¶12 (concurring) — I agree with the majority that we should affirm Mark Eaton’s conviction, but for a different reason. I would hold that the possession statute under which he was convicted (which has since been amended) did not make the type of drug an essential element of the crime. Whether the drugs were amphetamine or cocaine, as identified at different stages, made no difference to the “possession” charge. If a surplus allegation varies from information to conviction, the variance requires reversal only if the defendant cannot adequately prepare for trial or faces double jeopardy, neither of which Eaton can establish.
¶13 “In all criminal prosecutions, the accused shall enjoy the right to ... be informed of the nature and cause of the accusation . . . .” U.S. Const, amend. VI.2 “In criminal prosecutions the accused shall have the right to ... demand the nature and cause of the accusation against him, [and] to have a copy thereof . . . .” Wash. Const, art. I, § 22.3 A charging document is proper if it includes all the essential *468elements of the crime charged. State v. Kjorsvik, 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991). The essential “elements of [a] crime” are “[t]he constituent parts of a crime ... that the prosecution must prove to sustain a conviction.” Black’s Law Dictionary 559 (8th ed. 2004). A crime’s essential elements, of course, depend on the criminal statute.
¶14 Before turning to the particular statute here, two of our holdings are useful. First, in State v. Miller, 71 Wn.2d 143, 426 P.2d 986 (1967), the State charged the defendant with two counts of assault with a deadly weapon after he punched a police officer, took his gun, and pointed the gun at him. The information alleged he assaulted the officer “ ‘with a weapon, to wit: a .38 calibre pistol....’” Id. at 144 n.2. The defendant argued his conviction was improper because the State did not prove that the pistol was, in fact, a .38. Id. at 145.
¶15 We rejected his argument. Id. at 146. We held the type of gun was a surplus fact, was not an essential element of the crime, and did not have to be proved. Id. As long as the State proved the defendant had a gun, it did not need to prove which kind, even though it alleged it in the information. Id.
¶16 In State v. Goodman, 150 Wn.2d 774, 779, 83 P.3d 410 (2004), prosecutors charged the defendant with possessing “meth” with the intent to deliver, meaning methamphetamine. The defendant did not challenge the information at trial but did so on appeal, claiming “meth” could be any number of illegal drugs. Id. at 778. We held the information charging intent to deliver must be specific only where the intent to deliver statute gave different punishments for different drugs. Id. It is constitutionally required that any fact increasing the statutory maximum be alleged and proved to a jury as an essential element of the crime. Id. “[T]he identity of the controlled substance is an element of the offense where it aggravates the maximum sentence ....” Id. at 785 (emphasis added). Goodman affirmed the conviction, holding the information provided sufficient notice *469applying the liberal construction required when challenged first on appeal.
¶17 Taken together, Miller and Goodman support the following holding: if a crime can be committed in one of several ways, the information need only allege, and the State need only prove, the specific way it was committed only where it affects the penalty facing the defendant.4
¶18 Here, the State charged Eaton with violating former RCW 69.50.401(d) (1998). The statute made it “unlawful for any person to possess a controlled substance.” Id. The essential elements were (1) the defendant’s possession (2) of a controlled substance. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). The statute punished possession with the same penalties, regardless of the type of substance possessed. Former RCW 69.50.401(d) (mandating a maximum five-year prison term and/or a maximum $10,000 fine for possession of any controlled substance).5
¶19 Each information charging Eaton included allegations that he (1) possessed (2) a controlled substance. Those are the two elements of the crime. Since the State properly notified Eaton of the essential elements, whether alleging the controlled substance was amphetamine or cocaine, it listed the crime’s essential elements. And since the type of *470drug did not affect the penalty Eaton faced, the information did not have to specify.6
¶20 The State did not have to include the type of drug in the information. However, it did so, at least once identifying the drug incorrectly. Our rule is clear. “[W]here unnecessary language is included in an information, the surplus language is not an element of the crime that must be proved unless it is repeated in the jury instructions.” State v. Tvedt, 153 Wn.2d 705, 718, 107 P.3d 728 (2005). When a surplus allegation varies between the charging document and proof at trial, the variance requires reversal if it prejudices the accused either by misleading him in making his defense or by exposing him to double jeopardy. Id.; see also United States v. Miller, 471 U.S. 130, 135, 105 S. Ct. 1811, 85 L. Ed. 2d 99 (1985); People v. Williams, 27 Cal. 2d 220, 226, 163 P.2d 692 (1945); People v. Tanner, 142 Ill. App. 3d 165, 169, 491 N.E.2d 776, 96 Ill. Dec. 497 (1986); Johnson v. State, 734 N.E.2d 530, 531 (Ind. 2000); State v. Reed, 204 W. Va. 520, 524, 514 S.E.2d 171 (1999).
¶21 Nor can Eaton argue he was misled in preparing his defense. While the second arraignment information showed the controlled substance as amphetamine, Judge Carey made clear on July 27, 2004 — over four months before trial — that cocaine was the controlled substance. She offered Eaton a continuance to prepare his defense, an offer he declined. At that hearing, Eaton’s counsel admitted, “realistically, I don’t expect that the prosecutor is going forward on possession of methamphetamine.” Report of Proceedings (July 27, 2004) at 3-4. The prosecutor offered to amend the information to read cocaine, but Judge Carey refused, believing it unnecessary. Eaton filed two pleadings before trial, both listing the charge as cocaine possession. One pleading even admits, “Mr. Eaton’s information was amended from Possession of Amphetamine to Possession of Cocaine.” Clerk’s Papers at 30. Finally, “the fact that an *471entire trial had already occurred when [Eaton] was preparing for this trial provides the best possible notice of precisely what was being argued.” Hopper, 118 Wn.2d at 159. Eaton was not misled.
¶22 Nor does the variance expose him to double jeopardy. Eaton was not tried on an amphetamine charge.
¶23 The two essential elements of controlled substance possession were that (1) Eaton had possession (2) of a controlled substance. The State was not required to allege the type of controlled drug possessed. That the State did allege the drug type, and once did so incorrectly, requires reversal only if Eaton was misled in preparing his defense or faced double jeopardy. Since he was not misled and did not face double jeopardy, I concur that Eaton’s conviction is valid.
The Fourteenth Amendment incorporates this provision against the states. See Cole v. Arkansas, 333 U.S. 196, 68 S. Ct. 514, 92 L. Ed. 644 (1948).
Article I, section 22 provides no broader rights than the federal Sixth Amendment. State v. Hopper, 118 Wn.2d 151, 157, 822 P.2d 775 (1992).
Eaton cites State v. Severas, 13 Wn.2d 542, 125 P.2d 659 (1942) as to the contrary. There, the information alleged the defendant violated one section of the criminal statute, but the jury was instructed on another section. Id. at 548. The case dealt only with variation from the section alleged to another section, not on alternative ways of violating the same section. State v. Cooper, 26 Wn.2d 405, 414, 174 P.2d 545 (1946). Whether possessing cocaine, amphetamine, or 72 grams of marijuana, Eaton violated the same section of the criminal law, and so Severas is inapposite.
The statute provided one exception by punishing possession of less than 40 grams of marijuana as a misdemeanor. See former RCW 69.50.401(e). Beyond that, it punished possession of all other drugs with the same penalties. Eaton never faced marijuana possession charges, and even if he did, the State alleged he possessed over 72 grams of it, leaving him outside the exemption.
Of course, if the information wholly omitted it, Eaton could have requested a bill of particulars, asking which drug he was supposed to have possessed. CrR 2.1(c).