STATE v. BROWN, 49939-4-I (Wash.App. 12-29-2003)

STATE OF WASHINGTON, Respondent, v. FLOYD WENDELL BROWN, Appellant.

No. 49939-4-IThe Court of Appeals of Washington, Division One.
Filed: December 29, 2003 UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of Whatcom County. Docket No: 01-1-01186-6. Judgment or order under review. Date filed: 01/30/2002.

Counsel for Appellant(s), Jennifer K. Ryan Gilman, Barrett Gilman Ziker, 1000 2nd Ave Ste 3500, Seattle, WA 98104-1063 and

David Bruce Koch, Attorney at Law, 1908 E Madison St. Seattle, WA 98122.

Counsel for Respondent(s), Rosemary Hawkins Kaholokula, Whatcom Cty Pros Atty Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.

GROSSE, J.

The amount of marijuana is an element of the crime of conspiracy to possess marijuana in an amount sufficient to constitute a class C felony (more than 40 grams). We believe that it is an essential element, the omission of which requires reversal unless harmless beyond a reasonable doubt. Here, the error cannot be harmless because just what marijuana was found and the amount was in dispute at trial. We reverse.

FACTS
United States border patrol agents at the border of the United States and Canada at Blaine, Washington, observed two men leave an area known for having trails between the countries. The two men were observed walking along a sparsely traveled road on the United States side of the border and later hiding in bushes by a residence. The border patrol also observed that the men carried a backpack and a small bag. A vehicle, the driver later identified as Floyd Brown, soon drove up to where the men were hiding, flashed its lights, and the two men entered the vehicle. Border patrol agents followed the vehicle and turned on their overhead lights. After a short pursuit in which Brown drove through at least one stop sign without stopping and swerved twice for no apparent reason, the vehicle pulled over.

Brown consented to a search of his vehicle. Brown’s two passengers were wearing camouflage-type clothing. A K-9 handler found a small amount of a substance in the pocket of a camouflage jacket in Brown’s car. At trial, several State witnesses testified that the substance found was marijuana, that it had been tested, and that it weighed 7.3 grams.

The border patrol did not initially find the backpack or the bag that the two men carried, and assumed the items had been thrown from the car. The backpack was located on the side of the road. The border patrol found several baggies in the backpack which were later found to contain 865 grams of marijuana. The bag was found a couple hundred yards away from the backpack that also contained a small amount of marijuana.

Brown told United States customs officers that one of the men could not legally cross the border, so he had shown him a trail that traveled between the countries. He said the marijuana was not his `deal,’ but he could lead agents to the marijuana supplier. The State initially charged Brown with conspiracy to unlawfully possess marijuana with intent to deliver and unlawful possession with intent to deliver. The charges were thereafter amended to charge Brown with conspiracy to possess marijuana, in violation of RCW 69.50.407 (count 1), and unlawful possession of marijuana, in violation of RCW 69.50.401(d) (count 2). The charges did not specify that either count involved an amount of marijuana over 40 grams, but specified that each violation was a class C felony.

The State moved to amend count 2 to specify possession of an amount of marijuana in excess of 40 grams. The State argued that amendment of count 2 was a technicality because `all the parties had been proceeding as though this [count] were a felony charge.’ Defense counsel objected, asserting that he would be asking for a lesser included instruction based on the smaller amounts of marijuana testified to at trial. The court granted the motion, noting that the charging documents specified the possession charge was a class C felony and the affidavit of probable cause indicated marijuana in excess of two pounds.

Thereafter, the court informed the State that it would have to change the `to convict’ instruction for count 2 to reflect the State’s allegation that Brown had possessed more than 40 grams of marijuana. Defense counsel requested that the `to convict’ jury instruction for count 1 also be changed, arguing that conspiracy on a class C felony was a gross misdemeanor. The court refused to change the `to convict’ instruction for count 1, asserting that a conspiracy charge under the drug statute was a class C felony regardless, and the amount of marijuana did not matter. Count 1 remained unchanged and the `to convict’ jury instruction for count 1 did not specify that the amount of marijuana for the count was in excess of 40 grams. However, the verdict form specified that both counts involved an amount of marijuana in excess of 40 grams.

Defense counsel then requested a lesser included offense instruction. He argued that the jury could find that Brown possessed or conspired to possess only the 7.3 grams of marijuana contained in the jacket pocket found in his car, not the larger amount found in the backpack. Defense counsel argued the lesser included instruction was necessary because there was testimony regarding the smaller amounts found, although not admitted into evidence. The State objected, asserting that its case focused on the marijuana found in the backpack. The court refused the instruction and asserted it would inform the jury that the smaller amounts of marijuana from the bag and jacket pocket were not to be considered. However, the court merely informed the jury that the smaller amounts had not been admitted into evidence.

The trial court then provided the following conspiracy instruction, based largely on Washington’s conspiracy statute:

A person commits the crime of conspiracy to commit unlawful possession of a controlled substance, when, with intent that conduct constituting the crime of unlawful possession of a controlled substance be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement.[1]

Instruction 10. The court also gave the jury the following accomplice liability instruction, but did not specify to which charge it applied:

A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a crime, he or she either:
(1) Solicits, commands, encourages, or requests another person to commit the crime; or
(2) Aids or agrees to aid another person in planning or committing a crime.

Instruction 18.

During closing argument, the State attempted to emphasize Brown’s principal liability on the conspiracy charge, and his accomplice liability on the possession charge. The defense then pointed out that the jury could only consider the contents of the backpack and asserted there was no evidence that Brown was an accomplice to the alleged conspiracy or the possession charge. The jury found Brown not guilty of count 2, but found him guilty of count 1, conspiracy to unlawfully possess a controlled substance in excess of 40 grams. Brown was sentenced within the standard range and appeals.

DISCUSSION
The State relies on the recent case of State v. Bobic[2] to support its contention that the focus of a conspiracy charge is on the agreement, not the specific criminal object(s) of the agreement. Thus, the amount of the marijuana here was not an element. Brown argues that the amount of marijuana was an essential element of the underlying conspiracy charge and that the trial court misunderstood the consequences of instructing the jury without defining the amount of marijuana to be possessed. We agree with the appellant.

The State’s argument is based on a misunderstanding of Bobic’s ruling. Bobic held that double jeopardy principles would be violated if a defendant was convicted of multiple conspiracies where the evidence showed that the separate charges were based on one agreement to commit multiple criminal objectives.[3] Bobic recognized that in such situations, the focus is primarily on the agreement, not the specific criminal object or objects of the agreement.[4] The court’s examination of conspiracy law focused squarely on the double jeopardy analysis. Here, there was only one underlying crime. Thus, double jeopardy analysis is not appropriate.

While agreement is a necessary element of conspiracy, Washington case law implicitly recognizes that the object, or the subject crime, of the conspiracy is also an element.[5] For instance, where the `to convict’ instructions in a charge of conspiracy to commit first degree murder fail to specify that the subordinate crime of the conspiracy is first degree murder, the instructions are constitutionally defective.[6]
Washington’s general conspiracy statute also states that the punishment for a conspiracy depends upon the underlying crime.[7] Thus, Washington cases recognize that jury instructions necessarily include the degree of the underlying crime in the elements of the crime of conspiracy.[8]

Further, conspiracy to possess marijuana is governed by the more specific conspiracy provision of the Uniform Controlled Substances Act (UCSA).[9] RCW 69.50.407 specifies:

Any person who attempts or conspires to commit any offense defined in this chapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

The UCSA conspiracy statute makes it clear that the punishment for a conspiracy to violate the UCSA is predicated on the underlying offense. Unlike the crime of delivery of a controlled substance, the underlying crime of possession depends upon the amount of controlled substance alleged to have been possessed.[10] Thus, under the more specific UCSA conspiracy statute, the amount of marijuana becomes an element of the crime of conspiracy to possess marijuana. The trial court misunderstood the implications of the UCSA conspiracy statute and thus failed to properly instruct the jury on the elements of the crime.

Omission of an essential element of a crime in jury instructions is an error of constitutional magnitude and may be raised for the first time on appeal.[11] A defendant cannot be said to have a fair trial `if the jury might assume that an essential element need not be proved.’[12]
Additionally, the `to convict’ instructions `must contain all of the elements of the crime because it serves as a `yardstick’ by which the jury measures the evidence to determine guilt or innocence.’[13]

The general rule is that the jury is not required to search outside the `to convict’ instruction to supplement the elements outlined therein.[14]
Only where an element of a crime involves the defendant’s prior criminal history may a trial court request the jury to determine this criminal history by special jury verdict, rather than setting it forth in the `to convict’ instructions.[15] That is not the case here. The jury had a right to regard instruction 11 as being a complete statement of the elements of the crime charged and was not required to search the other instructions for other elements.[16]

Errors in instructions, even where an element of the crime is missing, are subject to harmless error analysis rather than automatic reversal.[17] An instructional error which omits an element of the crime charged will be found harmless only, if from the record in a given case, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.[18]

We hold that the error in the `to convict’ instructions here was not harmless beyond a reasonable doubt. Instruction 11 was equivalent to directing the jury that it was not necessary for the State to prove an essential element of the crime of conspiracy to possess marijuana in excess of 40 grams to find the defendant guilty of such a crime. The jury heard witnesses testify that a smaller amount of marijuana had been tested and that it weighed less than 40 grams. The court failed to instruct the jury that it could not consider this evidence since the crime alleged was a felony. Thus, it is possible that the jury convicted Brown based on his possession of the smaller misdemeanor amount of marijuana found in his vehicle.

The error was not harmless and the State was relieved from its burden of proving all the elements of the crime charged. The proper remedy for improper `to convict’ instructions is dismissal without prejudice to the right of the State to recharge and retry Brown on the offense of conviction.[19] Because we reverse on the instructional error, Brown’s remaining claims do not require detailed discussion.[20]

The decision of the trial court is reversed.

BECKER and COX, JJ., concur.

[1] RCW 9A.28.040(1).
[2] State v. Bobic, 140 Wn.2d 250, 996 P.2d 610 (2000).
[3] Bobic, 140 Wn.2d at 264-65.
[4] Bobic, 140 Wn.2d at 265.
[5] State v. Smith, 131 Wn.2d 258, 262-63, 930 P.2d 917 (1997).
[6] Smith, 131 Wn.2d at 263.
[7] RCW 9A.28.040(3).
[8] See, e.g., Smith, 131 Wn.2d at 262-64 (the underlying crime for conspiracy to commit first degree murder, i.e., first degree murder, must be set forth in the `to convict’ instructions); State v. Israel, 113 Wn. App. 243, 287, 54 P.3d 1218 (2002) (State’s evidence sufficient to prove defendant guilty of conspiracy to commit robbery in first degree where evidence showed defendant knew weapons would be and were used during commission of crimes, thus agreeing to conduct that constituted first degree robbery), review denied, 149 Wn.2d 1013 (2003); State v. Brown, 45 Wn. App. 571, 574-76, 726 P.2d 60 (1986) (to convict instructions properly included degree of theft as element of conspiracy to commit murder, but required reversal because charged co-conspirators were not named in instructions). See also, United States v. Buckland, 289 F.3d 558, 567-68 (9th Cir. 2002) (because drug quantity under 21 U.S.C. § 841 affects the defendant’s sentence in a federal charge of conspiracy to possess an illegal substance, drug quantity and type must be charged in the indictment, submitted to the jury, subject to the rules of evidence, and proved beyond a reasonable doubt to the jury), cert. denied, 535 U.S. 1105 (2002).
[9] State v. Cameron, 80 Wn. App. 374, 379-80, 909 P.2d 309 (1996) (citing State v. Mendoza, 63 Wn. App. 373, 377, 819 P.2d 387 (1991), RCW 69.50.407, RCW 9A.28.040).
[10] RCW 69.50.401 (possession of 40 grams or less of marijuana is a misdemeanor; otherwise, possession of marijuana is a felony; possession with intent to deliver is felony regardless of amount). See also State v. Cowles, 14 Wn. App. 14, 17, 538 P.2d 840 (1975) (where defendants were charged with feloniously possessing marijuana, possession of marijuana in excess of 40 grams became an element).
[11] State v. Eastmond, 129 Wn.2d 497, 919 P.2d 577 (1996).
[12] Smith, 131 Wn.2d at 263 (citing State v. Johnson, 100 Wn.2d 607, 623, 674 P.2d 145 (1983), overruled on other grounds in State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985)).
[13] Smith, 131 Wn.2d at 263. See also State v. Emmanuel, 42 Wn.2d 799, 819, 259 P.2d 845 (1953).
[14] Smith, 131 Wn.2d at 262-63; Cowles, 104 Wn. App. at 945.
[15] State v. Oster, 147 Wn.2d 141, 146-47, 52 P.3d 26 (2002). But see, State v. Davis, 116 Wn. App. 81, 64 P.3d 661, review granted, 149 Wn.2d 1032 (2003) and State v. Mills, 116 Wn. App. 106, 64 P.3d 1253, review granted, 149 Wn.2d 1032 (2003) (Davis and Mills consolidated for review). Both cases hold that a special jury verdict form on an element missing from the `to convict’ instructions was sufficient to fully set forth all the elements of the crime. Although these cases appear to misinterpret Emmanuel, and fail to cite Oster, we have no special verdict form that sets forth the missing element. Thus, Mills and Davis are not applicable here.
[16] See, e.g., Emmanuel, 42 Wn.2d at 819.
[17] State v. Brown, 147 Wn.2d 330, 339-41, 58 P.3d 889 (2002); State v. Cronin, 142 Wn.2d 568, 580-82, 14 P.3d 752 (2000); State v. Roberts, 142 Wn.2d 471, 512-13, 14 P.3d 713 (2000).
[18] Brown, 147 Wn.2d at 332.
[19] State v. Vangerpen, 125 Wn.2d 782, 791, 888 P.2d 1177 (1995); Emmanuel, 42 Wn.2d at 821.
[20] The State concedes the accomplice liability instruction was erroneous. Brown argues that the instruction was not harmless beyond a reasonable doubt because the jury could have found him guilty as an accomplice of `the crime’ of conspiring to possess marijuana based on `a crime,’ the crime of assisting in an illegal border crossing. Brown, 147 Wn.2d at 332, 339-41. Vicarious liability of co-conspirators, if any, is based on Washington’s accomplice liability statute and thus also requires specific knowledge of the `the crime’ committed. State v. Israel, 113 Wn. App. 243, 275, 54 P.3d 1218 (2002) (citing State v. Stein, 144 Wn.2d 236, 244-45, 27 P.3d 184 (2001)). However, even if accomplice liability can attach to a conspiracy charge, the instruction here was harmless beyond a reasonable doubt because it is obvious that the jury believed Brown was a principal in the conspiracy. Brown told one of the men how to cross the border illegally and picked up both men on the U.S. side of the border, arriving soon after the men appeared. The men were hiding, Brown flashed his lights, and the men were carrying marijuana. Brown attempted to elude border patrol agents when they pursued his vehicle and the bags the men were carrying were thrown from Brown’s vehicle. Brown’s actions represented evidence of his own agreement to conspire to possess marijuana and a substantial step in furtherance of that agreement. This evidence illustrated his principal liability as a conspirator. Reversal is not required on this issue. State v. Borrero, 147 Wn.2d 353, 365-66, 58 P.3d 245 (2002).