State v. Flores

¶1 Octavio Gonzales Flores challenges his convictions of six counts of unlawful delivery of a controlled substance, two counts of involving a minor in an unlawful drug transaction, and one count of possession with intent to deliver. He contends that insufficient evidence supports the convictions for involving a minor, that the State’s use of a written statement by his wife violated his constitutional right to confrontation, and that the imposition of an exceptional sentence based on judge-made findings violated his constitutional right to a jury trial. The Court of Appeals affirmed the convictions and sentence after considering supplemental briefing on the applicability of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), which were published while the case was on direct review.

¶2 We hold the offense of involving a minor in a drug transaction, former RCW 69.50.401(f) (1998), recodified as RCW 69.50.4015, does not encompass the act of merely allowing a minor to remain present during the transactions *6that took place at Flores’1 residence. Accordingly, we reverse his convictions on those charges for insufficient evidence. But we affirm the other convictions, agreeing with the Court of Appeals that the confrontation clause violation was harmless. Finally, we hold the imposition of an exceptional sentence violates Flores’ right to a jury trial, following Blakely, because the judge, not the jury, made the factual determination that the offense constitutes a major violation of the Uniform Controlled Substances Act (VUCSA), chapter 69.50 RCW, which was “more onerous than the typical offense.” Former RCW 9.94A.535(2)(e) (2001).

FACTS

¶3 This case arises from a sting operation conducted by the North Central Washington Narcotics Task Force. In July, August, and September 2001, the task force conducted a series of controlled drug buys from Flores and his wife, Sandra, acting through a confidential informant. The confidential informant agreed to participate in lieu of charges.

¶4 The confidential informant did not speak Spanish. Flores did not speak English. Sandra translated during each of the drug transactions.

¶5 The first transaction occurred on July 26, 2001, at the orchard cabin where Flores and Sandra lived, together with Sandra’s daughter, Jessica (born July 7, 1988). 1 Verbatim Report of Proceedings (VRP) (Feb. 7,2002) at 108-09; 3 VRP (Feb. 11, 2002) at 449. The confidential informant encountered Sandra and Jessica sitting on a bench outside the cabin. He told Sandra he wanted “150.” 1 VRP (Feb. 7, 2002) at 107. Sandra waved Flores over. They conversed in Spanish. The confidential informant gave Sandra the money, and Flores *7handed her a plastic baggie of 2.5 grams of cocaine. Sandra gave the plastic baggie to the informant. Neither Sandra nor Flores asked Jessica to leave.

¶6 Based on the evidence obtained at the first transaction, the police secured a court order that authorized the use of a “body wire.” 1 VRP at 118, 126. All of the subsequent controlled buys were recorded via a wire worn by the confidential informant. In addition, aerial surveillance was used during the final controlled buy.

¶7 The second transaction occurred inside the cabin. Jessica was sitting on a couch in the living room. Flores gave the drugs to Sandra either in the bedroom, which was separate from the living room, or in the kitchen, which adjoined the living room.2 According to the confidential informant, Jessica “was in the general area. It was a small cabin.” 3 VRP at 457. He felt she “was aware of what was going on.” Id. at 452. Flores did not ask her to leave.

¶8 The final controlled buy occurred on September 25, 2001. 2 VRP (Feb. 8, 2002) at 318. The confidential informant purchased 25.5 grams of cocaine in exchange for $1,425. The transaction took place in an open field. It was videotaped from a military surveillance plane. Police on the ground saw the confidential informant approach a truck, hand money inside, and receive a package of drugs from Flores.

¶9 After the transaction was complete, the police arrested Flores and then executed a search warrant at the orchard cabin. Sandra responded to police questioning and provided a written statement.

¶10 The police recovered 155 grams of cocaine from the premises; cash, including some of the recorded money used in the controlled buys; cutting agents; and packaging materials. Flores had $1,018 and seven bindles3 of cocaine in his pants pocket when he was arrested. 4 VRP (Feb. 12, 2002) at 670, 720. Sandra had 11 bindles in her pants pocket. 2 VRP at 337.

*8¶11 The State charged Flores with six counts of unlawful delivery of a controlled substance4 (counts I, III, V, VI, VII, VIII), two counts of involving a minor in drug dealing5 (counts II and IV), and one count of unlawful possession with intent to deliver a controlled substance6 (count IX). Clerk’s Papers (CP) at 12-16.

¶12 Anticipating that Flores would invoke his spousal privilege to prevent Sandra from testifying, the State moved for admission of her out-of-court statements under ER 801(d)(2) (hearsay exemption for admission by party-opponent) and ER 804(b)(3) (hearsay exception for statements against penal interest). Over Flores’ objection, the trial court ruled that Sandra’s statements made during the controlled buys were admissible under ER 801(d)(2)(v), as statements by a co-conspirator in furtherance of the conspiracy. The trial court also ruled, again over Flores’ objection, that Sandra’s oral and written statements to the police were admissible under ER 804(b)(3), as statements against penal interest.

¶13 Accordingly, a written statement signed by Sandra was read into the record. In it, she admits participating in the drug transactions and inculpates her husband in the offenses. She also states her daughter was present during some of the drug transactions.

¶14 The State played the audio recordings of the drug buys for the jury. A translator read the English translation of the recordings into the record.

¶15 At the close of the State’s case-in-chief, defense counsel moved for dismissal of the two counts for violation of former RCW 69.50.401(f) (involving a minor in an unlawful drug transaction). The trial court denied the motion.

*9¶16 Speaking through a translator, Flores testified. He conceded guilt as to counts VIII and IX, relating to the September 25, 2001 controlled buy (which was captured on videotape). He admitted he handed cocaine to the confidential informant (count VIII), and he intended to give the seven bindles of cocaine found in his pocket to his wife (count IX). But he denied involvement in the other transactions.

¶17 On cross-examination, Flores admitted he was present when the confidential informant came to his house several times. He also admitted the voices on the audio recordings were his and his wife’s.

¶18 A jury convicted Flores as charged. CP at 108-10.

¶19 The trial court sentenced Flores at the top of the standard range for five of the controlled substance offenses (120 months) and the two offenses for involving a minor (60 months), ordering they run concurrently. CP at 120. The trial court sentenced Flores to 60 months on the remaining two controlled substance offenses (counts VIII and IX) and ordered they run consecutively to the other offenses. Thus, the court sentenced Flores to an exceptional consecutive sentence of 180 months. CP at 127.

¶20 The court concluded the offenses were major VUCSAs, “more onerous than the typical offense.” CP at 126. The court also concluded the multiple offense policy resulted in a sentence that was “clearly too lenient,” based on Flores’ offender score (18), and “some additional punishment should be imposed for allowing the child to be present” at two of the drug transactions. Id.

¶21 While Flores’ case was on direct review, the United States Supreme Court issued its decisions in Crawford and Blakely. The Court of Appeals accepted supplemental briefing on the applicability of those decisions and affirmed the convictions. State v. Gonzales Flores, noted at 134 Wn. App. 1024, 2006 Wash. App. LEXIS 1656. The court held that allowing a minor to be present during a drug transaction constitutes sufficient “involvement” to support a conviction *10for violation of RCW 69.50.4015. The court further held the trial court improperly admitted Sandra’s out-of-court statements to police, but the error was harmless. Finally, the trial court affirmed the exceptional sentence, holding the trial court did not engage in improper judicial fact finding because the aggravating factor of a “major VUCSA” is based on facts found by the jury beyond a reasonable doubt, i.e., more than three convictions.

ANALYSIS

¶22 Flores challenges the sufficiency of the evidence in support of his convictions for involving a minor in a drug transaction. He argues that allowing a minor to remain present during an unlawful drug transaction does not, alone, constitute a violation of former RCW 69.50.401(f). We agree.

¶23 The resolution of this issue depends on this court’s interpretation of former RCW 69.50.401(f). Statutory interpretation is a question of law subject to de novo review. State v. Hacheney, 160 Wn.2d 503, 512, 158 P.3d 1152 (2007).

¶24 Former RCW 69.50.401(f) provides:

It is unlawful to compensate, threaten, solicit, or in any other manner involve a person under the age of eighteen years in a transaction unlawfully to manufacture, sell, or deliver a controlled substance.

¶25 State v. Hollis, 93 Wn. App. 804, 970 P.2d 813 (1999), is the only decision addressing the statute’s scope. Hollis involved the consolidated appeals of Mark Hollis and Lawrence Reddick. Id. at 808. Each man was convicted of involving a minor in a drug transaction, in violation of former RCW 69.50.401(f). An undercover officer approached Hollis on the street and said he wanted to purchase rock cocaine. Hollis said he would get it for him. Hollis then approached a minor and asked her to “deal to” the undercover officer. Hollis, 93 Wn. App. at 809. The minor reluc*11tantly agreed after Hollis found someone to “vouch” for the officer. Id.

¶26 In Reddick’s case, an undercover officer approached two men on a downtown street and said he was looking for “a twenty,” i.e., $20 worth of narcotics. Id. One of the men agreed to arrange the deal. Reddick approached the men arm-in-arm with his girl friend, a minor. After a brief exchange of signals, Reddick handed over a rock of cocaine, received a $20 bill, and then walked away with his girl friend.

¶27 Hollis and Reddick challenged their convictions, arguing the phrase “in any other manner involve” in former RCW 69.50.401(f) is unconstitutionally vague.

¶28 Because Hollis involved a void-for-vagueness challenge, the issue was whether, in light of the particular facts of the case, the statute defines the offense “ ‘with sufficient definiteness that ordinary people can understand what conduct is proscribed’ ” and whether it provided “ ‘ascertainable standards of guilt to protect against arbitrary enforcement.’ ” Hollis, 93 Wn. App. at 810-11 (quoting State v. Myles, 127 Wn.2d 807, 812, 903 P.2d 979 (1995)).

¶29 The Court of Appeals rejected the constitutional challenge after considering the ordinary, dictionary meaning of the term “involve.” The court stated:

A defendant violates RCW 69.50.401(f) if he or she compensates, threatens, solicits or in any other manner involves — i.e., surrounds, encloses, or draws in — a minor in an unlawful drug transaction, or obliges a minor to become associated with the drug transaction, e.g., by inviting or bringing a minor to a drug transaction, or allowing the minor to remain during a drug transaction.

Id. at 812 (emphasis added).

¶30 The court ruled the statute sufficiently notified Reddick that the “acts of approaching the drug transaction arm-in-arm with a minor, . . . and allowing that minor to remain present during the drug transaction, thereby obliging her to become associated with the drug transaction,” would constitute a violation of the statute. Id.

*12¶31 Flores urges us to disapprove of Hollis to the extent it suggests that allowing a minor to remain during a drug transaction, alone, constitutes a violation of former RCW 69.50.401(f). He contends the statute requires proof of the minor’s active involvement in the transaction. He asks this court to apply the principles of accomplice liability and constructive possession in setting forth the standard of proof required.

¶32 As the Court of Appeals correctly observed, the statute does not require the minor’s actual participation in the drug transaction: “the minor’s culpability and actions— which are proscribed under other statutes — are inapposite for the purposes of the involving a minor in a drug transaction statute. Instead, the focus is on the defendant’s affirmative acts.” Hollis, 93 Wn. App. at 812. It is not necessary to establish the minor had any criminal intent. Accordingly, the analogy to accomplice liability and constructive possession is inapt.

¶33 However, we agree with Flores that the statute does not encompass the mere act of selling drugs in the presence of a minor. We recognize that exposing children to unlawful drug transactions is deplorable. However, our task is to decide whether the legislature intended to penalize that conduct when it enacted RCW 69.50.401(f). We conclude that it did not.

¶34 Three principles of statutory construction are germane to our analysis. First, a single word in a statute should not be read in isolation. Rather, the meaning of a word may be indicated or controlled by reference to associated words. State v. Roggenkamp, 153 Wn.2d 614, 623, 106 P.3d 196 (2005) (applying the doctrine of noscitur a sociis); State v. Van Woerden, 93 Wn. App. 110, 117, 967 P.2d 14 (1998). In applying this principle to determine the meaning of a word in a series, a court should “ ‘ “ ‘take into consideration the meaning naturally attaching to them from the context, and . . . adopt the sense of the words which best harmonizes with the context.’ ” ’ ” Roggenkamp, 153 Wn.2d at 623 (alteration in original) (quoting State v. Jackson, 137 *13Wn.2d 712, 729, 976 P.2d 1229 (1999) (quoting McDermott v. Kaczmarek, 2 Wn. App. 643, 648, 469 P.2d 191 (1970) (quoting 50 Am. Jur. Statutes § 247 (1944)))).

¶35 A closely related and equally well-established principle of statutory interpretation is that specific words modify and restrict the meaning of general words when they occur in a sequence. State v. Roadhs, 71 Wn.2d 705, 708, 430 P.2d 586 (1967) (applying the doctrine of ejusdem generis), superseded by statute as stated in State v. Wentz, 149 Wn.2d 342, 349, 68 P.3d 282 (2003); Port of Seattle v. Dep’t of Revenue, 101 Wn. App. 106, 113, 1 P.3d 607 (2000). “The ejusdem generis rule is generally applied to general and specific words clearly associated in the same sentence in a pattern such as ‘[specific], [specific], or [general]’ or ‘[general], including [specific] and [specific].”’ Sw. Wash. Chapter v. Pierce County, 100 Wn.2d 109, 116, 667 P.2d 1092 (1983) (alterations in original).

¶36 When viewing the phrase “or in any other manner involve” in light of the words immediately preceding it (“compensate, threaten, solicit”), it is clear the legislature did not intend to encompass the act of exposing a child to an unlawful drug transaction. Each of these words describes an act directed at the minor whereby the defendant brings, or attempts to bring, the minor into the transaction in some way.

¶37 It is significant that when the legislature wants to protect children from the harmful effects of exposure to criminal activity, it knows how to say so. For example, the legislature created a sentence enhancement for committing an act of domestic violence “within sight or sound” of a minor. RCW 9.94A.535(3)(h)(ii) (emphasis added). Similarly, the legislature enacted enhanced penalties for conducting drug transactions at places where minors are likely to be present, including schools, school buses, within 1,000 feet of a school bus stop, public parks, public housing projects, and public buses. RCW 69.50.435(l)(a)-(g); see State v. Jacobs, 154 Wn.2d 596, 601, 115 P.3d 281 (2005) *14(discussing mandatory penalties under former RCW 9.94A-.533(6) (2003)).

¶38 Another fundamental principle of statutory interpretation is that when the legislature uses different words in statutes relating to a similar subject matter, it intends different meanings. Roggenkamp, 153 Wn.2d at 625. The legislature enacted a mandatory sentence enhancement for unlawfully manufacturing methamphetamine when a minor “was present in or upon the premises of manufacture.” RCW 9.94A.605(2) (emphasis added). The purpose of the statute is to protect children from the risk of injury resulting from chemical toxicity, explosions, and fires, which are commonly associated with methamphetamine labs. Accordingly, it targets the act of exposing children to such risks of harm. In contrast, the plain language of former RCW 69.50.401(f), “compensate, threaten, solicit, or in any other manner involve,” indicates a legislative purpose to protect children from being induced by adults to participate in unlawful drug transactions. Unlike RCW 9.94A.605(2), the statute targets conduct that actively seeks to engage the minor in unlawful activity. Had the legislature intended RCW 69.50.401(f) to encompass the act of merely exposing a minor to unlawful drug activity, it could have chosen language similar to that in RCW 9.94A.605(2), making it unlawful to conduct such activity in the presence of a minor.

¶39 Former RCW 69.50.401(f) is similar to federal laws that penalize adults who involve children in drug transactions. Similar to Washington’s law, 21 U.S.C. § 861(a)(1) and (2) makes it unlawful for any adult to “employ, hire, use, persuade, induce, entice, or coerce” a minor either to participate in a drug offense or “to assist in avoiding detection or apprehension” for a drug offense. And the federal sentencing guidelines provide a sentence enhancement for “using a minor to commit a crime,” which is defined as “directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting.” U.S. Sentencing Guidelines Manual § 3B1.4 (2000); see also Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 6454, 102 Stat. 4181 *15(1988) (directing the sentencing commission to promulgate a sentencing enhancement for “involving” a minor in a drug offense).7

¶40 Construing these similar federal provisions, federal courts hold there is no need to prove the minor participated in any way, only that the defendant committed some affirmative act to involve the minor in the commission of the offense. United States v. Paine, 407 F.3d 958, 965 (8th Cir. 2005) (defendant brought his son along for “moral support”); United States v. Curry, 902 F.2d 912 (11th Cir. 1990) (defendants asked nephew to drive them across the street to consummate a drug deal), cert, denied, 498 U.S. 1091 (1991). “The enhancement. . . focuses on whether the defendant used a minor in the commission of a crime, not whether the minor knew that he was being used to commit a crime.” United States v. Ramsey, 237 F.3d 853, 861 (7th Cir. 2001). The circuits differ as to the scope of conduct encompassed by the sentence enhancement but agree it applies only when the defendant commits an affirmative act to bring or attempt to bring the minor into the criminal enterprise. United States v. Taber, 497 F.3d 1177, 1180-81 (11th Cir. 2007); United States v. Acosta, 474 F.3d 999, 1002 (7th Cir. 2007). Thus, a minor’s mere presence is not sufficient to warrant the sentence enhancement. United States v. Jimenez, 300 F.3d 1166, 1170 (9th Cir. 2002); United States v. Alarcon, 261 F.3d 416, 422 (5th Cir. 2001); United States v. McDonald, 278 U.S. App. D.C. 156, 877 F.2d 91 (1989).

¶41 In McDonald, for instance, the State presented evidence that a minor fled during a police raid at the defendant’s “ ‘stash house,’ ” the minor’s personal posses*16sions were found in the house, and he had $198 cash in his pocket when caught. McDonald, 877 F.2d at 93. The court concluded the evidence was insufficient to support conviction of using a minor in a drug operation. The court reasoned the evidence “at best shows that [the minor] was present and able to observe.” Id.

¶42 Using a child as a decoy may be sufficient evidence of “involving” a minor. For example, in United States v. Castro-Hernandez, 258 F.3d 1057 (9th Cir. 2001), the court affirmed a sentence enhancement where the defendant attempted to cross into the United States from Mexico in a pickup truck with his young son at his side. Border officials found 46 kilograms of marijuana concealed in the truck. The court inferred the defendant used the boy as a decoy to reduce the likelihood of detection and imposed a sentence enhancement. On review, the Ninth Circuit affirmed. The court reasoned that Congress’ directive to provide “ ‘an appropriate sentence enhancement if the defendant involved a minor in the commission of the offense,’ is broad enough to cover intentionally using a minor as an innocent decoy.” Id. at 1060 (quoting the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 140008(a)(2), 108 Stat. 1796, 2033 (1994)). The defendant admitted that he made a special stop at home to pick up his son after loading the drugs onto the truck. Ordinarily, the •defendant’s mother-in-law cared for the boy during the workday. The court concluded this evidence raised a reasonable inference that the defendant intentionally used the boy as a decoy.

¶43 However, the court observed, “the mere presence of a minor in the truck would not have been enough.” Id. In Alarcon, for example, the minor was a passenger in a truck containing a hidden compartment of cocaine. The defendant, who traveled closely behind in a rental car, was convicted of drug offenses and received a sentence enhancement based on the use of a minor as a decoy. The Fifth Circuit reversed, holding the evidence was insufficient to establish the defendant intentionally committed an affir*17mative act to involve the children. The court noted there was no evidence the defendant “made, wanted or suggested” the children ride in the truck. Alarcon, 261 F.3d at 422; see also Jimenez, 300 F.3d 1166 (evidence insufficient to prove use of a minor where defendant’s 11 year old son routinely accompanied her during border crossings to visit family in Mexico).

¶44 Even assuming the phrase “in any other manner involve” is susceptible to more than one reasonable interpretation, the rule of lenity requires this court to adopt the interpretation most favorable to the defendant. Jacobs, 154 Wn.2d at 603. Accordingly, we reject the State’s argument that “in any other manner involve,” as found in former RCW 69.50.401(f), encompasses the act of allowing a minor to remain during a drug transaction, absent evidence of an intent for the minor to play some role in the transaction.

¶45 Unlike in Hollis, Flores’ actions, in relation to the minor, were purely passive. He did not bring her to the site, he did not have any contact with her, physical or verbal, and there is no indication she was not free to leave. His failure to require her to leave was not an affirmative act that is encompassed by the statute.

¶46 Nor is there sufficient evidence to establish that Flores used Jessica as a decoy. Of the five drug transactions that occurred at the cabin, Jessica was present only twice. Two of the transactions occurred off the premises. There is no evidence that Flores intended to use Jessica as a cover to avoid detection of the drug transactions. Rather, it appears her presence was a matter of happenstance, not design. Most of the transactions occurred off the premises, outside the minor’s presence. On the two occasions that drug transactions occurred at the orchard cabin in Jessica’s presence, the confidential informant had arrived at the residence on his own: he was not invited there by Flores.

¶47 Because there is insufficient evidence to infer that Flores knowingly and purposefully brought or attempted to *18bring his stepdaughter into the drug buys, we reverse his convictions for involving a minor in a drug transaction.

f 48 Flores next contends the trial court committed reversible error by admitting out-of-court statements made by his wife in violation of his constitutional right to confrontation. The State concedes error but argues it was harmless.

¶49 The trial court divided Sandra’s out-of-court statements into two categories: (1) statements she made during the drug transactions and (2) statements she made to the police following her arrest. The court admitted the first category of statements under ER 801(d)(2)(v), as statements in furtherance of a conspiracy, and the second category under ER 804(b)(3), as statements against penal interest.8 Flores challenges the admission of only the second category of statements.9

¶50 Sandra’s oral and written statements to the police following her arrest fall squarely within the “core” class of testimonial statements. See Crawford, 541 U.S. at 51. Thus, the Court of Appeals correctly accepted the State’s concession of error. Gonzales Flores, 2006 Wash. App. LEXIS 1656.

¶51 A confrontation clause violation is subject to harmless error analysis. State v. Watt, 160 Wn.2d 626, 635, 160 P.3d 640 (2007). In evaluating whether the error is harmless, this court applies the “ ‘overwhelming untainted evidence’ ” test. State v. Davis, 154 Wn.2d 291, 305, 111 P.3d 844 (2005) (internal quotation marks omitted) (quoting State v. Smith, 148 Wn.2d 122, 139, 59 P.3d 74 (2002)), aff’d on other grounds, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. *192d 224 (2006). Under that test, when the properly admitted evidence is so overwhelming as to necessarily lead to a finding of guilt, the error is harmless. Id.

¶52 Evidence that is merely cumulative of overwhelming untainted evidence is harmless. State v. Nist, 77 Wn.2d 227, 236, 461 P.2d 322 (1969); see also Dennis J. Sweeney, An Analysis of Harmless Error in Washington: A Principled Process, 31 Gonz. L. Rev. 277, 319 (1995) (“Regardless of the announced standard of review for harmless error, Washington has a long history of ruling error harmless if the evidence admitted or excluded was merely cumulative.”).

¶53 Flores contends the Crawford error is not harmless because Sandra’s statements “were the only corroborating evidence of the [confidential informant’s] testimony that Octavio was involved in the activities charged in Counts I through VII of the Information.” RAP 13.4(a) Pet. for Discretionary Review at 13. On the contrary, as detailed in the recitation of facts, the State presented overwhelming evidence corroborating the confidential informant’s testimony, including audio recordings, video recordings, drugs, money, and the defendant’s own admissions. The tainted evidence is merely cumulative of this overwhelming untainted evidence. Thus, we hold the improper admission of Sandra’s out-of-court statements was harmless beyond a reasonable doubt.

¶54 Finally, Flores challenges his exceptional sentence. The imposition of a consecutive sentence under former RCW 9.94A.589(l)(a) (2000) violates the right to a jury even when the sentence for each offense is within the standard range, if the judge, not the jury, makes the predicate findings in support of the consecutive sentence. In re Pers. Restraint of VanDelft, 158 Wn.2d 731, 147 P.3d 573 (2006).

¶55 Here, the trial court sentenced Flores within the standard range for each offense but ordered him to serve the last two counts consecutively to the first seven counts, under former RCW 9.94A.589(l)(a). The court found that two aggravating factors supported a consecutive sentence: *20former RCW 9.94A.535(2)(e)(i)-(vi) (2001) (“major VUCSA”) and former RCW 9.94A.535(2)(i) (2001) (“clearly too lenient”).10 CP at 126.

¶56 The existence of an aggravating factor is a factual question, not a question of law. State v. Suleiman, 158 Wn.2d 280, 292-93, 143 P.3d 795 (2006). Thus, unless an aggravating factor is established solely by the jury verdict or the defendant’s stipulation, it cannot be used to support an exceptional sentence.

¶57 It is well established that the “clearly too lenient” factor cannot support an exceptional sentence when found by the judge. VanDelft, 158 Wn.2d at 734; Suleiman, 158 Wn.2d at 287; State v. Hughes, 154 Wn.2d 118, 140, 110 P.3d 192 (2005), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). The State concedes the invalidity of the “clearly too lenient” factor in this case, because the judge, not the jury, made this factual determination.

¶58 However, we have not yet addressed whether an exceptional sentence based on the aggravating factor of a “major VUCSA” can withstand constitutional scrutiny, following Blakely.

¶59 An exceptional sentence may withstand such a challenge when based on facts necessarily found by the jury. For example, an exceptional sentence based on a finding of “sexual motivation” may be affirmed because the statute expressly requires the finding to be made by a jury beyond a reasonable doubt. See Hughes, 154 Wn.2d at 134 (“RCW 9.94A.535(2)(f), listing sexual motivation as an aggravating factor, also is still valid because RCW 9.94A.835 requires a jury to find beyond a reasonable doubt that sexual motivation was present.”).

¶60 On the other hand, when the trial court is left to draw any inferences from the facts in determining the *21existence of an aggravating factor, the aggravating factor is not a valid ground for an exceptional sentence. Thus, in State v. Hagar, 158 Wn.2d 369, 372, 144 P.3d 298 (2006), this court held that an exceptional sentence based on a “ ‘major economic offense’ ” violates the right to a jury even when a defendant stipulates to facts that establish one of the statutorily enumerated factual predicates for this aggravating factor, i.e., that the offense involved multiple incidents or multiple victims.

¶61 At the time Flores was sentenced, a trial court could impose an exceptional sentence if

[t]he current offense was a major violation of the Uniform Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled substances, which was more onerous than the typical offense of its statutory definition: The presence of ANY of the following may identify a current offense as a major VUCSA:

(i) The current offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so.

Former RCW 9.94A.535(2)(e) (emphasis added).

¶62 The State argues the jury’s verdict sufficiently supports a finding of a “major VUCSA,” under former RCW 9.94A.535(2)(e)(i), because the jury convicted Flores of more than three unlawful drug transactions.

¶63 We recently rejected a similar argument addressing the aggravating factor of a “ ‘major economic offense.’ ” Hagar, 158 Wn.2d at 374. Under former RCW 9.94A.535(2)(d) (2001), a court could impose an exceptional sentence if

[t]he current offense was a major economic offense or series of offenses, so identified by a consideration of any of the following factors:

(i) The current offense involved multiple victims or multiple incidents per victim.

¶64 In Hagar, the defendant pleaded guilty to three counts of first degree theft. As part of his plea agreement, *22he stipulated to facts sufficient to prove he committed 4 counts of second degree theft and 20 counts of first degree theft in an embezzlement scheme. Hagar, 158 Wn.2d at 371. Based on his stipulations, the trial court imposed an exceptional sentence, finding the crimes constituted a “ ‘major economic offense’ ” in that they involved multiple incidents per victim.11 Id. at 372.

¶65 We concluded the trial court

engaged in improper Blakely fact finding when it found the crimes constituted a “major economic offense.”

Hagar stipulated certain facts but did not stipulate that the crimes constitute a “major economic offense.” The trial court imposed an exceptional sentence of 30 months,. . . based on its finding that Hagar had committed a major economic offense. Hagar’s sentence is in violation of Blakely because the exceptional sentence was predicated on an unstipulated fact that was not found by a jury beyond a reasonable doubt.

Id. at 374.

¶66 This case is indistinguishable from Hagar. The jury convicted Flores of seven drug transactions. Like the “major economic offense” aggravator, the “major VUCSA” aggravator allows, but does not compel, an exceptional sentence when the defendant commits multiple violations (“[t]he presence of ANY of the following may identify a current offense as a major VUCSA”). Former RCW 9.94A.535(2)(e) (emphasis added). Thus, the trial court had to make factual determinations in order to justify the exceptional sentence. In particular, the trial court had to infer the offenses were “more onerous than the typical offense.” Id. In drawing that inference — an inference the State correctly observes is sufficiently supported (but not compelled) by the jury verdict — the trial court made a factual determination that must be made by a jury. Cf. State v. Cubias, 155 Wn.2d 549, 120 P.3d 929 (2005) (finding no Blakely violation where the jury verdict necessarily implies the defen*23dant committed multiple serious violent offenses, triggering the imposition of a mandatory consecutive sentence). The “statutory maximum” is the maximum that a judge may impose “ ‘without any additional findings.’ ” Suleiman, 158 Wn.2d at 289 (quoting Blakely, 542 U.S. at 303-04). Because the jury verdict does not necessarily imply Flores’ multiple offenses were a “major VUCSA,” the exceptional sentence is based on a finding made by the judge, not the jury.

¶67 Even assuming the court relied solely on the jury’s factual finding that Flores committed more than three controlled substance offenses to infer the crime was a “major VUCSA,” the exceptional sentence would be invalid.12 Trial courts lack the authority to deviate from legislatively prescribed exceptional sentencing procedures. State v. Pillatos, 159 Wn.2d 459, 150 P.3d 1130 (2007). At the time Flores was tried, the Sentencing Reform Act of 1981 (SRA), chapter 9.94ARCW, required the judge, not the jury, to find the existence of this statutory aggravating factor, according to the preponderance of the evidence standard of proof. In re Pers. Restraint of Hall, 163 Wn.2d *24346, 352-54, 181 P.3d 799 (2008); see also Hughes, 154 Wn.2d at 149 (the former SRA “explicitly directs the trial court to make the necessary factual findings and does not include any provision allowing a jury to make those determinations during trial, during a separate sentencing phase, or on remand” (emphasis added)). The trial court could neither delegate its fact-finding duty to the jury nor impose a more demanding standard of proof. Hall, 163 Wn.2d at 355. Even if the record showed that Flores’ jury expressly found, beyond a reasonable doubt, that he committed a “major VUCSA,” that finding could not support the imposition of an exceptional sentence under then-existing law. See id. (concluding “it was procedurally impossible” for a jury to make the requisite factual findings in support of an exceptional sentence); State v. Womac, 160 Wn.2d 643, 663, 160 P.3d 40 (2007) (same).

CONCLUSION

¶68 We hold that allowing a minor to remain present during a drug transaction is not among the acts encompassed by former RCW 69.50.401(f) (involving a minor in a drug transaction). The statute requires evidence that the defendant committed some act, directed at the minor, to bring or attempt to bring the minor into the transaction. We reverse Flores’ convictions on counts II and IV for insufficient evidence.

¶69 We further hold the confrontation clause violation was harmless and affirm the convictions on counts I, III, V, VI, VII, VIII, and IX.

¶70 Finally, we hold the court erred in imposing an exceptional sentence because the trial court, not the jury, made the factual determination that the offenses are “a *25major VUCSA.” We reverse and remand for further proceedings consistent with this opinion.