Gonzalez appeals his jury trial convictions and sentence for
unlawful possession of a controlled substance
(methamphetamine) and tampering with a witness. He argues
that (1) the "to-convict" instruction for the
unlawful possession of a controlled substance charge omitted
an essential element because it failed to identify the
controlled substance he possessed, (2) this error is not
harmless as to the conviction or sentence, and (3) the
witness tampering conviction must be reversed because there
was insufficient evidence to prove that he attempted to
induce a witness to testify falsely.
agree that the identity of the controlled substance is an
essential element of the offense of unlawful possession of a
controlled substance and that it was error not to identify
the substance in the to-convict instruction. But we hold that
the error was harmless as to the conviction. However, we hold
that the unauthorized sentence resulting from the unlawful
possession of a controlled substance conviction is not
subject to a harmless error analysis. We further hold that
the evidence was sufficient to support the witness tampering
conviction. Accordingly, we affirm the convictions, but we
remand for resentencing on the unlawful possession of a
controlled substance conviction.
Theft of the Jeep and Arrest
was in a relationship with Nona Hook for several years. Hook
lived with her mother, Carol Salyers, and several other
family members, and Gonzalez was frequently in the home.
Salyers owned a Jeep and permitted Hook, but not Gonzalez, to
evening of September 17, 2015, Hook and Gonzalez argued while
in the Jeep. According to Hook, after the argument, she
dropped Gonzalez off at a gas station, returned home, parked
the Jeep, left the Jeep keys near the back door where her
mother usually put them, and went to bed.
the next morning, Hook awoke to find Gonzalez in her room
asking her if she wanted some coffee. Hook told him to leave
her alone. When he left, she went back to sleep. Later that
morning, Salyers discovered that her keys and her Jeep were
missing. Salyers contacted the police and reported that her
Jeep had been stolen.
early morning hours of September 21, Gonzalez called Hook,
and she asked him if he had taken the Jeep. According to
Hook, Gonzalez denied knowing anything about the Jeep, but he
told her that he was "coming home." 2 Report of
Proceedings (RP) at 195. At some point after this call,
someone contacted the police.
police were waiting when Gonzalez arrived at Hook's home
in the Jeep. Upon seeing the police, Gonzalez drove away,
jumped out of the Jeep while it was still moving, and
attempted to flee on foot. The Jeep rolled into and damaged a
parked vehicle. The police caught and arrested Gonzalez.
Following his arrest, officers discovered a white substance
that later tested positive for both methamphetamine and
cocaine in Gonzalez's back pocket.
in jail following his arrest, Gonzalez called Hook. This call
the call, Gonzalez insisted that Hook listen to him and told
her that some people were trying to contact her and that when
his "investigator" or "somebody" called
her, she was to tell them that she "gave [him]
permission." Ex. 1A at approx. 7 min. Hook responded,
"Tell them that I gave you permission, " and
Gonzalez interrupted her and told her to "listen"
and said adamantly, "That's it." Ex. 1A at
approx. 7 min. 8 sec. Hook responded by chuckling and saying,
"That's gonna be a little bit hard for me to
do." Ex. 1A at approx. 7 min. 14 sec. Gonzalez appears
to respond, "Well, then don't do it." Ex. 1A at
approx. 7 min. 18 sec. The rest of Gonzalez's response is
replied, "I mean, for one thing, I was-you already know
what the deal was." Ex. 1A at approx. 7 min. 24 sec. And
Gonzalez told her aggressively to "listen" and that
they were not "going to talk about all that." Ex.
1A at approx. 7 min. 33 sec. He then stated, "You know
what to do, so." Ex. 1A at approx. 7 min. 37 sec.
and Hook then talked about when Hook could visit so they
could talk about their relationship and whether they would
marry even if he was in prison. During this part of the
conversation, Hook commented about how hard it was for her to
be away from him, and Gonzalez responded by asking her
whether she "would rather deal with" 6 or 15 years.
Ex. 1A at approx. 10 min. 33 sec.-10 min. 45 sec.
State charged Gonzalez by amended information with theft of a
motor vehicle, unlawful possession of a controlled substance
(methamphetamine) under RCW 69.50.4013,  hit and run, and
tampering with a witness. Although a forensic examination of
the white substance revealed both methamphetamine and
cocaine, the amended information stated that Gonzalez had
unlawfully possessed "a controlled substance, to-wit:
Methamphetamine, classified under Schedule II of the Uniform
Controlled Substances Act" and did not mention cocaine.
Clerk's Papers (CP) at 5-6.
case proceeded to a jury trial. During its opening statement,
the State briefly mentioned that the arresting officers had
found methamphetamine when they searched Gonzalez following
his arrest. Neither the State nor defense counsel mentioned
cocaine or any drug other than methamphetamine in their
State presented testimony from Salyers, Hook, the arresting
officers, the woman who owned the car that the Jeep hit, and
the forensic scientist who tested the white substance found
in Gonzalez's pocket. Their testimony is consistent with
the facts set out above. Gonzalez did not present any
addition to the facts set out above, Hook listened to the
recording of Gonzalez's call to her from the jail as it
was played for the jury and testified about it. Hook
testified that she loved Gonzalez and that it was hard for
her to testify. When the State asked her what she meant when
she told Gonzalez during the phone call that it would be hard
for her to say that she had given him permission to drive the
Jeep, Hook responded, "What - what I meant was it would
be hard for me to say that I had given him permission. I
mean, after we called the police and all of that, I can't
go back and then say I gave you permission. I would look like
a dumbass." 3 RP at 215. When the State asked Hook if
she had at some point considered trying to help Gonzalez
"get out of all of this, " Hook responded,
"Get out of jail? No, I couldn't; that's my mom
- I mean, my mom's car. I mean, I love him, but
that's my parent." 3 RP at 215-16.
cross-examination, defense counsel asked Hook if she thought
Gonzalez "was actually trying to get [her] to change
what [she] would otherwise say." 3 RP at 217. Hook
responded, "I think that he was just talking because he
knows that I would not do that. I mean, I don't know what
he - I really can't say. He knows I wouldn't change
my mind. He knows me well enough." 3 RP at 217. She
stated that she was "hard-headed, " so it did not
matter what Gonzalez said. 3 RPat217.
acknowledged that during the call, she told Gonzalez that
"the most difficult thing for [her] to do [was] being
apart from him." 3 RP at 234. She also acknowledged she
knew that if she did not say she gave him permission to take
the car, they could end up being apart longer, perhaps as
long as 6 to 15 years.
further testified that although she knew that Salyers did not
want Gonzalez driving the Jeep, she (Hook) had occasionally
allowed him to drive the Jeep when it was in her possession
until Salyers found out about it. But Hook stated that
Gonzalez knew he was not supposed to drive the Jeep. And at
no point did Hook testify that she gave Gonzalez permission
to drive the Jeep on the night it was taken.
the police officers who arrested Gonzalez testified, they
stated that they believed the white substance they found in
his pocket was methamphetamine and that a field test
confirmed this suspicion. Neither officer mentioned cocaine
or any drug other than methamphetamine. But a forensic
scientist later testified that the white substance found in
Gonzalez's possession contained both methamphetamine and
their closing arguments, neither party mentioned cocaine. But
defense counsel referred the jury to the forensic
scientist's testimony, arguing, "The drugs we have
just - we found them in his pocket. It's not really
anything, except those are in his pocket. That's in his
pocket, that's in his possession. You heard from a tech
that those are drugs; that's [unlawful possession of a
controlled substance]. Okay." 3 RP at 319.
to-convict instruction for the unlawful possession of a
controlled substance charge provided, 
To convict the defendant of the crime of possession of a
controlled substance, as charged in Count II, each of the
following elements of the crime must be proved beyond a
(1) That on or about the 21st day of September, 2015, the
defendant possessed a controlled substance; and
(2) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has
been proved beyond a reasonable doubt, then it will be your
duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you
have a reasonable doubt as to any one of these elements, then
it will be your duty to return a verdict of not guilty.
CP at 32 (emphasis added). The instruction did not identify
the type of controlled substance, but it did refer to the
offense "as charged in Count II." CP at 32.
addition, jury instruction 17 stated, "It is a crime for
any person to possess a controlled substance." CP at 31.
And jury instruction 20 stated, "Methamphetamine is a
controlled substance." CP at 34. There was no similar
instruction stating that cocaine or any drug ...