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CHIEP 

IN T 1f SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, ) 

) No. 89742-5 

Petitioner, ) 

) 

v. ) EnBanc 

) 

LARRY ALAN HAYES, ) 

) 

Respondent. ) 

FEB 0 5 2015 ) Filed 

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 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 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) 

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-9-