty of

controlled substances homicide." RCW 69.50.401(2) is divided into five

subsections: (a)-(e). But as expressly stated in RCW 69.50.415(1), only

subsections (a)-( c) apply to controlled substances homicide.

        Under RCW 69.50.401(2)(a), a person may be guilty of controlled

substances homicide if he or she delivers a Schedule 11 or II2 narcotic drug (or

flunitrazepam) to another who subsequently dies from using the controlled

substance. Under RCW 69.50.401(2)(b), a person may be guilty of controlled

 substances homicide if he or she delivers amphetamine or methamphetamine to

 another who subsequently dies from using the controlled substance. Under RCW

        1
            RCW 69.50.204.
        2
            RCW 69.50.206.
                                          5
State v. Zillyette, No. 87614-2


69.50.401(2)(c), a person may be guilty of controlled substances homicide if he or

she delivers "[ a]ny other controlled substance classified in Schedule I, II, or III" 3 to

another who subsequently dies from using the controlled substance.                  RCW

69.50.401(2)(d) and (e) refer to Schedule IV4 and Schedule V 5 controlled

substances, respectively, but Schedule IV and V controlled substances cannot be

the basis for controlled substances homicide (with the exception of flunitrazepam).

RCW 69.50.415(1).

        The specific identity of a controlled substance is not necessarily an essential

element of controlled substances homicide. However, because not all controlled

substances can be the basis for controlled substances homicide, some degree of

specification "'is necessary to establish the very illegality of the behavior'

charged" in order to charge a person with controlled substances homicide. Ward,

148 Wn.2d at 811 (quoting Johnson, 119 Wn.2d at 147). To establish the illegality

of controlled substances homicide, the State must at least specify the applicable

RCW 69.50.401(2) subsection ((a), (b), or (c)) or identify the schedule of the

controlled substance that caused the user's death. Simply alleging that an accused

person delivered a controlled substance in violation of.RCW 69.50.401 does not




        3
         RCW 69.50.208.
        4
         RCW 69.50.210.
        5
         RCW 69.50.212.
                                             6
State v. Zillyette, No. 87614-2


satisfy the essential element rule because it is over inclusive. That is, it alleges both

criminal and noncriminal behavior.

       This case clearly demonstrates why the identification of the controlled

substance, or at least the schedule of the controlled substance, is an essential

element of controlled substances homicide. The investigation of Burrows' death

revealed that Burrows ingested both methadone and Xanax the night prior to his

death. Methadone is a Schedule II controlled substance, RCW 69.50.206(c)(15),

and falls under RCW 69.50.401(2)(a) because it is a "narcotic drug" as defined in

RCW 69.50.101(x). Xanax (alprazolam), on the other hand, is a Schedule IV

controlled     substance.         RCW   69.50.210(b)(1).   Delivery   of alprazolam    is

criminalized in RCW 69.50.401(2)(d). Alprazolam, however, cannot be the basis

for controlled substances homicide because it is a Schedule IV controlled

substance, which would fall under RCW 69.50.401(2)(d). Two different controlled

substances were involved in Burrows' death, but only one of the controlled

substances was a basis for controlled substances homicide. The identity of the

controlled substance, or at least the schedule of the controlled substance, is an

essential element of the crime of controlled substances homicide because such

specification is necessary to establish the illegality of the act. Ward, 148 Wn.2d at

811.




                                               7
State v. Zillyette, No. 87614-2


       The Court of Appeals found that the identity of the controlled substance is

not an essential element to controlled substances homicide. Citing Goodman, the

Court of Appeals stated that the identity of the controlled substance is only an

essential element when it "aggravates the maximum sentence a court may impose."

Zillyette, 169 Wn. App. at 26-27 (citing Goodman, 150 Wn.2d at 786). The Court

of Appeals is correct that the identity of the controlled substance is an essential

element when the identity of the controlled substance aggravates the penalty a

court may impose. We further agree that the exact identity of the controlled

substance is not necessarily an essential element of controlled substances

homicide. But if the identity of the controlled substance is not specified, the

essential elements rule requires something more than simply alleging that a person

delivered a controlled substance. Specification of the identity of the controlled

substance, or, alternatively, the RCW 69.50.401(2) subsection ((a), (b), or (c)) or

the schedule of the controlled substance, is an essential element of controlled

substances homicide.

B.      Is an information charging a defendant with controlled substances homicide
        sufficient if it fails to specifY the particular controlled substance, or schedule
        of controlled substances, that caused the victim's death?

        When a defendant challenges the sufficiency of a charging document for the

first time on appeal, an appellate court will liberally construe the language of the

charging document in favor of validity. Kjorsvik, 117 Wn.2d at 105. "This method

                                             8
State v. Zillyette, No. 87614-2


of liberal construction permits us to fairly infer the apparent missing element from

the charging document's language." Goodman, 150 Wn.2d at 788. Liberal

interpretation "balances the defendant's right to notice against the risk of ...

'sandbagging'-that is, that a defendant might keep quiet about defects in the

information only to challenge them after the State has rested and can no longer

amend it." Nonog, 169 Wn.2d at 227 (citing Kjorsvik, 117 Wn.2d at 103).

        In liberally construing the charging document, we employ the two-pronged

Kjorsvik test: (1) do the necessary elements appear in any form, or by fair

construction, on the face of the document and, if so, (2) can the defendant show he

or she was actually prejudiced by the unartful language. Kjorsvik, 117 Wn.2d at

105-06. If the defendant satisfies the first prong of the test, "we presume prejudice

and reverse without reaching the question of prejudice." McCarty, 140 Wn.2d at

425 (citing Kjorsvik, 117 Wn.2d at 105-06).

        Under the first prong of the Kjorsvik test, we look solely to the face of the

information to determine if the essential elements of the crime appear in any form,

or by fair construction, in the charging document. 117 Wn.2d at 105. The

information must be read "as a whole and in a [commonsense] manner." !d. at 110-

 11. Despite the liberal standard of interpreting the charging document in favor of

validity, '"[i]f the document cannot be construed to give notice of or to contain in

some manner the essential elements of a crime, the most liberal reading cannot

                                          9
State v. Zillyette, No. 87614-2


cure it."' State v. Moavenzadeh, 135 Wn.2d 359, 363, 956 P.2d 1097 (1998)

(quoting State v. Campbell, 125 Wn.2d 797, 802, 888 P.2d 1185 (1995)).

       "More than merely listing the elements, the information must allege the

particular facts supporting them." Nonog, 169 Wn.2d at 226. The mere recitation

of a "numerical code section" and the "title of an offense" does not satisfy the

essential elements rule. City of Auburn v. Brooke, 119 Wn.2d 623, 627, 836 P.2d

212 (1992); see also State v. George, 146 Wn. App. 906, 913, 193 P.3d 693 (2008)

(reversing conviction for possession of drug paraphernalia when charging

document simply stated, "RCW 69.50.412(i) Possession of drug paraphernalia."

(footnote omitted)). Requiring a defendant to locate the relevant code and

determine "the elements of the defense from the proper code section" is an "unfair

burden to place on an accused." Brooke, 119 Wn.2d at 635. "[D]efendants should

not have to search for the rules or regulations they are accused of violating." !d.

        The particular facts necessary to charge Zillyette with controlled substances

homicide do not appear in any form, or by fair construction, in Zillyette's

information. To effectively charge Zillyette with controlled substances homicide,

the information needed to include the identity of the controlled substance-

methadone-or at least the schedule under which methadone falls, Schedule II.

Instead, the information alleged that Zillyette "unlawfully deliver[ ed] a controlled

substance . . . in violation of RCW 69.50.401 . . . CONTRARY TO RCW

                                          10
State v. Zillyette, No. 87614-2


69.50.415 and against the peace and dignity of the State of Washington." CP at 1.

The information merely set forth the language of RCW 69.50.415(1) and failed to

allege the facts necessary to charge a person with controlled substances homicide.

Nothing on the face of Zillyette's information can be construed to imply that

methadone was the controlled substance that caused Burrows' death. Not even the

most liberal reading of this information can cure its defects.

        Because the State cannot satisfy the first prong of the Kjorsvik liberal

construction test, we presume prejudice and reverse without deciding whether

Zillyette was prejudiced.

                                   CONCLUSION

        Identification of the controlled substance, or, alternatively, specification of

the RCW 69.50.401(2) subsection ((a), (b), or (c)) or the schedule of the controlled

substance, is an essential element of controlled substances homicide. An

information alleging simply that a person delivered a controlled substance that

caused a user's death is over inclusive. It could possibly charge both criminal and

noncriminal behavior because not every kind of controlled substance can be the

basis for controlled substances homicide. On its face, the information charging

Zillyette with controlled substances homicide failed to identify methadone as the

 controlled substance that caused Burrows' death. The information also failed to

 specify that the controlled substance that killed Burrows fell into RCW

                                           11
State v. Zillyette, No. 87614-2


69.50.401(2)(a) or Schedule II. Not even a liberal interpretation can cure

Zillyette's information of its defects. Therefore, we reverse the Court of Appeals,

vacate Zillyette's conviction for controlled substances homicide, and dismiss the

charge without prejudice.




                                         12
State v. Zillyette, No. 87614-2




WE CONCUR:




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