Argued, September 9, 2014
Appeal from Peirce County Superior Court. 07-1-05967-1. Honorable Eric B. Schmidt.
Mark E. Lindquist, Prosecuting Attorney, and Kathleen Proctor, Deputy, for petitioner.
Nancy P. Collins (of Washington Appellate Project), for respondent.
AUTHOR: Justice Charles W. Johnson. WE CONCUR: Justice Susan Owens, Justice Mary E. Fairhurst, Justice Charles K. Wiggins, Justice Sheryl Gordon McCloud. AUTHOR: Justice Debra L. Stephens. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Steven C. González, Justice Mary I. Yu.
Charles W. Johnson, J.
[182 Wn.2d 558] [¶1] 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 [182 Wn.2d 559] 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
[¶2] 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.  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.
[¶3] 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 [182 Wn.2d 560] these two factors were alternatives: the jury should answer yes on 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.
[¶4] 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,  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. 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
[¶5] This case rests on the interpretation of RCW 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, [182 Wn.2d 561] 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, ...