Appeal from Pierce County Superior Court. Docket No: 07-1-05967-1. Date filed: 03/16/2012. Judge signing: Honorable Eric B. Schmidt.
Nancy P. Collins (of Washington Appellate Project ), for appellant.
Mark E. Lindquist, Prosecuting Attorney, and Kathleen Proctor, Deputy, for respondent.
AUTHOR: Jill M Johanson, A.C.J. We concur: Joel Penoyar, J., Thomas R. Bjorgen, J.
[177 Wn.App. 803] ¶ 1 We are asked to decide whether a major economic offense sentence enhancement may be imposed when the trial court instructed the jury that the underlying conviction could be based on accomplice liability. Because the major economic offense sentence enhancement does not indicate legislative intent to extend the enhancement to accomplices, we vacate the sentence enhancement and remand for resentencing. We also direct the court on remand to correct the judgment and sentence consistent with this opinion.
¶ 2 In May 2009, Larry Alan Hayes went to trial after police found evidence that he, or an accomplice, manufactured several false identifications and credit cards and [177 Wn.App. 804] failed to return vehicles rented under a false name. State v. Hayes, 164 Wn.App. 459, 464-66, 262 P.3d 538 (2011). The State alleged that Hayes, or an accomplice, committed several offenses, including but not limited to leading organized crime and six identity theft counts. Hayes, 164 Wn.App. at 463-64. Regarding the first degree identity theft charge at issue here, the court instructed the jury:
(1) That on or about [the] period [between August 26 and September 11, 2007], the defendant, or an accomplice, knowingly obtained, possessed, or transferred a means of identification or financial information of Scott Mutter;
(2) That the defendant acted with the intent to commit or aid or abet any crime;
(3) That the defendant, or an accomplice, obtained credit, money, goods, or services that have in excess of $1500 value from the acts described in element (1) and;
(4) That any of these acts occurred in the State of Washington.
Resp't's Suppl. Clerk's Papers (CP) at 146 (Jury Instruction 15) (emphasis added).
¶ 3 The court also defined " accomplice liability" : " A person is guilty of a crime if it is committed by the conduct of another person for which he or she is legally accountable. A person is legally accountable for the conduct of another person when he or she is an accomplice of such other person in the commission of the crime." Resp't's Suppl. CP at 142 (Jury Instruction 11).
¶ 4 The State alleged that each count, except for one drug charge, was aggravated by being a major economic offense. Hayes, 164 Wn.App. at 463. The trial court instructed the jury that to find that Hayes's crimes were major economic offenses, 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 ...