State v. Hayes, 164 Wash. App. 459

Background

Hayes was charged with leading organized crime and multiple property and identity-theft offenses; the cases were consolidated for trial.
The State’s key witness, Epstein, testified Hayes fabricated false identifications and directed shoppers to obtain merchandise using stolen identities; Epstein testified Hayes organized various schemes including a Harley-Davidson trip and theft of credit card receipts.
The defense argued Epstein, not Hayes, was the principal leader; Hayes also presented witnesses suggesting Epstein acted independently.
The jury convicted Hayes on all counts except possession of methamphetamine, and the court imposed an exceptional sentence for leading organized crime as a major economic offense.
The trial court and appellate court considered whether accomplice liability could apply to leading organized crime and whether the to-convict instructions properly required Hayes to be a leader, not merely an aider.
The court reversed Hayes’ conviction for leading organized crime and two counts of possession of a stolen vehicle; other convictions were affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether accomplice liability could apply to leading organized crime	Hayes argues only a true leader can be guilty of leading organized crime.	State contends accomplice liability can apply if there are multiple leaders sharing intent.	Accomplice liability cannot make Hayes a leader; leading organized crime requires personal leadership.
Whether the cautionary instruction on accomplice testimony was required/erroneous to withhold	Failure to give a cautionary instruction on uncorroborated accomplice testimony could be reversible.	The absence of the instruction did not prejudice Hayes.	The failure to request the cautionary instruction is not reversible error sufficient to uphold the conviction.
Whether concealment/disposal were proper alternative means for possession of a stolen vehicle	The to-convict instructions listed five alternative means including concealment and disposal; substantial evidence supported these.	There was insufficient evidence Hayes concealed or disposed of the vehicles.	Concealment and disposal are treated as alternative means here; convictions for concealing/disposal were not supported; those counts reversed.
Whether the sufficiency of evidence supports counts of identity theft and possession of stolen property	Call’s identity was the victim; receipts linking Call to credit card information prove counts 9 and 10.	Without Call testifying, victims’ identities could be uncertain; evidence insufficient.	Sufficient evidence supported counts 9 and 10; Call could be inferred as a real victim.
Whether the exceptional sentence based on major economic offense was properly premised after reversal	The exceptional sentence could stand if Hayes committed a major economic offense.	After reversing the lead organized crime conviction, the basis for the exceptional sentence is moot.	The issue is moot; because leading organized crime was reversed, the exceptional sentence is not reviewable.

Key Cases Cited

State v. Montejano, 196 P.3d 1083 (Wash. Ct. App. 2008) (accomplice liability restrictions when statute targets leader)
State v. Johnson, 873 P.2d 514 (Wash. 1994) (real facts doctrine; leading organized crime characterized by leader)
State v. Lillard, 93 P.3d 969 (Wash. App. 2005) (definitional terms in to-convict instructions not always alternative means)
Strohm, 879 P.2d 962 (Wash. Ct. App. 1994) (definitional statutes do not create extra alternative means)
State v. Harris, 685 P.2d 584 (Wash. 1984) (ineffective assistance; cautionary instruction if requested)
In re Pers. Restraint of Orange, 100 P.3d 291 (Wash. 2004) (double jeopardy and multiple offenses; Blockburger analysis considerations)