Et!-:.~"'
-· :;;F~052Dirj
CHIEP
IN T 1f SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 89742-5
Petitioner, )
)
v. ) EnBanc
)
LARRY ALAN HAYES, )
)
Respondent. )
) Filed FEB 0 5 2015
JOHNSON, J.-This case involves whether a trial court may impose an
exceptional sentence on a defendant under the major economic offense sentence
aggravators found in RCW 9.94A.535(3)(d)(i) and (iii) when that defendant's
conviction was based on accomplice liability. We agree with the conclusion of the
Court of Appeals that the trial court improperly applied the sentence aggravators to
Larry Hayes. We affirm.
FACTS AND PROCEDURAL HISTORY
The State charged Larry Hayes with one count of leading organized crime
and one count of identity theft in the first degree, among several other charges. 1
1
Sixteen counts total: one count of leading organized crime, one count of identity theft in
the first degree, five counts of identity theft in the second degree, six counts of possession of
State v. Hayes (Larry A.), No. 89742-5
The State alleged that Hayes was involved in a complex identity theft scheme that
used stolen credit card information, including information stolen from a hair
salon's customer receipts, to manufacture false identification devices and credit
cards. These in turn would be used to make purchases and rent vehicles, usually
from out of state, with those rental vehicles sold for cash. The State also alleged
that each count (except for a drug charge) was subject to the sentence aggravators
for being a major economic offense.
On the first degree identity theft charge at issue in this case, the jury was
instructed that to convict, it must find "[t]hat on or about [the] period ... , the
defendant, or an accomplice, knowingly obtained, possessed, or transferred a
means of identification or financial information" of the victim. Resp't's Suppl.
Clerk's Papers at 146 (emphasis added). The trial court also instructed the jury that
to find the count was a major economic offense, the jury had to find at least one of
two factors beyond a reasonable doubt: (1) the crime involved multiple victims or
multiple incidents per victim or (2) the crime involved a high degree of
sophistication or planning or occurred over a lengthy period of time. These are two
of the statutory sentence aggravators for a major economic offense. The trial judge
explained that these two factors were alternatives: the jury should answer yes on
stolen property, two counts of possession of a stolen vehicle, and one count of possession of
methamphetamine. State v. Hayes, 164 Wn. App. 459, 464, 262 P.3d 538 (2011).
2
State v. Hayes (Larry A.), No. 89742-5
the special verdict form if all jurors found at least one alternative had been proved
beyond a reasonable doubt. Resp't's Suppl. Clerk's Papers at 177. The special
verdict forms themselves asked the jury, "Was the crime a major economic offense
or series of offenses?" Appellant's Clerk's Papers at 25. The jury found Hayes
guilty of all substantive offenses. The jury also entered a special verdict for each
conviction, stating that it found the offense to be a major economic offense. The
trial court imposed an exceptional sentence on the leading organized crime
conviction.
Hayes appealed his conviction for leading organized crime. State v. Hayes,
164 Wn. App. 459, 262 P.3d 538 (2011) (Hayes I). The Court of Appeals reversed
that conviction, thereby vacating the exceptional sentence. On remand for
resentencing on the remaining 11 convictions, 2 the State sought an exceptional
sentence on the count of identity theft in the first degree, which the trial court
imposed on the basis of the jury's special verdict. Hayes appealed again. The Court
of Appeals vacated the exceptional sentence and held that an exceptional sentence,
specifically the sentence aggravators for a major economic offense, could not be
imposed on a defendant convicted under accomplice liability, reasoning that absent
express language, those factors could not be applied to accomplices. State v.
2
One count of identity theft in the first degree, five counts of identity theft in the second
degree, and five counts of possession stolen property in the second degree.
3
State v. Hayes (Larry A.), No. 89742-5
Hayes, 177 Wn. App. 801, 312 P.3d 784 (2013) (Hayes II). The State was granted
review. State v. Hayes, 180 Wn.2d 1008,325 P.3d 913 (2014).
STANDARD OF REVIEW
This case rests on the interpretation ofRCW 9.94A.535(3)(d). Statutory
interpretation is a question of law, which we review de novo. State v. Armendariz,
160 Wn.2d 106, 110, 156 P.3d 201 (2007). This statute permits a judge to impose
an exceptional sentence if the jury finds that the current offense was a major
economic offense, which in turn is determined by consideration of any of four
statutory factors. Two of those factors are at issue here: the offense involved
multiple victims or multiple incidents per victim, or the offense involved a high
degree of sophistication and occurred over a lengthy period of time. RCW
9.94A.535(3)(d)(i), (iii).
ANALYSIS
Washington's criminal code has undergone substantial modification over the
past 40 years. In 1975, the legislature undertook an extensive overhaul, adopting
many provisions of the American Law Institute's Model Penal Code (Proposed
Official Draft 1962). In doing so, the legislature amended the complicity statute.
The previous statute, former RCW 9.01.030 (1909), provided that "[e]very person
concerned in the commission of a felony ... is a principal, and shall be proceeded
against and punished as such." (Emphasis added.) Punishment was coextensive
4
State v. Hayes (Larry A.), No. 89742-5
with liability under the former statute: an accomplice could receive the same
sentence as a principal. The current complicity statute, RCW 9A.08.020(3),
enacted in 197 5, while retaining liability for the substantive offense, no longer
contains the "and punished as such" language. By removing this language, the
legislature indicated that punishment for accomplices was no longer coextensive
with liability and that individual sentencing decisions would rest within the
discretion of the sentencing judge.
The legislature continued to move toward establishing more specific and
individualized punishments for offenders. After overhauling the criminal code, the
legislature passed the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW.
The SRA was meant to bring proportionality and uniformity to what had been a
highly discretionary sentencing scheme. See State v. Barnes, 117 Wn.2d 701, 710,
818 P.2d 1088 (1991). Its purpose was to "[e]nsure that the punishment for a
criminal offense is proportionate to the seriousness of the offense and the
offender's criminal history" and that such punishment be "commensurate with the
punishment imposed on others committing similar offenses." RCW 9.94A.010(1),
(3). By its extensive and detailed guidelines (standard sentencing ranges), the SRA
required sentencing judges to impose individualized punishment within a range on
the basis of the seriousness ofthe offense and the offender's criminal history.
5
State v. Hayes (Larry A.), No. 89742-5
Under the SRA as originally enacted, a judge could find facts to impose an
exceptional sentence, that is, one outside the standard sentencing range, if there
were "substantial and compelling reasons justifying" such a sentence. RCW
9.94A.535. In making this decision, sentencing judges considered the
circumstances of each defendant and their individual degrees of involvement. The
SRA was revised in response to the United States Supreme Court's decision in
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Now, unless stipulated by a defendant, the facts supporting an exceptional sentence
(other than a prior conviction) must be found by a jury beyond a reasonable doubt.
RCW 9.94A.537(3). As was done in this case, the jury indicates that it has found
facts supporting an aggravating factor by entering a special verdict.
In this case, Hayes was convicted as an accomplice. 3 The State alleged at
trial that two factors for the major economic offense aggravator applied to all but
one of the charges: first, that "[t]he current offense involved multiple victims or
multiple incidents per victim." RCW 9.94A.535(3)(d)(i), and second, that "[t]he
current offense involved a high degree of sophistication or planning or occurred
over a lengthy period of time." RCW 9.94A.535(3)(d)(iii). The court instructed the
3
Although the instructions permitted the jury to convict Hayes either as principal or
accomplice, the State does not argue that sufficient evidence exists to find that Hayes was
convicted as a principal. Therefore, we analyze the issue as if Hayes was convicted as an
accomplice.
6
State v. Hayes (Larry A.), No. 89742-5
jury that if it found either of these two factors were present, it should answer yes to
the special' verdict's question "[w]as the crime a major economic offense or series
of offenses?" Appellant's Clerk's Papers at 25. The jury entered a special verdict
in the affirmative for each conviction. On the basis of these special verdicts, the
trial judge imposed an exceptional sentence on the leading organized crime
conviction. That conviction was overturned on appeal. On remand, the State sought
an exceptional sentence on all remaining convictions. However, the sentencing
judge ruled that only the first degree identity theft conviction warranted the
exceptional sentence for being a major economic offense. It is in this context that
we analyze the validity of Hayes's exceptional sentence.
The Court of Appeals, in reaching its conclusion, reasoned that since the
legislature did not expressly include language making the major economic offense
aggravators applicable to accomplices, the sentencing judge had no authority to
impose an exceptional sentence on Hayes. Hayes II, 177 Wn. App. at 806. The
State argues, however, that our case law permits imposing an exceptional sentence
on accomplices even in the absence of express language. While we agree with the
State's characterization of our cases, we nevertheless agree with the Court of
Appeals' resolution ofthis case.
When reviewing a sentence aggravator or enhancement, in the absence of
express triggering language, we look to the defendant's own misconduct to satisfy
7
State v. Hayes (Larry A.), No. 89742-5
the operative language of the statute. Because the legislature has removed the "and
punished as such" language from the current complicity statute, and because the
SRA requires punishment that is tailored to individual culpability, a sentencing
judge can impose an exceptional sentence on an accomplice only where the
accomplice's own conduct informs the aggravating factor. Otherwise, failure to
analyze the aggravator in relation to the accomplice's own conduct would be
tantamount to automatically making accomplice liability for the substantive
offense and punishment for the offense coextensive.
As we acknowledged in State v. McKim, 98 Wn.2d 111, 653 P.2d 1040
(1982), the legislature disapproved of this "automatic" approach when it amended
the complicity statute. In McKim, we were asked whether the former deadly
weapon statute, which increased punishment for an "accused [who] was armed
with a deadly weapon," could be applied to an accomplice who was not personally
armed but whose codefendant was. Former RCW 9.95.015 (1961). 4 We started our
analysis by looking for guidance from what we characterized as a "triggering
device" present in the operative language of the statute. McKim, 98 Wn.2d at 116.
4
"[T]he court shall make a finding of fact of whether or not the accused was armed with
a deadly weapon, as defined by RCW 9.95.040, at the time of the commission of the crime, or if
a jury trial is had, the jury shall, if it find the defendant guilty, also find a special verdict as to
whether or not the defendant was armed with a deadly weapon, as defined in RCW 9.95.040, at
the time of the commission of the crime."
8
State v. Hayes (Larry A.), No. 89742-5
Because the statute lacked such language, we held that "any sentence enhancement
must depend on the accused's own misconduct." McKim, 98 Wn.2d at 117.
We went on to conclude that the deadly weapon enhancement could apply to
an unarmed accomplice, reasoning that the accomplice could be constructively
armed with a deadly weapon if his codefendant were armed. This in turn required a
finding that the accomplice had knowledge that his codefendant was armed.
However, the jury in that case was instructed that "'if one of the two participants is
armed with a ... deadly weapon, then both are considered to be so armed."'
McKim, 98 Wn.2d at 118 (alteration in original) (quoting trial court record). We
vac~ated the enhancement because there was no finding regarding the defendant's
knowledge that the codefendant was armed. Without such a finding of knowledge,
we reasoned that the jury instruction "amounts to a conclusive presumption that
petitioner knew his codefendant was armed at the time of the offense." McKim, 98
Wn.2d at 119.
McKim's focus on the defendant's own conduct remains the foundation of
the analysis where there is no express language imposing an enhanced sentence on
an accomplice. For example, in State v. Pineda-Pineda, 154 Wn. App. 653, 226
P.3d 164 (2010), the Court of Appeals was asked whether the "drug free zone"
9
State v. Hayes (Larry A.), No. 89742-5
sentence enhancement, 5 which increases punishment for any person who commits
a drug sale occurring within 1,000 feet of a school bus stop, could apply where the
accomplice was not physically present in the school zone. We reserved answering
this question when discussing the same enhancement in State v. Silva-Baltazar,
125 Wn.2d 472, 474, 886 P.2d 138 (1994). Applying the reasoning from McKim,
the Court of Appeals vacated a "drug free zone" sentence enhancement because
. there was no evidence in the record that the accomplice himself was present in the
school zone. In other words, the defendant's own conduct (namely, his absence
from the school zone) did not support imposing a sentence enhancement, which is
premised on physical presence in the school zone, absent a more specific finding
that the defendant had knowledge the crime would occur within the zone.
The State argues that when the language of an aggravating factor is focused
on "the current offense," as the factors at issue here are, then that factor applies to
an accomplice and "should not be assessed on an individualized basis, but apply
equally to all participants in a crime regardless of whether they are a minor or
major participant." Suppl. Br. ofPet'r at 17. In essence, the State asks us to revert
back to the 1909 complicity statute and its coextensive "punished as such"
provision, depending on nothing more than subtle nuances in the phrasing of
5
RCW 69.50.435.
10
State v. Hayes (Larry A.), No. 89742-5
certain factors. But as noted above, our case law is quite clear that the legislature,
both by amending the complicity statute in 1975 and enacting the SRA in 1981,
has abolished an approach that imposes automatic and coextensive punishment on
accomplices unless it expressly indicates otherwise in the text of the statute. And
under the State's view, so long as "the current offense" constitutes a major
economic offense, every accomplice qualifies for an exceptional sentence, leaving
the decision to impose an exceptional sentence to the sentencing judge. The State
reasons that because they are not compelled to impose an exceptional sentence,
sentencing judges, in exercising their discretion, will "sort out" the less culpable
defendants when choosing the appropriate sentence. But such an overbroad
interpretation of these sentence aggravators would undermine the aims of the SRA,
which seeks to funnel judicial discretion and to establish consistency and
uniformity in sentencing.
We hold that for aggravating factors that are phrased in relation to "the
current offense" to apply to an accomplice, the jury must find that the defendant
had some knowledge that informs that factor. Because factors phrased in this way
potentially permit imposing an exceptional sentence more broadly than would be
consistent with the SRA, this finding of knowledge ensures that the defendant's
own conduct formed the basis of the sentence. In this case, the jury's special
verdict should have asked whether the Hayes had knowledge that informs the
11
State v. Hayes (Larry A.), No. 89742-5
factors on which they were instructed: for example, whether Hayes knew that the
offense would have multiple victims or multiple incidents per victim, or whether
Hayes knew that the offense involved a high degree of sophistication or planning
or would occur over a lengthy period of time.
We cannot tell from the jury's special verdict if it found that Hayes had any
knowledge that informs the aggravating factors for a major economic offense, such
as whether he knew the offense would involve multiple victims or would involve a
high degree of sophistication. The jury was instructed on two factors phrased in
relation to "the current offense," not in relation to "the defendant." In essence, the
aggravating factors and special verdict form asked the jury about the nature of the
offense, not about Hayes's role in it. It is this critical question that the jury's
special verdict does not answer. Without a finding of knowledge that indicates that
the jury found the aggravating factors on the basis of Hayes's own conduct, they
cannot apply to Hayes. Because we cannot determine from the jury findings
whether the exceptional sentence was based improperly on automatic liability for
the offense, we vacate his exceptional sentence.
12
State v. Hayes (Larry A.), No. 89742-5
CONCLUSION
Because we cannot tell from the jury's special verdict whether it found that
Hayes had knowledge that informs the aggravating factors on which it was
instructed, we affirm the Court of Appeals' decision vacating his sentence and
remand for resentencing.
WE CONCUR:
13
State v. Hayes (Larry Alan)
No. 89742-5
STEPHENS, J. (dissenting)-The majority holds "that for aggravating
factors that are phrased in relation to 'the current offense' to apply to an
accomplice, the jury must find that the defendant had some knowledge that informs
that factor." Majority at 11. This rule has no grounding in our precedent. It
effectively adds a knowledge element to exceptional sentencing factors that do not
require proof that any participant in the crime knew the crime was a major
economic offense. And because this added knowledge element applies only to
accomplice liability, the majority's rule also requires a jury determination of each
coparticipants' role in a jointly committed crime, thus changing how coparticipants
have long been tried. I would follow the plain language of RCW
9.94A.535(3)(d)(i) and (iii) and hold that participation in a crime that qualifies as a
major economic offense under subsections (3)(d)(i) or (iii)-whether as a principal
or an accomplice-justifies an exceptional sentence. Therefore, I respectfully
dissent.
State v. Hayes (Larry Alan), 89742-5 (Stephens, J. Dissent)
The starting point of the majority's analysis is its assertion that Larry Alan
Hayes was convicted as an accomplice, although the jury was permitted to convict
him as either a principal or an accomplice. The jury's verdict form does not
identify on what theory it found Hayes guilty. Nor is this question generally put to
the jury. "[P]rincipal and accomplice liability are not alternative means of
committing a single offense." State v. McDonald, 138 Wn.2d 680, 687, 688, 981
P.2d 443 (1999) (noting, "we have made clear the emptiness of any distinction
between principal and accomplice liability"). The jury need not determine whether
a defendant acted as a principal or an accomplice in a crime so long as it is
convinced that the defendant participated in the crime. State v. Teal, 152 Wn.2d
333, 339, 96 P.3d 974 (2004) (quoting State v. Carothers, 84 Wn.2d 256, 261, 525
P.2d 731 (1974). 1 Nonetheless, the majority repeats an assertion made by the
Court of Appeals that "the State does not argue that sufficient evidence exists to
find that Hayes was convicted as a principal," majority at 6 n.3, and therefore
concludes we must consider his conviction to rest on accomplice liability. I
frankly do not understand why the State has the burden here when Hayes has not
challenged the sufficiency of the evidence.
1
Constitutional concerns require a finding of "major participation" by an
accomplice in certain circumstances. See State v. Roberts, 142 Wn.2d 471, 505-06, 14
P .3d 717 (2000) (requiring such finding in order to impose death sentence on accomplice
to premeditated first degree murder based on federal and state constitutional prohibitions
against cruel punishment). Hayes does not raise any constitutional issues, and sentence
enhancement statutes differ materially from the aggravating factors in Roberts. See State
v. Pineda-Pineda, 154 Wn. App. 653, 663 n.4, 226 P.3d 164 (2010) (distinguishing
Roberts from cases involving school zone and firearm sentence enhancement statutes).
-2-
State v. Hayes (Larry Alan), 89742-5 (Stephens, J. Dissent)
Certainly we must assume, based on the jury instructions, that Hayes's
conviction could rest on accomplice liability, and we must analyze RCW
9.94A.535(3)( d)(i) and (iii) accordingly. But this is different from presupposing
that we know from the record and the jury's verdict who was a principal and who
was an accomplice. Because the majority purports to know that only accomplice
liability is at issue here, it criticizes the jury's verdict for failing to contain findings
that are never made. See majority at 12 ("We cannot tell from the jury's special
verdict if it found that Hayes had any knowledge that informs the aggravating
factors for a major economic offense."). It is only in light of the majority's new
rule that trial judges will now need to have the jury decide (unanimously, I
suppose) who is a principal and who is an accomplice so that the judge can then
instruct the jury to find knowledge of offense-specific aggravating circumstances
with respect to an accomplice. A more sensible application of the exceptional
sentence statute would allow it to operate within the existing framework of
coparticipant liability.
The jury instructions, to which Hayes does not assign error, told the jury that
if it found the defendant guilty of the enumerated charges, then it was required to
determine whether the crime on which it found the defendant guilty was a major
economic offense. Resp't's Suppl. Clerk's Papers (Resp't's CP) at 176
(Instruction No. 44). The jury was then provided with two ways, introduced in the
alternative, to find a major economic offense: (1) the crime involved multiple
victims or multiple incidents per victim or (2) the crime involved a high degree of
-3-
State v. Hayes (Larry Alan), 89742-5 (Stephens, J. Dissent)
sophistication or planning or occurred over a lengthy period of time. Id. at 177
(Instruction No. 45); see RCW 9.94A.535(3)(d)(i), (iii). The language of these
enhancement factors differs from the language used in the fourth statutory
alternative for a major economic offense under RCW 9.94A.535(3)(d), which
speaks directly to the defendant's conduct. 2 Neither factor at issue in this case
references the "defendant" or "offender," because the participant's conduct is not
the focus. The factors focus on particular aggravating circumstances of the crime,
confirming the legislature's intent for the enhancement to apply based on the facts
of the offense. The majority acknowledges that the major economic offense
aggravator, as presented with these factors, pertains to the offense for which the
defendant is liable rather than the defendant's individual conduct. Majority at 11.
Yet, the majority requires extrastatutory findings relating to the defendant's
conduct. It does so based on a fundamental misreading of precedent.
The majority relies on State v. McKim, 98 Wn.2d 111, 653 P.2d 1040
(1982). It correctly recognizes that under McKim the complicity statute does not
provide the relevant triggering language to apply an exceptional sentencing factor
to an accomplice and that therefore we must look to the language of the
enhancement statute itself. Majority at 8; McKim, 98 Wn.2d at 116-17. However,
the majority mistakenly reduces the holding in McKim to the proposition that an
accomplice must be punished based on his own conduct, necessitating a finding
2 "The defendant used his or her position of trust, confidence, or fiduciary
responsibility to facilitate the commission of the current offense." RCW
9.94A.535(3)(d)(iv) (emphasis added).
-4-
State v. Hayes (Larry Alan), 89742-5 (Stephens, J. Dissent)
that he had knowledge of the aggravating circumstances of the crime. Majority at
9-11.
This is inconsistent with our reading of McKim in State v. Silva-Baltazar,
125 Wn.2d 472, 886 P.2d 138 (1994). In that case, we clarified that the knowledge
analysis in McKim was based not on accomplice versus principal liability, but on
the elements for proving constructive possession of a firearm under the
enhancement statute at issue in McKim. ld. at 481-82. We found the analysis in
McKim inapplicable to the drug-free school zone enhancement statute because that
statute "does not require knowledge on the part of any of the participants." ld. at
482 (further noting, "[i]t is irrelevant whether a person is aware that he or she is
carrying on the prohibited drug activity in a drug-free zone"). Instead of McKim,
we relied on the Davis 3 analysis of strict liability for "all those involved" in the
substantive crime and found that the McKim knowledge analysis cannot apply to a
sentence enhancement that is strictly based on the offense. ld. As in Silva-
Baltazar, the enhancement factors at issue here are based on the offense itself, so
there is no statutory language requiring a finding of knowledge in order to apply
the enhancement to an accomplice.
Relying on its erroneous reading of McKim, the majority insists that in order
for the imposition of a particular enhancement to be based on the defendant's own
conduct, "the jury must find that the defendant had some knowledge that informs
that factor." Majority at 11. Otherwise, reasons the majority, such aggravating
3 State v. Davis, 101 Wn.2d 654,658-59,682 P.2d 883 (1984).
-5-
State v. Hayes (Larry Alan), 89742-5 (Stephens, J. Dissent)
factors "potentially permit imposing an exceptional sentence more broadly than
would be consistent with the SRA [Sentencing Reform Act of 1981, ch. 9.94A
RCW]." Id. I disagree. First, we are obligated to apply RCW 9.94A.535(e)(d)(i)
and (iii) in a way that respects the plain, broad language. The different language
throughout RCW 9.94A.535(3) reflects a legislative intent to apply certain
aggravators narrowly (to the individual) and others more broadly (to the crime
itself). If we accept the majority's reasoning, we run the risk of not allowing
aggravators that plainly pertain to the offense to apply in the same manner
regardless of whether an individual is convicted as a principal or an accomplice.
Applying the factors consistently to the offense does not make the statute
overbroad.
Second, there is no conflict with the SRA simply because the enhancement
factors apply based on the facts of the offense rather than the offender's conduct.
The goal of the SRA is to provide consistency in sentencing by focusing on the
offender's criminal history and the seriousness of the offense, so that punishment is
tailored to individual culpability. RCW 9.94A.010. The majority's argument rests
on the premise that accomplice liability for the offense cannot be coextensive with
punishment. Majority at 8, 10-11. But, this premise merely confirms that we
cannot rely on the complicity statute to impose an enhanced sentence. It does not
follow that punishment must necessarily be different as between an accomplice and
a principal who are liable for the same crime. In fact, the SRA's goal of
consistency in sentencing is served by recognizing that the seriousness of the crime
-6-
State v. Hayes (Larry Alan), 89742-5 (Stephens, J. Dissent)
remains the same as to each coparticipant. By requiring a knowledge finding in
order to enhance an accomplice's sentence, but not a principal's, the majority's
rule undermines the SRA and results in disparate sentences for equally culpable
defendants. It makes no sense that a principal should be punished regardless of
whether he or she knew the crime of conviction was a major economic offense but
an accomplice-who committed the same crime-should not be.
More fundamentally, the majority's rule makes the question we never ask
the jury to determine-whether the defendant acted as a principal or an
accomplice-potentially the most important question for purposes of sentencing.
The majority vacates Hayes's exceptional sentence because there is no jury finding
that he knew the substantive crimes he committed were major economic offenses.
But, the majority does not address how a jury will need to be instructed in the
future in order to accommodate its rule. Clearly, most of the jury instructions
given in this case would need to be overhauled, including those describing
accomplice liability and the "to convict" instructions that allow a conviction to be
based on either principal or accomplice liability. There will also need to be
separate instructions on whether each substantive crime constitutes a major
economic offense and whether the defendant knew this. It is no exaggeration to
say that the way coparticipants have long been tried in this state will need to
change in order to accommodate the knowledge finding that the majority
superimposes on the enhancement statute.
-7-
State v. Hayes (Larry Alan), 89742-5 (Stephens, J. Dissent)
I would apply the statute as it is written. An exceptional sentence is
authorized because the jury convicted Hayes of substantive crimes that it found
constituted major economic offenses under RCW 9.94A.535(3)(d)(i) or (iii). The
statute deems it irrelevant whether Hayes knew the crimes were major economic
offenses. It metes out punishment based on Hayes's individual culpability for the
crimes he committed, consistent with the SRA's goal of individualized sentencing.
I would reverse the Court of Appeals and reinstate Hayes's exceptional sentence.
-8-
State v. Hayes (Larry Alan), 89742-5 (Stephens, J. Dissent)
I
-Yflo_~,C.
,_
~u:f~z}
-9-