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# 1f SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 89742-5 Petitioner, ) ) v. ) EnBanc ) LARRYALAN HAYES, ) ) Respondent. ) 

## FEB 05

## 2015 ) Filed JOHNSON, J.-This case involves whether atrial courtmay impose an exceptional sentence on a defendantunder the major economic offense sentence aggravators found in RCW 9.94A.535(3)(d)(i) and (iii) whenthat defendant's conviction was based on accomplice liability. We agree withthe conclusion ofthe Court ofAppeals thatthe trial court improperly applied the sentence aggravators to Larry Hayes. We affirm.FACTS AND PROCEDURAL HISTORY The State charged Larry Hayes with one count ofleading organized crime and one count ofidentity theft in the first degree, among several other charges. 1

1Sixteen counts total: one count ofleading organized crime, one count ofidentity theft in the first degree, five counts ofidentitytheft in the second degree, six counts ofpossession ofState v. Hayes (LarryA.), No. 89742-5
The State alleged thatHayes was involved in a complex identity theft scheme that used stolen credit card information, including information stolen from a hair salon's customerreceipts, to manufacture false identification devices and credit cards. These in turn wouldbeusedto make purchases and rentvehicles, usually from out ofstate, with those rental vehicles sold for cash. The State also alleged that each count (except for a drug charge) was subjectto the sentence aggravators for being a major economic offense. Onthe first degree identity theft charge at issue in this case, thejurywas instructed thatto convict, it must find "[t]hat on or about [the] period
... , the defendant, oran accomplice, knowingly obtained, possessed, or transferred a
means ofidentification or financial information" ofthe victim. Resp't's Suppl. Clerk's Papers at 146 (emphasis added). The trial court also instructedthejurythat to find the count was a major economic offense, thejuryhadto find at least one of two factors beyond areasonable doubt: (1) the crime involved multiple victims or multiple incidents per victim or (2) the crime involved a high degree of sophistication orplanning or occurred over a lengthy period oftime. These are two ofthe statutory sentence aggravators for a major economic offense. The trialjudge explainedthatthese two factors were alternatives: thejury should answer yes on

stolen property, two counts ofpossession ofa stolen vehicle, and one count ofpossession of methamphetamine. State v. Hayes, 164 Wn. App. 459, 464, 262 P.3d 538 (2011). 2State v. Hayes (LarryA.), No. 89742-5
the special verdict form ifalljurors found at least one alternative hadbeenproved beyond a reasonable doubt. Resp't's Suppl. Clerk'sPapers at 177. The special verdict forms themselves asked thejury, "Wasthe crime a major economic offense
or series ofoffenses?" Appellant's Clerk's Papers at 25. Thejury found Hayes guilty ofall substantive offenses. Thejury also entered a special verdict for each conviction, stating that it found the offense to be a major economic offense. The trial courtimposed an exceptional sentence onthe 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 ofAppeals reversed that conviction, thereby vacating the exceptional sentence. Onremand for resentencing on the remaining 11 convictions,2the State sought an exceptional sentence on the count ofidentity theft inthe first degree, whichthetrial court imposed on the basis ofthejury's special verdict. Hayes appealed again. The Court ofAppeals vacated the exceptional sentence andheldthat an exceptional sentence, specifically the sentence aggravators for a major economic offense, could not be imposed on a defendant convictedunder accomplice liability, reasoning thatabsent express language, those factors could notbe appliedto accomplices. State v.

2 One count ofidentity theft in the first degree, five counts ofidentitytheft inthe second degree, and five counts ofpossession stolenproperty inthe second degree. 3State v. Hayes (LarryA.), 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 ofRCW9.94A.535(3)(d). Statutory interpretation is a question oflaw, which we review de novo. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). This statute permits ajudgeto impose
an exceptional sentence ifthejury finds that the current offense was a major economic offense, which in turn is determined by consideration ofany offour statutory factors. Two ofthose factors are at issue here: the offense involved multiple victims or multiple incidents pervictim, or the offense involved ahigh degree ofsophistication and occurred over a lengthy period oftime. RCW 9.94A.535(3)(d)(i), (iii). ANALYSIS Washington's criminal code has undergone substantial modification over the past40 years. In 1975, the legislature undertook an extensive overhaul, adopting many provisions ofthe American Law Institute'sModelPenal Code (Proposed Official Draft 1962). In doing so, the legislature amendedthe complicity statute. Theprevious statute, former RCW 9.01.030 (1909), providedthat "[e]veryperson concerned in the commission ofa felony
... is a principal, and shall be proceeded against andpunishedas such." (Emphasis added.) Punishmentwas coextensive 4State v. Hayes (LarryA.), No. 89742-5
with liability underthe former statute: an accomplice couldreceive the same sentence as a principal. The current complicity statute, RCW 9A.08.020(3), enacted in 1975, while retaining liability for the substantive offense, no longer contains the "andpunished as such" language. Byremoving this language, the legislature indicatedthatpunishment for accomplices was no longer coextensive with liability andthat individual sentencing decisions would rest withinthe discretion ofthe sentencingjudge. The legislature continued to move toward establishing more specific and individualizedpunishments for offenders. After overhauling the criminal code, the legislature passed the Sentencing Reform Act of 1981 (SRA), chapter 9.94ARCW. The SRA was meantto bring proportionality and uniformity to whathad 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 thatthe punishment for a criminal offense is proportionate to the seriousness ofthe offense and the offender's criminal history" and that such punishmentbe "commensurate with the punishment imposed on others committing similar offenses." RCW 9.94A.010(1), (3). By its extensive and detailed guidelines (standard sentencingranges), the SRA required sentencingjudgesto impose individualizedpunishmentwithin a range on the basis ofthe seriousness ofthe offense and the offender's criminal history.



### 5State v. Hayes (LarryA.), No. 89742-5
Under the SRA as originally enacted, ajudge could find facts to impose an exceptional sentence, that is, one outsidethe standard sentencingrange, ifthere
were "substantial and compellingreasonsjustifying" such a sentence. RCW 9.94A.535. In making this decision, sentencingjudges consideredthe circumstances ofeach defendant and their individual degrees ofinvolvement. 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 stipulatedby a defendant, the facts supporting an exceptional sentence (other than a prior conviction) mustbe found by ajurybeyond a reasonable doubt. RCW 9.94A.537(3). As was done in this case, thejury indicates that it has found facts supporting an aggravating factor by entering a special verdict. In this case, Hayes was convicted as an accomplice.3The State alleged at trial thattwo factors for the major economic offense aggravator applied to all but
one ofthe charges: first, that "[t]he current offense involved multiple victims or multiple incidents pervictim." RCW 9.94A.535(3)(d)(i), and second, that "[t]he current offense involved a high degree ofsophistication orplanning or occurred
over a lengthy period oftime." RCW 9.94A.535(3)(d)(iii). The courtinstructedthe

3 Althoughthe instructions permitted thejuryto 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 analyzethe issue as ifHayes was convicted as an accomplice. 6State v. Hayes (LarryA.), No. 89742-5 jurythat ifit found either ofthese two factors were present, it should answer yes to the special'verdict's question "[w]as the crime a major economic offense or series ofoffenses?" Appellant's Clerk's Papers at 25. Thejury entered a special verdict in the affirmative for each conviction. On the basis ofthese special verdicts, the trialjudge imposed an exceptional sentence onthe 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 identitytheft conviction warranted the exceptional sentence for being a major economic offense. Itis inthis contextthat
we analyze the validity ofHayes's exceptional sentence. The Court ofAppeals, in reaching its conclusion, reasonedthat since the legislature did not expressly include language making the major economic offense aggravators applicable to accomplices, the sentencingjudgehad no authority to impose an exceptional sentence on Hayes. Hayes II, 177 Wn. App. at 806. The State argues, however, that our case lawpermits imposing an exceptional sentence
on accomplices even in the absence ofexpress language. While we agree with the State's characterization ofour cases, we nevertheless agree withthe Court of Appeals' resolution ofthis case. When reviewing a sentence aggravator or enhancement, inthe absence of express triggering language, we lookto the defendant's own misconductto satisfy 7State v. Hayes (LarryA.), No. 89742-5
the operative language ofthe statute. Becausethe legislature has removedthe "and punished as such" language from the current complicity statute, and becausethe SRArequires punishmentthat is tailoredto 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 inrelationto the accomplice's own conduct wouldbe tantamountto 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 ofthis "automatic" approach whenit amended the complicity statute. In

### McKim, we were askedwhetherthe former deadly weapon statute, which increasedpunishment for an "accused [who] was armed with a deadly weapon," couldbe appliedto an accomplice who was notpersonally armed but whose codefendantwas. FormerRCW 9.95.015 (1961).4We started our analysis by looking for guidance from whatwe characterized as a "triggering device" present in the operative language ofthe statute. 

### McKim, 98 Wn.2d at 116.

4 "[T]he court shall make a finding offact ofwhether ornotthe accused was armed with a deadly weapon, as defined by RCW 9.95.040, at the time ofthe commission ofthe crime, or if ajurytrial is had, thejury shall, ifit find the defendant guilty, also find a special verdict as to whether or notthe defendant was armed with a deadly weapon, as defined inRCW 9.95.040, at the time ofthe commission ofthe crime." 8State v. Hayes (LarryA.), No. 89742-5
Because the statute lacked such language, we heldthat "any sentence enhancement must depend on the accused's ownmisconduct." McKim, 98 Wn.2d at 117. We went onto conclude thatthe deadly weapon enhancement could apply to
an unarmed accomplice, reasoningthatthe accomplice could be constructively armed with a deadly weapon ifhis codefendant were armed. This in turnrequired a finding thatthe accomplice had knowledge that his codefendantwas armed. However, thejury in that case was instructed that "'ifone ofthe two participants is armed with a ... deadly weapon, then both are consideredto be so armed."' McKim, 98 Wn.2d at 118 (alteration in original) (quoting trial courtrecord). We**vac~ated** the enhancementbecause there was no finding regardingthe defendant's knowledge that the codefendantwas armed. Without such a finding ofknowledge,
we reasoned thatthejury instruction "amounts to a conclusive presumptionthat petitionerknew his codefendant was armed atthe time ofthe offense." McKim, 98 Wn.2d at 119. McKim's focus on the defendant's own conductremains the foundation of the analysis where there is no express language imposing an enhanced sentence on
an accomplice. For example, inState v. Pineda-Pineda, 154 Wn. App. 653, 226 P.3d 164 (2010), the Court ofAppeals was asked whetherthe "drug free zone"

9State 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 ofa school bus stop, could apply where the accomplice was notphysically 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 ofAppeals vacated a "drug free zone" sentence enhancementbecause

.there was no evidence inthe recordthatthe accomplice himselfwas presentin 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 withinthe zone. The State argues that whenthe language ofan aggravating factor is focused
on "the current offense," as the factors at issue here are, then that factor applies to
an accomplice and "shouldnot be assessed on an individualizedbasis, but apply equally to all participants in a crime regardless ofwhetherthey are a minor or major participant." Suppl. Br. ofPet'r at 17. In essence, the State asks us to revert backto the 1909 complicity statute and its coextensive "punished as such" provision, depending on nothing more than subtle nuances in the phrasing of

5RCW 69.50.435. 10State v. Hayes (LarryA.), No. 89742-5
certain factors. But as noted above, our case law is quite clearthatthe legislature, bothby amending the complicity statute in 1975 and enacting the SRA in 1981, has abolished an approachthat imposes automatic and coextensivepunishment on accomplices unless it expressly indicates otherwise inthe text ofthe 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 decisionto impose an exceptional sentence to the sentencingjudge. The State
reasons that because they are not compelledto impose an exceptional sentence, sentencingjudges, in exercising their discretion, will "sort out" the less culpable defendants when choosing the appropriate sentence. But such an overbroad interpretation ofthese sentence aggravators would undermine the aims ofthe SRA, which seeks to funneljudicial 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, thejurymust find thatthe defendant had some knowledge that informs that factor. Because factors phrasedinthis way potentiallypermit imposing an exceptional sentence more broadly than would be consistent with the SRA, this finding ofknowledge ensures thatthe defendant's
own conduct formed the basis ofthe sentence. Inthis case, thejury's special verdict should have asked whetherthe Hayes had knowledge that informs the 11State v. Hayes (LarryA.), No. 89742-5
factors on which they were instructed: for example, whether Hayes knewthatthe offense would have multiple victims or multiple incidents pervictim, or whether Hayes knewthatthe offense involved a high degree ofsophistication or planning
or would occur over a lengthy period oftime. We cannottell from thejury's special verdict ifit found thatHayes had any knowledge that informs the aggravating factors for amajor economic offense, such
as whether he knewthe offense would involve multiple victims orwould involve a high degree ofsophistication. Thejurywas instructed ontwo factors phrased in relation to "the current offense," not in relation to "the defendant." In essence, the aggravating factors and special verdict form askedthejury aboutthe nature ofthe offense, not about Hayes's role in it. Itis this critical questionthatthejury's special verdict does not answer. Without a finding ofknowledge that indicates that thejury found the aggravating factors on the basis ofHayes's own conduct, they cannot apply to Hayes. Because we cannot determine from thejury findings whetherthe exceptional sentence was based improperly on automatic liability for the offense, we vacate his exceptional sentence.

12State v. Hayes (LarryA.), No. 89742-5

CONCLUSION Because we cannottell from thejury's special verdictwhether it found that Hayes had knowledge that informs the aggravating factors on which it was instructed, we affirm the Court ofAppeals' decision vacating his sentence and remand for resentencing.

WE CONCUR:

13State v. Hayes (LarryAlan)

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, thejurymust find thatthe defendanthad 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 ajury determination ofeach coparticipants' role in ajointly 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 thatparticipation 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 (LarryAlan), 89742-5 (Stephens, J. Dissent)

The starting point ofthe majority's analysis is its assertion that Larry Alan Hayes was convicted as an accomplice, although thejury was permitted to convict him as either a principal or an accomplice. The jury's verdict form does not identify on whattheory 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 betweenprincipal and accomplice liability"). Thejuryneed 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 ofAppeals 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 ofthe 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 (LarryAlan), 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 thejury'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 thejury'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 ofthe 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 thejudge can then instruct the jury to find knowledge ofoffense-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. Thejury instructions, to which Hayes does not assign error, toldthejurythat ifit found the defendant guilty ofthe 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). Thejury 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 (LarryAlan), 89742-5 (Stephens, J. Dissent)


### sophistication or planning or occurred over a lengthy period oftime. 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 ofthe crime, confirming the legislature's intent for the enhancement to apply basedon thefacts ofthe 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 ofprecedent. 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 (LarryAlan), 

### 89742-5 (Stephens, J. 

### Dissent)

that he had knowledge ofthe aggravating circumstances ofthe crime. Majority at 9-11. This is inconsistent with our reading ofMcKim 

### in State v. Silva-Baltazar, 

### 125 Wn.2d 472, 886 P.2d 138 (1994). In that case, we clarified thatthe 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 ofany ofthe 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 ofMcKim, 

### we relied on the Davis3 

### 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 SilvaBaltazar, 

### the enhancement factors at issue here are based on the offense itself, so there is no statutory language requiring a finding ofknowledge in order to apply the enhancementto an accomplice. Relying on its erroneous reading ofMcKim, 

### the majority insists that in order for the imposition ofa particular enhancement to be based on the defendant's own conduct, "thejury must find that the defendant had some knowledge that informs that factor." Majority at 11. Otherwise, reasons the majority, such aggravating
3State v. Davis, 

### 101 Wn.2d 654,658-59,682 P.2d 883 (1984). -5-State v. Hayes (LarryAlan), 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 ofwhether 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 ofthe offense rather than the offender's conduct. The goal ofthe SRA is to provide consistency in sentencing by focusing on the offender's criminal history and the seriousness ofthe offense, so thatpunishment 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 thatpunishmentmustnecessarilybe 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 servedby recognizing thatthe seriousness ofthe crime
-6-State v. Hayes (LarryAlan), 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 shouldbe punished regardless of whether he or she knew the crime ofconviction was a major economic offense but
an accomplice-who committedthe same crime-shouldnotbe. 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 nojury 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 (LarryAlan), 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 ofindividualized sentencing. I wouldreverse the Court ofAppeals andreinstate Hayes's exceptional sentence.

-8-State v. Hayes (LarryAlan), 89742-5 (Stephens, J. Dissent)

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