BROWN, C.J.
Following a bench trial, the Benton County Superior Court found Jay Goodman guilty of possession of a controlled substance, methamphetamine, with intent to deliver. The amended information alleged possession of `meth' rather than `methamphetamine.' On appeal, Mr. Goodman mainly argues the identity of the involved controlled substance is an essential element of possession with intent to deliver. We decide for the first time it is not. We reject his other assignments of error in the unpublished portion of this opinion. Accordingly, we affirm.
FACTS
In August 2001, the State's first information alleged Jay Goodman `did unlawfully possess with intent to deliver a controlled substance, to wit: Methamphetamine[.]' Clerk's Papers (CP) at 46. On October 15, 2001 at the stipulated facts bench trial, the State filed, without objection, an amended information that alleged possession of `a controlled substance with intent to deliver, to wit: meth.' CP at 26. The amended information added a school zone allegation.
Mr. Goodman stipulated to the school zone allegation, but argued the stipulated evidence did not produce sufficient indicia of intent to deliver; i.e., the amount of contraband was small, and there was no evidence of financial records, telephone lists, pagers, or other drug delivery paraphernalia. The trial court found Mr. Goodman guilty as charged and entered consistent findings of fact and conclusions of law. Mr. Goodman's sentence included a 24-month school zone enhancement. He appealed.
ANALYSIS
Sufficiency of Charging Document
The unique issue is whether the amended information was deficient because it described the controlled substance as `meth' rather than `methamphetamine.'
`The Sixth Amendment to the United States Constitution and article I, section 22 (amend. 10) of the Washington Constitution require that a charging document include all essential elements of a crime, statutory and nonstatutory, so as to inform the defendant of the charges against him and to allow him to prepare a defense.' State v. Phillips, 98 Wn. App. 936, 939, 991 P.2d 1195 (2000) (citing State v. Hopper, 118 Wn.2d 151, 155, 822 P.2d 775 (1992); State v. Kjorsvik, 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991); State v. Ralph, 85 Wn. App. 82, 84, 930 P.2d 1235 (1997)). `Therefore, an accused has a protected right, under our state and federal charters, to be informed of the criminal charge against him so he will be able to prepare and mount a defense at trial.' State v. McCarty, 140 Wn.2d 420, 425, 998 P.2d 296 (2000) (citing State v. Bergeron, 105 Wn.2d 1, 18, 711 P.2d 1000 (1985)).
`Every material element of the charge, along with all essential supporting facts, must be put forth with clarity.' McCarty, 140 Wn.2d at 425 (citing CrR 2.1(a)(1); Kjorsvik, 117 Wn.2d at 97). `An information omitting essential elements charges no crime at all.' State v. Sutherland, 104 Wn. App. 122, 130, 15 P.3d 1051 (2001) (citing State v. Vangerpen, 125 Wn.2d 782, 795, 888 P.2d 1177 (1995); Phillips, 98 Wn. App. at 939-41; State v. Hull, 83 Wn. App. 786, 802, 924 P.2d 375 (1996)).
The threshold question is whether the name of the concerned controlled substance is a necessary element when the State alleges a single count of possession of a controlled substance with intent to deliver. Mr. Goodman cites no authority in support of his argument that the State must name the `specific controlled substance charged.' Appellant's Br. at 24. This is another way of asking whether the information must allege any specific controlled substance at all, our unique inquiry.
Division Two of this Court recognized the issue in the jury instruction context but did not resolve it, relying instead on the law of the case doctrine to determine evidence sufficiency. State v. Ong, 88 Wn. App. 572, 577-78, 945 P.2d 749 (1997). The Washington pattern jury instruction describing the relevant elements allows the trial court the option of using the general term `controlled substance' or the name of the specific controlled substance. 11 Washington Pattern Jury Instructions: Criminal 50.06, at 644 (2d ed. 1994) (WPIC). But the WPIC drafters observed also '[i]t is not clear whether the defendant must know that the substance was a specific substance or whether the defendant must know that the substance was a controlled substance.' Id. cmt. at 645. Division Two later held that the State need not allege and prove the defendant knew he was delivering a particular controlled substance. State v. Nunez-Martinez, 90 Wn. App. 250, 255-56, 951 P.2d 823 (1998).
Other jurisdictions vary on this issue. The Ohio Supreme Court held the drug trafficking statute of that state required the charging document to allege the specific controlled substance. State v. Headley, 6 Ohio St.3d 475, 453 N.E.2d 716, 720 (1983). The Ohio statute contained a general prohibition against `the selling, distribution, production or possession of certain controlled substances, or drugs, for certain purposes.' Id. `The severity of the offense is dependent upon the type of drug involved.' Id. Certain drugs would result in a conviction for `aggravated trafficking' while other drugs would result in the lesser offense of `trafficking in drugs.' Id.
The Ohio court went on to reason the drug trafficking statute `sets forth more than one criminal offense with the identity of each being determined by the type of controlled substance involved.' Id. `As such, the type of controlled substance involved constitutes an essential element of the crime which must be included in the indictment.' Id. A dissenting justice called the majority's reading of the statute `hypertechnical,' and reasoned `the nature of the drug involved does not affect the identity of the offense, only the degree of the felony.' Id. at 721 (Holmes, J., dissenting). It appears no other state has adopted the Ohio court's holding.
By contrast, another appellate court held the identity of a specific drug was not an element of the offense of distribution of a controlled substance. Carter v. United States, 591 A.2d 233, 234 (D.C. 1991). Interpreting the District of Columbia's version of the Uniform Controlled Substances Act (UCSA), which is similar to RCW 69.50.401, the Carter court noted the provision `does not define the offense in terms of distinctions between the distributions of varying controlled substances.' Id. (citing D.C. Code sec. 33-541(a)(1) (1988)). A separate provision `provides penalties for violations with respect to controlled substances in various classifications.' Id. at n. 1 (citing D.C. Code sec. 33-541(a)(2) (1988)). The Carter court reasoned that the identity of the involved controlled substance was `material only as to an applicable penalty.' Id. Elaborating further, the Carter court noted the UCSA `seeks to prohibit the manufacture and distribution of any controlled drug, and it does not require that the offender know what the particular unlawful drug is that he is selling.' Id. (citing United States v. Lopez-Martinez, 725 F.2d 471, 474 (9th Cir. 1984); United States v. Gonzales, 700 F.2d 196, 200-01 (5th Cir. 1983)). Accordingly, `all that is required under the UCSA is that one intentionally distribute a controlled substance.' Id. at 235. Division Two of this Court relied on Carter and several additional cases from other jurisdictions in holding the State was not required to allege and prove the defendant knew he was delivering a particular controlled substance. Nunez-Martinez, 90 Wn. App. at 254-56.
Turning now to Washington's Uniform Controlled Substances Act (UCSA), chapter 69.50 RCW, we note the primary goal of statutory interpretation is to ascertain the Legislature's intent. Dep't of Ecology v. Campbell Gwinn, L.L.C., 146 Wn.2d 1, 9, 43 P.3d 4 (2002). Absent ambiguity, this Court derives the plain meaning `from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.' Id. at 11. If the appellate court's initial inquiry shows the statute is ambiguous, it may construe the meaning of the statute with the aid of other sources such as legislative history. Id. at 12.
Washington's UCSA provides generally that `it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.' RCW 69.50.401(a). A controlled substance is `a drug, substance or immediate precursor' listed in Schedules I through V of the statute. RCW 69.50.101(d). See also RCW 69.50.203-.212 (governing Schedules I through V).
The term of imprisonment imposed for violation of RCW 69.50.401(a) is five to ten years depending on the specific controlled substance underlying the offense. RCW 69.50.401(a)(1)(i)-(iii). The statute specifically provides that methamphetamine results in a 10-year sentence. RCW 69.50.401(a)(1)(ii). By contrast, the anabolic steroid, methandrostenolone, is an example of a Schedule III controlled substance resulting in a 5-year prison term. RCW 69.50.208(d)(14); RCW 69.50.401(a)(1)(iii). In this connection, Mr. Goodman refers to the sentencing provisions for the different types of controlled substances as class B or C felonies. But, the statute does not use the class B and C terminology; rather, it sets forth a core offense, with the sentence determined in accordance with the specific controlled substance. RCW 69.50.401(a). Accordingly, manufacturing, delivering, or possessing with intent to deliver is unlawful with respect to all controlled substances. RCW 69.50.401(a).
Mr. Goodman contends the specific name of the controlled substance is a necessary element of RCW 69.50.401(a) because of the different sentencing possibilities. But, Mr. Goodman's list of controlled substances containing the syllable `meth' undercuts his own argument because possession of any one of them is a crime under RCW 69.50.401(a). See also RCW 69.50.203-.212. Although the specific controlled substance the defendant allegedly manufactured, delivered, or intended to deliver may result in a different sentence, 5 or 10 years, the core crime is the same. RCW 69.50.401(a). Naming the specific controlled substance in an information alleging a single violation of RCW 69.50.401(a) is surplusage.
Given the above interpretation of the UCSA, we find Carter more persuasive than Headley. By its plain terms, RCW 69.50.401(a) prohibits the distribution of any controlled substance. Carter, 591 A.2d at 234. The State need not allege and prove the defendant knew the specific controlled substance he or she was distributing. Nunez-Martinez, 90 Wn. App. at 255-56. The identity of the controlled substance is material solely for determining the appropriate penalty for the `core' offense of delivery. Robinson v. United States, 697 A.2d 787, 790 (D.C. 1997); Carter, 591 A.2d at 234. Accordingly, Mr. Goodman's argument is unpersuasive.
Further, assuming solely for discussion the name of the specific controlled substance is an essential element of RCW 69.50.401(a), Mr. Goodman challenges the information for the first time on appeal. If the defendant challenges the information after the State has lost its opportunity to amend it, the reviewing court construes the charging document liberally. Phillips, 98 Wn. App. at 940-943; see also Kjorsvik, 117 Wn.2d at 103. The liberal Kjorsvik standard discourages `sandbagging,' the potential defense practice of remaining silent in the face of a constitutionally defective charging document because a timely challenge will merely result in the State amending the information to cure the defect. Kjorsvik, 117 Wn.2d at 103; Phillips, 98 Wn. App. at 940; see also 2 Wayne R. LaFave Jerold H. Israel, Criminal Procedure sec. 19.2, at 442, n. 36 (1984).
Here, the liberal standard of review applies. Kjorsvik, 117 Wn.2d at 103; Hopper, 118 Wn.2d at 155. Consequently, the reviewing court applies a two-prong analysis: '(1) do the necessary elements appear in any form, or by fair construction can they be found, in the information, and if so (2) can the defendant show he or she was actually prejudiced by the inartful language.' McCarty, 140 Wn.2d at 425 (citing Kjorsvik, 117 Wn.2d at 105-06). `If the necessary elements are not found or fairly implied, however, we presume prejudice and reverse without reaching the question of prejudice.' McCarty, 140 Wn.2d at 425-26 (citing Kjorsvik, 117 Wn.2d at 105-06; City of Auburn v. Brooke, 119 Wn.2d 623, 636, 836 P.2d 212 (1992)).
The amended information alleges possession of `meth.' Mr. Goodman correctly notes many controlled substances incorporate the syllable `meth.' See RCW 69.50.203-.212. But, `meth' is a very commonly used abbreviation for methamphetamine; it appears constantly in news reporting on and in daily conversation, both in and out of the courthouse, about the `meth problem.' Accordingly, the term `meth' as used in the information can be fairly construed to mean methamphetamine rather than a lesser known controlled substance. The use of `meth' as an abbreviated `form' of `methamphetamine' satisfies the first prong of the Kjorsvik test. Id. at 105-06.
The second-prong of the Kjorsvik test recognizes that using `meth' in the information is `inartful or vague.' Kjorsvik, 117 Wn.2d at 106. The better practice is to use `methamphetamine.' But the flawed information alone will not result in reversal; Mr. Goodman must show actual prejudice also. Id.
In exploring whether the information caused actual prejudice, we `may look beyond the face of the charging document to determine if the accused actually received notice of the charges he or she must have been prepared to defend against.' Id. (footnote omitted). `It is possible that other circumstances of the charging process can reasonably inform the defendant in a timely manner of the nature of the charges.' Id.
Under this record, Mr. Goodman cannot claim he lacked due notice. The original information used the full term, `methamphetamine.' CP at 46. The methamphetamine allegation is readily apparent throughout the pre-trial record. The State did not file the amended information until two months later, on the date of the stipulated facts trial, and solely to add the school zone enhancement.
In light of the foregoing, Mr. Goodman's argument he lacked constitutional notice is unpersuasive.
Affirmed.
A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports, and that the remainder, having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered. Evidence Sufficiency
The issue is whether the evidence was sufficient to support the conviction of possession of methamphetamine with intent to deliver. In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the State and determine whether any rational trier of fact would have found the defendant guilty beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)). We draw all reasonable inferences from the evidence in favor of the State and interpret them most strongly against the accused. Salinas, 119 Wn.2d at 201. In claiming the evidence was insufficient, the defendant admits the truth of the State's evidence and all inferences reasonably drawn from it. Salinas, 119 Wn.2d at 201.
We consider circumstantial evidence to be as equally reliable as direct evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997); State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). `Credibility determinations are for the trier of fact and cannot be reviewed on appeal.' State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). When reviewing the findings of fact from a bench trial, we limit our review solely to challenged findings. Rae v. Konopaski, 2 Wn. App. 92, 95, 467 P.2d 375 (1970). Unchallenged findings are verities on appeal. Wallace Real Estate Investment, Inc. v. Groves, 72 Wn. App. 759, 766, 868 P.2d 149, aff'd, 124 Wn.2d 881, 881 P.3d 1010 (1994). `When the facts are undisputed, and the only issues are questions of law, review is de novo.' Id. (citing DuVon v. Rockwell Int'l, 116 Wn.2d 749, 753, 807 P.2d 876 (1991)). Mr. Goodman has not assigned error to the trial court's findings of fact, but he argues the trial court's findings of fact do not support its legal conclusion of intent to deliver. The findings show the police officers conducting a search of a residence found Mr. Goodman there. Mr. Goodman stayed in a bedroom of the residence. The police found papers belonging to Mr. Goodman in his bedroom. In a dresser located in that bedroom, officers found a tin box containing six baggies containing a white powder substance. Three of those baggies tested positive for methamphetamine, with a total weight of 2.8 grams. Some of the baggies had a Playboy logo on them. Another tin found in the bedroom tested positive for methamphetamine.
The police found a safe in Mr. Goodman's bedroom. Within the safe, the officers found a scale, additional baggies, and a package labeled "accessory kit." CP at 21. Finding of Fact (FF) 11. The police found other baggies with a Playboy logo in the residence.
Two days before searching the residence, the police conducted a controlled buy with the help of a confidential informant (CI). The CI met Yvonne Estavillo for the purpose of buying drugs at a school two blocks from Mr. Goodman's residence. The CI and Ms. Estavillo drove together to Mr. Goodman's residence. The CI returned with four baggies containing 2.0 grams of methamphetamine. The four baggies obtained in the controlled buy had the same Playboy logo as the baggies later found within Mr. Goodman's residence. The trial court inferred Ms. Estavillo obtained the methamphetamine from Mr. Goodman's residence.
The trial court found an officer would have testified that an "eight-ball," one-eighth of an ounce, or about 3.5 grams is the upper limit for personal consumption of methamphetamine. CP at 22. Amounts above 3.5 grams indicate an individual is probably selling methamphetamine, but it is common for dealers to sell less than an "eight-ball." CP at 22. The CI bought 2 grams. The scale, the baggies containing methamphetamine, the other baggies, the amount of drugs, and the link between Mr. Goodman's residence and the controlled buy were consistent with methamphetamine sales according to the findings.
Amount alone is not enough to infer delivery. See, e.g., State v. Zunker, 112 Wn. App. 130, 135, 48 P.3d 344 (2002); State v. McPherson, 111 Wn. App. 747, 759, 46 P.3d 284 (2002). `Convictions for possession with intent to deliver are highly fact specific and require substantial corroborating evidence in addition to the mere fact of possession.' State v. Brown, 68 Wn. App. 480, 485, 843 P.2d 1098 (1993). The State must produce evidence of at least one other factor supporting an inference of intent to deliver. Zunker, 112 Wn. App. at 135; McPherson, 111 Wn. App. at 759. `The defendant's intent `must logically follow as a matter of probability from the evidence." McPherson, 111 Wn. App. at 759 (quoting State v. Campos, 100 Wn. App. 218, 222, 998 P.2d 893, review denied, 142 Wn.2d 1006 (2000)).
In addition to the amount of contraband, which in the case of methamphetamine can be as small as one gram for delivery purposes, factors such as a controlled buy, packaging material, and scales can support an inference of intent to deliver. See, e.g., Zunker, 112 Wn. App. at 136-37 (noting methamphetamine can be sold in one gram increments); State v. McNeal, 98 Wn. App. 585, 595, 991 P.2d 649 (1999), (noting existence of packaging material and razor blade used as a `cutting tool'), aff'd, 145 Wn.2d 352, 37 P.3d 280 (2002); State v. Brown, 68 Wn. App. 480, 484, 843 P.2d 1098 (1993) (noting officer observations of drug deals is a factor inferring intent); State v. Lane, 56 Wn. App. 286, 297, 786 P.2d 277 (1989) (noting scale seized along with drugs); State v. Harris, 14 Wn. App. 414, 418, 542 P.2d 122 (1975) (reasoning a scale can be a factor in determining intent to deliver).
Here, the amount of methamphetamine discovered in Mr. Goodman's house was small but nonetheless of marketable size. A recent controlled buy of two grams of methamphetamine was linked to his residence. Both the methamphetamine obtained from the controlled buy and the methamphetamine found at Mr. Goodman's residence were packaged in baggies with the same distinctive Playboy logo. Also seized from a safe in Mr. Goodman's residence were a scale and more `Playboy' baggies. CP at 21. And a photograph of seized items introduced into evidence shows a razor blade, which can be used in packaging methamphetamine for sale. McNeal, 99 Wn. App. at 595.
More than one factor indicating intent to deliver exists in the record. A reasonable person could infer from the findings that Mr. Goodman was involved in a methamphetamine delivery operation. Accordingly, the evidence was sufficient to support Mr. Goodman's conviction of possession of methamphetamine with intent to deliver. Having so found, it is unnecessary to discuss whether the trial court erred when imposing the school zone enhancement, an issue entirely dependent upon Mr. Goodman's evidence sufficiency challenge.
Affirmed.
SWEENEY and KURTZ, JJ., concur.