State v. Valdobinos
In State v. Valdobinos, 122 Wn.2d 270, 280, 858 P.2d 199 (1993), the Court found the following "to convict" instruction erroneous:
"That between the 9th and 13th days of December, 1990, the defendant agreed with one or more persons to engage in or cause the performance of conduct constituting the crime of Delivery of A Controlled Substance." 122 Wn.2d at 280.
The flaw in the instruction, the Court noted, was the failure to require the jury to find there was a third person involved.
Thus, the jury might have convicted after finding the defendant and only one other person were parties to the conspiracy to deliver, when the crime of Conspiracy to Deliver a Controlled Substance requires involvement of three or more persons.
The Court said:
"Where both delivery and conspiracy are alleged, the conspiracy must allege the involvement of a person additional to those involved in the delivery." Id.