The opinion
LED
OUR i OF A°
LS
PEA.
Divisla.II
2013 SE!20 AM 9:5o
IN THE COURT OF APPEALS OF THE STATE OF W. HNri SIHI T 0 NN
DIVISION II
STATE OF WASHINGTON, No. 41689 71 - I
I
Consolidated)
Respondent.
V.
PUBLISHED OPINION
EDDIE DAVIS,
Appellant.
STATE OF WASHINGTON, No. 41714 6 II
- -
Respondent,
V.
DOUGLAS DAVIS,
Appellant.
STATE OF WASHINGTON, No. 4173 9 1 II
- -
Respondent,
V.
LETRICIA NELSON,
BJORGEN, J. —Eddie Davis appeals from his jury convictions for first degree rendering
criminal assistance, second degree unlawful possession of a firearm, and possession of a stolen
firearm; Douglas Davis appeals from his jury convictions for first degree unlawful possession of
a firearm and possession of a stolen firearm; and Letricia Nelson appeals from her jury
convictions for first degree rendering criminal assistance and possession of a stolen firearm.
They argue that ( )
1 sufficient evidence does not support the unlawful possession and possession
of a ( their
stolen firearm convictions; 2) exceptional sentences lack both a legal and factual basis;
No. 41689 1 II Cons. w/No. 41714 6 II
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And No. 41739 1 II)
- -
and ( ) trial court erred when it failed to note in a written order or on their judgments that
3 the
certain counts against them had been dismissed. In his RAP 10. 0 statement of additional
1
grounds, Douglas' also contends that the trial court's unanimity instruction regarding the special
verdict forms erroneously informed the jury of the law.
In summary, we hold that ( )
1 sufficient evidence supported Eddie's convictions for
unlawful possession of a firearm and possession of a stolen firearm, as well as Nelson's
conviction for possession of a stolen firearm; 2)
( sufficient evidence did not support Douglas's
unlawful possession of a firearm and possession of a stolen firearm convictions; 3)
( the
exceptional sentences imposed under RCW 9.
r)
535( 4A.for Eddie's and Nelson's rendering
3)(
9
of criminal assistance convictions were legally and factually justified; 4)
( sufficient evidence did
not support the jury's application of the aggravating circumstance of RCW 9.
r)
535( 4A.to
3)(
9
Eddie's unlawful possession of a firearm and possession of a stolen firearm convictions or to
Nelson's possession of a stolen firearm conviction; 5) law enforcement victim aggravating
( the
factor under RCW 9.
v)
535( 4A.is legally inapplicable to Eddie's and Nelson's convictions
3)(
9
for rendering criminal assistance and unlawful possession of a firearm; 6)
( sufficient evidence
did not support the jury's finding that the law enforcement victim aggravating factor applied to
Eddie's and Nelson's convictions for possession of a stolen firearm; 7) appellants did not
( the
demonstrate any error in their judgments regarding dismissed or consolidated counts; and ( )
8 the
trial court's unanimity instruction was not erroneous.
We affirm Eddie's and Nelson's convictions. We reverse Douglas's unlawful possession
of a firearm and possession of a stolen firearm convictions and remand for dismissal of those
For clarity, we refer to Douglas Davis and Eddie Davis by their first names. We intend no
disrespect.
2
No. 41689- 41 Cons. w/No. 41714 6 II
1 ( - -
And No. 41739 1 II)
- -
convictions with prejudice. We also remand for resentencing of Eddie and Nelson consistently
with this opinion.
FACTS
On the morning of Sunday, November 29, 2009,just before 8:0 AM, City of Lakewood
0
Police Officers Tina Griswold, Ronald Owens, and Greg Richards, as well as Sergeant Mark
Renninger, were in a Parkland coffee shop. Maurice Clemmons entered the coffee shop with .
two hand guns and, without warning, fatally shot Officer Griswold and Sergeant Renninger.
After one of his guns jammed, Clemmons switched guns and shot Officer Owens, killing him.
Officer Richards began to struggle with Clemmons and shot him once in the right side of his
back. Clemmons then gained control of Officer Richards's duty firearm, fatally shot him with it,
and left the scene.
Witnesses observed Clemmons get into the passenger side of a truck near the shootings,
which then drove away. Shortly thereafter, investigators located the truck and linked Clemmons
to the murders. As a result, they began to interview his friends and family in order to locate him.
Over the course of multiple interviews, the details:below emerged regarding Clemmons's
activities after the murders.
Defendant Douglas was Clemmons's friend and employee. He lived with defendant
Eddie, Clemmons's cousin and employee. In an interview with the Pierce County Sheriff's
Department, Douglas said that on the morning of November 29 he was sleeping when he heard
Clemmons beating on the door. Clemmons was armed with a silver 9mm semiautomatic
handgun. He told Douglas to "[ ome on"and they drove to a house in Auburn, a trip taking
c]
about 30 minutes. 10 Report of Proceedings (RP)at 1084, 1087. The evidence indicates that at
c3
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And No. 41739-
11) 1-
some point during their stay at the Auburn house, Douglas knew that Clemmons had killed the
police officers. While at the Auburn house, Douglas treated Clemmons's wound with peroxide.
Douglas saw Clemmons with the gun at the Auburn house and was " retty sure"Clemmons took
p
the gun with him when he left. 10 RP at 1086. Clemmons also "took a bag with his clothes in
it"
and " ad different clothes on"when he left the Auburn house. 10 RP at 1110. Clemmons
h
told Douglas to follow him, so Douglas followed him to a Discount Tire location and an
apartment, where Clemmons left with a young woman.
Defendant Eddie was also interviewed by the Pierce County Sheriff's Department. In
that interview, Eddie recounted that on the morning of November 29, Clemmons came to his
residence and told Eddie to take him to Auburn. Eddie drove his car, a white Bonneville, to a
house in Auburn with Clemmons in the back seat. En route to the house, Clemmons said that he
had been shot while killing four police officers. Eddie saw the wound at the Auburn house and
described it as not being serious. While at the house, Clemmons discarded a black jacket, had
his wound treated with peroxide and bandaged, and received a change of clothes. Eddie then
took Clemmons in the white Bonneville to a Discount Tire location at the Auburn SuperMall
and left.
Cicely Clemmons is the cousin of Clemmons and Eddie and is the daughter of defendant
Nelson. Nelson is defendant Clemmons's aunt. Cicely was interviewed by a City of Tacoma
detective multiple times, including at Nelson's residence. According to the detective, Nelson's
2
The Auburn SuperMall was recently renamed The Outlet Collection Seattle.
3 For clarity we refer to Cicely Clemmons by her first name. We intend no disrespect.
4
No. 41689 1 II Cons. w/No.41714 6 II
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And No. 41739 1 II)
- -
residence was " airly small"with a " airly open floor plan"between the kitchen and living room.
f f
Cicely also testified at trial. 6 RP at 493.
Cicely stated that on the morning of November 29 she was in her bedroom at Nelson's
residence when she heard someone "knock"on the front door. 6 RP at 283, 304, 306 07. After
-
Nelson let Clemmons in the house, Clemmons said that he had just killed four police officers and
had been shot, and asked Nelson to get him a shirt and a "plastic bag or something."6 RP at
307. While still in her bedroom, Cicely heard Clemmons tell Eddie to call someone and tell
someone to " ie it tight." RP at 308.
t 6
Cicely went into the living room, where she saw Eddie and Douglas. Cicely asked
Clemmons what had happened, and he told her he had killed four police officers and that he had
taken the gun of one of the officers and killed him with it. Clemmons then gestured for her to
give her car keys to Eddie, which she did. Cicely stated that, at Clemmons's direction, Eddie
called " uiana"whom he told to meet Clemmons at the SuperMall.
Q
Cicely testified also that when she went into the living room, she saw a Tommy Hilfiger
brand bag with some clothes in it on a counter. When Clemmons was ready to leave, he asked,
Where's the gun ?" 6 RP at 316. Eddie replied that the gun was on the counter in the bag and
got the gun for Clemmons. Eddie, Douglas, and Clemmons then left in two cars, Eddie's white
Bonneville and Cicely's car, although Cicely did not know whether Clemmons left in the same
car as Eddie or Douglas. Eddie and Douglas came back without Clemmons about five minutes
later.
In an interview with the Tacoma detective, defendant Nelson stated that on the morning
of November 29, Clemmons knocked on her door and told her he had been shot. Inside her
E
No. 41689 1 II Cons. w/No. 41714 6 II
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And No. 41739-
11) 1-
home,Nelson gave Clemmons some clothing and peroxide at his request, but did' ot treat his
n
wound. Nelson also admitted that she retrieved the Tommy Hilfiger bag for Clemmons and put
the gun inside it. Finally, she stated that Clemmons had arrived at her house in a white car, but
left in Cicely's car to "
meet somebody at the mall or something." 10 RP at 1177.
On the morning of December 1, 2009, Clemmons encountered a Seattle police officer and
attempted to pull a gun from his sweatshirt. The officer opened fire.,
killing Clemmons. The gun
Clemmons attempted to draw was Officer Richards's duty firearm.
The defendants were charged with various crimes, some of which were dismissed or
consolidated. By the time instructions were submitted to the jury, each defendant had remaining
one count of first degree rendering criminal assistance, one count of unlawful possession of a
firearm ( xcept for Nelson), one count of possession of a stolen firearm.
e and
The jury found Eddie guilty of one count of first degree rendering criminal assistance,
one count of second degree unlawful possession of a firearm, and one count of possession of a
stolen firearm. The jury acquitted Douglas of first degree rendering criminal assistance, but
found him guilty of one count of first degree unlawful possession of a firearm and one count of
possession of a stolen firearm. Finally, the jury convicted Nelson of one count each of first
degree rendering criminal assistance and possession of a stolen firearm.
Eddie, Douglas, and Nelson appeal.
01
No. 41689 1 II Cons. w/No. 41714 6 II
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And No. 41739 1 II)
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ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE SUPPORTING FIREARM POSSESSION
Eddie, Douglas, and Nelson argue that sufficient evidence does not support their
convictions for possession of a stolen firearm, and Eddie and Douglas argue that sufficient
evidence does not support their convictions for unlawful possession of a firearm. Each argument
is based on the claim that the individual in fact never possessed Richards's stolen duty firearm.
We hold that sufficient evidence supports Nelson's stolen firearm possession conviction and
Eddie's convictions for unlawful possession of a firearm and stolen firearm possession, but that
sufficient evidence does not support Douglas's convictions for unlawful possession of a firearm
and stolen firearm possession..
A claim of insufficiency admits the truth of the State's evidence and all inferences that
reasonably can be drawn from it. State v. Salinas, 119 Wn. d 192, 201, 829 P. d 1068 (1992).
2 2
Sufficient evidence supports a conviction if,when viewed in the light most favorable to the
State, any rational trier of fact could have found the essential elements of the charged crime
proved beyond a reasonable doubt. State v. Hosier, 157 Wn. d 1, 8, 133 P. d 936 (2006).On
2 3
appeal, we draw all reasonable inferences from the evidence in favor of the State and interpret
them most strongly against the defendant. Hosier, 157 Wn. d at 8. In the sufficiency context,
2
we consider circumstantial evidence as probative as direct evidence. State v. Goodman, 150
Wn. d 774, 781, 83 P. d 410 (2004).We may infer specific criminal intent of the accused from
2 3
conduct that plainly indicates such intent as a matter of logical probability. Goodman, 150
Wn. d at 781. We defer to the fact finder on issues of conflicting testimony,witness credibility,
2
and persuasiveness of the evidence. State v. Thomas, 150 Wn. d 821, 874 75,83 P. d 970
2 - 3
7
No. 41689 1 II Cons. w/No. 41714 6 II
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And No. 41739 1 II)
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2004),
abrogated in part on other grounds by Crawford v. Washington, 541, . 124 S. Ct.
S. U 36,
1354, 158 L.Ed. 2d 177 (2004).
A person commits first degree unlawful possession of a firearm when "he person owns,
t
has in his or her possession, or has in his or her control any firearm after having previously been
convicted ... of any serious offense as defined in this chapter."RCW 9.1. person
a).
040(
1 A
4 )(
commits second degree unlawful possession of a firearm when the person " wns,has in his or
o
her possession, or has in his or her control any firearm,"
under specified circumstances not
including conviction of a serious offense. RCW 9.1.
a).
040(
2
4 )(
A person commits possession of a stolen firearm when " e or she possesses, carries,
h
delivers, sells, or is in control of a stolen firearm."RCW 9A. 6.The statute defines
310(
1
5 ).
possessing stolen property"as
knowingly to receive, retain, possess, conceal, or dispose of stolen property
knowing that it has been stolen and to withhold or appropriate the same to the use
of any person other than the true owner or person entitled thereto.
RCW 9A. 6.This definition applies to the crime of possession of a stolen firearm. RCW
140(
1
5 ).
310(
9A. 6.
4).
5 -
Possession may be actual or constructive. State v. Callahan, 77 Wn. d 27, 29, 459 P. d
2 2
400 (1969).A defendant has actual possession when he or she has physical custody of the item
"
and constructive possession if he or she has dominion and control over the item."
State v. Jones,
146 Wn. d 328, 333, 45 P. d.2002).Dominion and control over an object " eans that the
2 1062 (
3 m
object may be reduced to actual possession immediately,"
Jones, 146 Wn. d at 333, but
2
4
The 2009 version of former RCW 9.1.2009)applied on November 29 and 30, 2009, the
040 (4
dates the appellants committed their crimes. However, we cite the current version because it is
gender neutral and substantively the same.
8
No. 41689 1 II Cons. w/No. 41714 6 II
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And No. 41739-
11) 1-
dominion and control need not be exclusive. State v. Cote, 123 Wn. App. 546, 549, 96 P. d 410
3
2004).Mere proximity, however, is not enough to establish possession. Jones, 146 Wn. d at
2
333.
To determine whether a defendant had constructive possession of a firearm, we examine
the totality of the circumstances touching on dominion and control. State v. Jeffrey, 77 Wn. App.
222, 227, 889 P. d 956 (1995); also State v. Mathews, 4 Wn. App. 653, 656, 484 P. d 942
2 see 2
1971).Dominion and control over premises raises a rebuttable presumption of dominion and
control over objects in the premises. State v. Cantabrana, 83 Wn. App. 204, 208, 921 P. d 572
2
1996);
State v. Tadeo -Mares, 86 Wn. App. 813, 816, 939 P. d 220 (1997).A vehicle is
2
considered a type of premises for purposes of determining constructive possession. State v.
Turner, 103 Wn. App. 515, 521, 13 P. d 234 ( 000).
3 2
In addition to the ability to take immediate possession, we may consider other factors
indicating dominion and control, such as the ownership of the item or the defendant's ability to
exclude others from possessing it. See State v. Partin, 88 Wn. d 899, 906, 567 P. d 1136
2 2
1977);
Callahan, 77 Wn. d at 31;State v. Wilson,20 Wn. App. 592, 596, 581 P. d 592 ( 978).
2 2 1
The cumulative effect of a number of these factors strongly indicates dominion and control, and,
5
thus, constructive possession. Partin, 88 Wn. d at 906.
2
5
Jury instruction 20,which was identical to 11A Washington Practice: Washington Pattern Jury
Instructions: Criminal § 133. 2,at 617 (3d ed. 2008)WPIC)stated that " hether the defendant
5 ( w
had the immediate ability to take actual possession of the item"is a nonexclusive factor of
dominion and control, rather than the definition of the term. Clerk's Papers (CP)at 717. This is
consistent with the cases here cited and with the analysis we employ in resolving this appeal.
9
No. 41689 1 II Cons. w/No. 41714 6 II
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And No. 41739 1 II)
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1. Nelson's Possession of a Stolen Firearm
Nelson does not dispute that she knew the firearm was stolen while it was present in her
residence. Citing Callahan, however, she argues that sufficient evidence does not support
finding that she actually or constructively possessed Richards's firearm, because she only had
fleeting possession"of it. Br. of Appellant ( elson)at 7 11.
N -
The Callahan court held that the evidence before it was insufficient to establish actual
possession of drugs, stating
t] was no evidence introduced that the defendant was in physical possession
here
of the drugs other than his close proximity to them at the time of his arrest and the
fact that the defendant told one of the officers that he had handled the drugs
earlier. Since the drugs were not found on the defendant, the only basis on which
the jury could find that the defendant had actual possession would be the fact that
he had handled the drugs earlier and such actions are not sufficient for a charge of
possession since possession entails actual control, not a passing control which is
only a momentary handling.
Callahan, 77 Wn. d at 29 (emphasis added).The court also held that the evidence was
2
insufficient to support constructive possession, because it did not establish the defendant's
dominion and control over the houseboat or, ultimately, the drugs. Callahan, 77 Wn. d at 31 32.
2 -
Subsequently, our Supreme Court clarified the Callahan court's reference to " assing
p
control"of an object:
Callahan did not create a legal excuse for possession based on the duration of the
possession. Rather, evidence of brief duration or "momentary handling" goes to
the question of whether the defendant had "possession" in the first instance.
Depending on the total situation, a " momentary handling, " along with other
sufficient indicia of control over the drugs, may actually support a finding of
possession.
State v. Staley, 123 Wn. d 794, 802, 872 P. d 502 (1994)emphasis added).
2 2 (
10
No. 41689 1 II Cons. w/No.41714 6 II
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And No. 41739 1 II)
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In contrast to Callahan, Nelson had dominion and control over her own residence. This
allowed the jury to infer that she had dominion and control over the stolen firearm while it was in
her residence. Cantabrana, 83 Wn. App. at 208. Further, Nelson actually possessed the firearm
by picking it up, putting it in the Tommy Hilfiger bag, and putting the bag on a counter. Thus,
she had physical custody of the firearm, which is the definition of actual possession found in
Jones, 146 Wn. d at 333. In addition, she stowed and made the firearm available for
2
Clemmons's use, actions with profound criminal purpose and which by their nature only took a
very short time. Although her possession was of short duration, this evidence is sufficient to
establish actual possession of the firearm, reading Callahan and Staley together.
In addition, we note that this evidence is also sufficient to establish constructive
possession of the firearm, even if her handling of it were deemed too momentary to constitute
actual possession. In State v. Summers, 107 Wn. App. 373, 386 87,28 P. d 780, 43 P. d 526
- 3 3
2001), held that " vidence of momentary handling, when combined with other evidence,
we e
such as dominion and control of the premises, or a motive to hide the item from police, is
sufficient to prove possession."See also Staley, 123 Wn. d at 802. As noted, Nelson's
2
dominion and control over the gun did not have to be exclusive to establish constructive
possession. Here,Nelson had dominion and control over her own residence, establishing a
rebuttable presumption that she had dominion and control over the stolen firearm while it was in
her residence under Cantabrana. She picked the gun up, put it in the Tommy Hilfiger bag, and
put the bag on a counter. She not only had the ability to reduce the gun to her immediate
possession, but actually did so. Under the case law above, this establishes the dominion and
control necessary for constructive possession.
11
No. 41689 1 II Cons. w/
- - ( No. 41714 6 II
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And No. 41739 1 II)
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The evidence is sufficient to support Nelson's conviction of possession of a stolen
firearm.
2. Eddie's Unlawful Possession of a Firearm and Possession of a Stolen Firearm
As noted, Eddie was convicted of unlawful possession of a firearm and possession of a
stolen firearm. He stipulated at trial to a prior qualifying conviction necessary to prove second
degree unlawful possession of a firearm. However, citing Callahan, State v. Spruell, 57 Wn.
App. 383, 788 P. d 21 (1990), Cote, he argues that the evidence demonstrates only his
2 and
proximity to and momentary handling of the firearm and, thus, insufficiently establishes that he
possessed it for purposes of either unlawful possession of a firearm or possession of a stolen
firearm. We hold that the evidence is sufficient to support both convictions on the basis of
Eddie's actual and constructive possession of the firearm while at Nelson's residence.
The evidence established that at her residence Nelson put the firearm in the Tommy
Hilfiger bag and put the bag on a counter. When he was ready to leave, Clemmons asked,
Where's the gun ?" and Eddie replied that the gun was on the counter in the bag and handed the
bag to Clemmons. Thus, the evidence definitively established Eddie's knowledge of the
presence and location of the gun, and the jury could rationally infer that Eddie was standing in
close proximity to the counter and, thus,the gun. In addition to Eddie's knowledge and
proximity, he exercised at least passing control over the bag and;thus, the gun, when he handed
the bag to Clemmons. Moreover, unlike Callahan, here no one claimed ownership or even
a
Although Clemmons told Eddie during that drive that he had killed four police officers, the
evidence does not reflect that Clemmons told anyone that he had taken the firearm from Officer
Richards until Cicely asked him while at Nelson's residence what had happened. Thus, the
evidence is sufficient to show that Eddie knew the gun was stolen when he handled it at the
residence.
12
No. 41689 1 II Cons. w/No. 41714 6 II
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And No. 41739 1 II)
- -
exclusive possession of the gun, weighing in favor of at least shared dominion and control. In
sum, the cumulative weight of this evidence was sufficient to establish that Eddie could
immediately reduce the gun to his actual possession, thereby exercising dominion and control
over it and constructively possessing it. See Jones, 146 Wn. d at 333;Partin, 88 Wn. d at 906.
2 2
The evidence also shows that Eddie actually possessed the firearm when he picked up the
Tommy Hilfiger bag, which he knew contained the weapon, and handed it to Clemmons, who
had just asked for the gun. Thus, Eddie had physical custody of the firearm, which is the
definition of actual possession found in Jones, 146 Wn. d at 333. Although of short duration,
2
this evidence is sufficient to establish actual possession of the firearm consistently with Callahan
and Staley under the reasoning applicable to Nelson's possession discussed above.
Whether viewed as actual or constructive possession, the evidence is sufficient to support
.
Eddie's convictions of possession of a stolen firearm and unlawful possession of a firearm.
Douglas's Unlawful Possession of a Firearm and Possession of a Stolen Firearm
Douglas argues under Callahan, Spruell, Cote, and State v. Enlow, 143 Wn. App. 463,
178 P. d 366 (2008), the evidence established only his proximity to Officer Richards's gun.
3 that
We agree and conclude that the evidence is insufficient to establish that Douglas either actually
or constructively possessed the firearm. Accordingly, the evidence is insufficient to support his
convictions for unlawful possession of a firearm and possession of a stolen firearm.
The analyses in prior decisions are helpful in identifying the contours of constructive
possession. In Spruell, 57 Wn. App. at 384, while searching a house, the police found the
defendant in the kitchen and cocaine on a plate that had his fingerprint on it. The court held
under those facts that the defendant's proximity to the drugs was not enough to establish his
13
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 1 II)
- -
dominion and control for purposes of constructive possession. Spruell, 57 Wn. App. at 388 89.
-
In Cote, 123 Wn. App. at 548, the police found components of a methamphetamine lab when
they searched a stolen truck in which the defendant had been a passenger. The defendant's
fingerprints were found on two mason jars in the truck containing various chemicals. Cote, 123
Wn. App. at 548. The court held that because the evidence demonstrated only that Cote "was at
one point in proximity to the contraband and touched it," evidence was insufficient to
the
establish dominion and control and, thus, constructive possession. Cote, 123 Wn. App. at 550.
Enlow presented a similar situation. Law enforcement officers searching a truck discovered
methamphetamine and the materials used to make it and found Enlow hiding under a blanket in
the truck's canopy. Enlow, 143 Wn. App. at 466. Because Enlow did not own the truck or live
at the address and because there was no evidence that he had even momentarily touched the
methamphetamine or the materials to manufacture it,the court held that the evidence was
insufficient to establish his constructive possession of the contraband. See Enlow, 143 Wn.App.
at 469 70. Finally, in Turner, 103 Wn. App. at 518, law enforcement officers discovered a rifle
-
inside a partially opened bow case on the back seat behind the driver's seat in Turner's truck.
This court held that sufficient evidence established Turner's constructive possession of the rifle,
including his dominion and control over his truck, his proximity to the rifle,the extended
duration of time the rifle was in his truck, and Turner's lack of objection to the firearm's
presence in his truck. Turner, 103 Wn. App. at 524.
Here, the State appears to argue that Douglas at least constructively possessed the gun
during the drive to Nelson's residence. Br. of Resp't.28. As discussed above, the jury could
at
infer that both Douglas and the gun were present in Eddie's car during this drive. Although the
14
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 14I)
-
facts do not establish where Douglas sat in the car, the jury might further infer that he was near
the gun. However, like the defendants in Callahan,Spruell, Cote, and Enlow, Douglas did not
have dominion and control over the car;the car was owned and driven by Eddie. No other
evidence suggests that Douglas had the ability while in the car to immediately reduce the gun to
his actual possession, which is a central criterion of constructive possession. See Jones, 146
Wn. d at 333. Because proximity alone is not enough to establish constructive possession,
2
Jones, 146 Wn. d at 333, the evidence is insufficient to establish that Douglas constructively
2
possessed the firearm while in the car. Therefore, the evidence of what occurred in the car is
insufficient to support his convictions for unlawful possession of a firearm or possession of a
stolen firearm.
Turning to the events in Nelson's residence, the State argues that Douglas constructively
possessed the gun while it was in the bag on the counter because "anyone"could have taken
possession of it. Br. of Resp't at 29.'As discussed above, the jury could have inferred that
Douglas was in close proximity to the bag, as he was close to Eddie and Clemmons while Eddie
called Quiana. As noted, however, proximity alone is not enough to establish constructive
possession. Jones, 146 Wn. d at 333. Like the defendants in Callahan,Spruell, Cote, and
2
Enlow, Douglas did not have dominion and control over Nelson's residence. As in Enlow, there
was no evidence suggesting that Douglas even momentarily handled the gun while in Nelson's
residence. Apart from proximity, no evidence suggested that Douglas had dominion and control
over the firearm at Nelson's residence. Therefore, under Jones, the evidence was insufficient to
establish that Douglas ever constructively possessed the firearm.
15
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And No. 41739 1 II)
- -
The State also argues in the following passage that Douglas actually possessed the gun
while treating Clemmons's wound:
As Douglas ... was the one wounds ...
attending [Clemmons's] he would have been in
close proximity to the gun and it is reasonable to infer that he would be the one to take
the gun from [ Clemmons] so that it would not accidentally discharge while he was
treating [Clemmons's] wounds.
Br. of Resp't at 29.
In a sufficiency challenge the State is entitled only to reasonable inferences that can be
drawn from the evidence. See Salinas, 119 Wn. d at 201. The record does not reveal the gun's
2
location between the time Clemmons entered Nelson's residence and the time Nelson put the gun
in the Tommy Hilfiger bag. Nor does the record show whether Clemmons still actually
possessed it when Douglas treated his wound. Thus, there is no basis for inferring that
Clemmons gave the gun to Douglas at that point. The State's argument is mere speculation that
falls short of a reasonable inference from the evidence.
The evidence is not sufficient to support Douglas's convictions of unlawful possession of
a firearm and possession of a stolen firearm through the lens of either actual or constructive
possession. We consequently reverse these convictions and, because double jeopardy bars
retrial, remand for dismissal with prejudice, consistently with State v. Hickman, 135 Wn. d 97,
2
103, 954 P. d 900 (1998).
2
II. EXCEPTIONAL SENTENCES
The defendants next challenge the exceptional sentences imposed under RCW
r)
535( 4A.destructive and foreseeable ( other than the victim)and RCW
9. 3)(
9 impact on persons
v)
535( 4A.offense against a law enforcement officer performing official duties).Before
9. 3)(
9 (
entering the legal analysis, we summarize additional facts relevant to these issues.
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- - ( - -
And No. 41739 1 II)
- -
During an interview with Detective Quilio on November 30, 2009,Nelson claimed that
she had not seen or spoken to Clemmons since Thanksgiving and had no information about the
shootings. She also said she had not spoken to Eddie or Douglas. During a second interview
with Detective Quilio on December 1,Nelson admitted to lying in her first interview and to
assisting Clemmons. Detective Quilio testified that this information would have assisted the
investigation had Nelson disclosed it during her first interview on November 30.
During his interview with detectives, Eddie initially claimed that he had not seen
Clemmons since November 23. But, later in the interview,Eddie admitted to assisting
Clemmons as described above. Similarly, during his interview with Detective Karr, Douglas
first claimed he had not seen Clemmons since a week before the murders. Later in the interview,
Douglas admitted to his interactions with Clemmons after the shootings. Detective Karr testified
that it would have assisted the investigation had Douglas earlier disclosed that Clemmons had
left with a young woman in Auburn; however, Douglas's initial withholding of details about
Clemmons's wound and his still being armed did not affect the investigation because law
enforcement already knew these details.
The testimony at trial described the shock of the search for Clemmons on the slain
officers' families and its effect on law enforcement. Kim Renninger, Officer Renninger's
widow, testified that because four officers had been killed and the killer was still at large, she
was concerned for her and her children's safety and sought protection. When she heard
Clemmons had taken one of the officers' guns, she felt " errified." RP at 242. One of Officer
t 5
Richards's children testified that, because Clemmons had killed four officers and was still at
large, she was "[ cared that he was going to come for the family members or for us." RP at
s] 5
17
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 1 II)
- -
246. Knowing that Clemmons was at large with her father's gun had " ore of an impact on how
m
she] felt." RP at 247.
5
Pierce County Detective Sergeant Chris Adamson testified that he was not aware of any
of Pierce County's approximately 50 detectives who did not participate in the investigation.
Detective Quilio testified that six to seven City of Tacoma detectives were assigned to the
investigation. According to King County Sheriff's Deputy Michael McDonald,the knowledge
that Clemmons still
was " at large and ... possibly ... helped"impacted the King County
Sheriff's Department's daily operations; several King County law enforcement officials were
assigned to assist in the investigation.
Detective Sergeant Kobel testified that the search for Clemmons was not a " egular shift
r
type assignment"and " etectives were called out and [they] stayed with it literally until [ hey]
d t
dropped."9 RP at 877, 882. Finally, City of Lakewood Assistant Chief Michael Zaro testified
that the.
shootings caused a safety concern for officers and their families because Clemmons had
specifically targeted police officers and was still at large. Extra officers were diverted to provide
security to the slain officers' families. According to Assistant Chief Zaro, these concerns were
magnified by the knowledge that people may have been aiding Clemmons. Had Clemmons been
captured more quickly, the fears about him targeting officers would also have subsided more
quickly.
For each count submitted to the jury,the State alleged two aggravating factors: first,that
the offense involved a destructive and foreseeable impact on persons other than the victim ( CW
R
18
No. 41689 1 II Cons. w/No.41714 6 II
- - ( - -
And No. 41739 1 II)
- -
r)),
535( 4A. second, that the offense was committed.against a law enforcement officer
9. 3)(
9 and
RCW 9.
v)).
535( 4A. Based on the testimony at trial,the jury found by special verdicts that
3)(
9
the State had proven the existence of both aggravating factors for each conviction it returned
against the defendants.
At sentencing, the trial court determined that Eddie's and Douglas's convictions for
unlawful possession of a firearm and possession of a stolen firearm were required by law to run
consecutively. The trial court also found that the legislature did not consider either of the
aggravating factors in establishing the standard sentencing range for any of the crimes and
concluded that " ubstantial and compelling reasons"justified an exceptional sentence. Clerk's
s
Papers (CP)at 466 67.
-
On these bases, the trial court imposed an exceptional sentence of 60 months on Eddie's
first degree rendering conviction. It imposed another exceptional sentence by ordering the term
on his rendering conviction to run consecutively to the statutorily-
mandated 43 month and 22-
-
month consecutive sentences on the unlawful possession of a firearm and possession of a stolen
firearm convictions, for a total of 125 months' confinement. -
7 Former RCW 9. 2008)applied to the events of November 29 and 30, 2009. However,
535 (94A.
because the legislature's subsequent amendments to this statute changed it to be gender neutral
and made no substantive changes to the subsections discussed in this opinion, we apply the
current statute.
s
RCW 9.
c)
589( 4A. 1)( that if
9 provides
an offender is convicted under RCW 9.1.for unlawful possession of a
040 4
firearm in the first or second degree and for the felony crimes of theft of a firearm
or possession of a stolen firearm, or both . . . [ t] offender shall serve
he
consecutive sentences for each conviction of the felony crimes listed in this
subsection ( c), for each firearm unlawfully possessed.
1)( and
19
No. 41689-141 (Cons. w/No. 41714 6 II
- -
And No. 41739 1 II)
- -
For Douglas, the trial court imposed two exceptional sentences of 45 months each on his
firearm convictions. The sentences ran consecutively as required by RCW 9.
c)
589( 4A.for a
1)(
9
total of 90 months' confinement.
Finally, the trial court imposed an exceptional sentence of 60 months on Nelson's first
degree rendering conviction and a standard range sentence of 14 months on her possession of a
stolen firearm conviction. The trial court imposed an additional exceptional sentence on Nelson
by ordering her sentences to run consecutively for a total of 74 months' confinement. The
appellants now challenge the legal and factual bases for their exceptional sentences.
Standard of Review
RCW 9. ) out the standards for review of an exceptional sentence:
585( 4A.sets
4
9
To reverse a sentence which is outside the standard sentence range, the reviewing
court must find: (a)Either that the reasons supplied by the sentencing court are
not supported by the record which was before the judge or that those reasons do
not justify a sentence outside the standard sentence range for that offense; or (b)
that the sentence imposed was clearly excessive or clearly too lenient.
RCW 9.
a)
585( 4A.has both a factual and a legal component. State v. Stubbs, 170
4)(
9
Wn. d 117, 123, 240 P. d 143 (2010).A jury must find " ny facts supporting aggravating
2 3 a
circumstances beyond a reasonable doubt and by special interrogatory."
Stubbs,170 Wn. d at
2
123. We review the jury's factual findings under the sufficiency of the evidence standard.
Stubbs, 170 Wn. d at 123. We review the trial court's legal justifications for an exceptional
2
sentence de novo. Stubbs, 170 Wn. d at 124.
2
Iff
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 1 II)
- -
2. RCW 9.
r):
535( 4A. Destructive and Foreseeable Impact on Persons Other Than The
3)(
9
Victim
a. " ictim"of the Offenses
V
Under RCW 9.
r),
535( 4A.the trial court may impose an exceptional sentence when
3)(
9
the jury finds "[ he offense[s]
t] involved a destructive and foreseeable impact on persons other
than the victim."The appellants argue that, because Washington precedent defines the victim of
rendering criminal assistance and unlawful possession of a firearm as the general public, RCW
r)
535( 4A.does not apply as a matter of law. Specifically, they argue that if the victim of
9. 3)(
9
these crimes is the public,which consists of everyone, then there cannot be someone "other"
than the victim as RCW 9.
r)' language requires. Br. of Appellant ( ddie)at
535( 4A.
s plain
3)(
9 E
23 26. We disagree.
-
We review questions of statutory interpretation de novo by ascertaining the Legislature's
intent. State v. Jacobs, 154 Wn. d 596, 600, 115 P. d 281 (2005).Where a statute's meaning is
2 3
plain on its face, we give effect to that meaning as expressing the intent of the legislature.
Jacobs, 154 Wn. d at 600. We determine the statute's plain meaning from the ordinary meaning
2
of its language, as well as from the statute's general context, related provisions, and the statutory
scheme as a whole. Jacobs, 154 Wn. d at 600. Absent a specialized statutory definition, we
2
give a term its plain and ordinary meaning ascertained from a standard dictionary. State v.
Watson, 146 Wn. d 947, 954, 51 P. d 66 (2002).We interpret statutes to give effect to all
2 3
language in the statute and to render no portion meaningless or superfluous. State v. J. .,
P 149
Wn. d 444, 450, 69 P. d 318 (2003).We also interpret statutes to harmonize them whenever
2 3
possible. State v. Powell, 167 Wn. d 672, 695 96,223 P. d 493 (2009).
2 - 3
21
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 14I)
-
Our Supreme Court has held that the victim of unlawful possession of a firearm is the
general public. State v. Haddock, 141 Wn. d 103, 110 11,3 P. d 733 (2000).The appellants
2 - 3
cite numerous cases from other jurisdictions holding that the victim of rendering criminal
assistance (or the similar crime of accessory after the fact)is also the general public. See, e. .,
g
People v. Perry, 218 Mich. App. 520, 534 35,554 N. .362 ( 996).The State accepts this
- 2d
W 1
view in its discussion of rendering criminal assistance by stating, This crime ... is a crime
"
against society."Br. of Resp't at 45 46.
-
The Sentencing Reform Act ( RA),
S however, contains its own definition of victim."
"
RCW 030( 4A.defines "[ v] as "any person who has sustained emotional,
9.3)
5
9 ictim"
psychological, physical, or financial injury to person or property as a direct result of the crime
charged."Emphasis added.)Thus, RCW 9.
( r)
535( 4A.allows for an exceptional sentence
3)(
9
only if the offenses involved a " estructive and foreseeable impact"on persons other than those
d
sustaining injury " s a direct result of the crime charged."
a
Although the SRA does not define " erson,"
p RCW 1.16. 80 defines the term to include
0
individuals, as well as political or corporate entities. Black's Law Dictionary defines " erson,"
p
among other things, as "[ human being."BLACK'S LAw DICTIONARY at 1257 (9th ed. 2009).
a]
Similarly, Webster's Third New International Dictionary of the English Language contains
several relevant definitions of person ":
"
1. an individual human being
6. a human being, a body of persons, or a corporation, partnership, or other legal
entity that is recognized by law as the subject of rights and duties
Ch.9. RCW.
94A
22
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 1 II)
- -
8. a being characterized by conscious apprehension, rationality, and a moral
sense
9. a living individual unit
WEBSTER's THIRD NEW INT'L DICTIONARY at 1686 (2002).
A common thread in these entries is the definition of a person as a discrete, identifiable
individual or group entity, as opposed to the inchoate mass of society as a whole. Under these
definitions, even when the victim of the underlying crime is considered to be society as a whole,
aggravating circumstances exist under the terms of RCW 9.
r)
535( 4A.when the evidence
3)(
9
demonstrates a destructive and foreseeable impact on a specific individual or entity. This view is
also consistent with RCW 9.3)'
s
030( 4A.definition of victim,"
5
9 " since society qua society may
be directly injured by certain crimes which have an indirect or secondary, but nonetheless
destructive and foreseeable,"
effect on specific individuals. The crime of rendering criminal
assistance brightly illustrates this situation. It directly damages society as a whole by
compromising those processes at the heart of ordered liberty. It may also, in certain
circumstances, touch specific individuals in ways beyond its general societal effect. If
destructive and foreseeable,"
those effects are aggravating circumstances under the terms of
RCW 9.
r).
535( 4A.
3)(
9
Were we to accept the appellants' interpretation that " ersons"and " ociety"are one and
p s
the same, we would render the aggravator meaningless for these crimes, an interpretation to be
avoided under J. ., Wn. d at 450. On the other hand, applying RCW 9.
P 149 2 r)
535( 4A.to the
3)(
9
crimes of rendering criminal assistance and unlawful possession of a firearm when there exists a
destructive and foreseeable impact on specific individuals or entities is consistent with both the
23
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739-
11) 1-
definitions of person"and " ictim"noted above. In the absence of any exception for these
" v
crimes in RCW 9.
r),
535( 4A.this interpretation of the statute best serves legislative intent.
3)(
9
b. Nature of the Impact from Rendering Criminal Assistance
Nelson argues that the destructive and foreseeable aggravator of RCW 9.
r)
535( 4A.
3)(
9
was inapplicable to her rendering conviction because the effects of that crime were factors the
Legislature necessarily considered in setting the standard range. Similarly, Eddie and Nelson
argue that the destructive and foreseeable aggravating circumstance is inapplicable because the
impact of their rendering criminal assistance was not of such a distinctive nature that it is not
"
normally associated with the commission of the offense."Br. of Appellant ( ddie)at 28 30;Br.
E -
of Appellant ( elson)at 11.
N
When an aggravating factor is used to enhance punishment, it "`
must take into account
factors other than those which are necessarily considered in computing the presumptive range for
the offense. "' State v. Chadderton, 119 Wn. d 390, 395, 832 P. d 481 (1992)quoting State v.
2 2 (
Nordby, 106 Wn. d 514, 518, 723 P. d 1117 (1986)). means that factors inherent in the
2 2 This
crime cannot justify an exceptional sentence.
The State argues that the assistance which Eddie and Nelson extended to Clemmons had
a destructive and foreseeable impact on law enforcement. This crime, however, already takes
into account the effect on law enforcement. Specifically, the statute criminalizes acts which
prevent, hinder, or delay the apprehension" of the principal. RCW 9A. 6.This
050.
7
duplicates the destructive and foreseeable impact argued by the State, that the assistance which
Eddie and Nelson extended to Clemmons prolonged his apprehension. See also United States v
to
Former RCW 9A. 6.1982)applied to the dates of the appellants' crimes. For the reasons
050 (7
stated above, we apply the current statute.
24
No. 41689 1 II Cons. w/No. 41714 6 II.
- - ( - -
And No. 41739 1 II)
- -
Brenson, 104 F. d 1267, 1286 (1 lth Cir. 1997) ( "` gist of being an accessory after the fact
3 The
lies essentially in obstructing justice by rendering assistance to hinder or prevent the arrest of the
offender after he has committed the crime. "') quoting
( United States v. Huppert, 917 F. d 507,
2
510 (11th Cir. 1990).Thus, under Chadderton the delays and extra burdens on law enforcement
caused by this assistance are inherent in the crime and cannot justify an exceptional sentence.
The State argues also that Eddie's and Nelson's assistance to Clemmons had a destructive
impact on the public. As discussed above, though, the general public is the victim of rendering
criminal assistance. Thus, the legislature necessarily considered this type of impact on the public
in setting the standard range for this crime.
The State argues further that Eddie's and Nelson's assistance had a destructive impact on
the families of the slain officers. The Chadderton Court's analysis of another aggravating
circumstance is helpful in determining whether the effect on the surviving families may sustain
an exceptional sentence under RCW 9.
r).
535( 4A. Chadderton was convicted of
3)(
9
manslaughter for the death of a nursing home resident under his care. The Court held that the
victim's vulnerability could be an aggravating circumstance;since it was " ot a factor of the sort
n
the Legislature necessarily considered in setting the standard.sentence range for first degree
manslaughter."Chadderton, 119 Wn. d at 396. In reaching this conclusion, the Court noted
2
prior decisions holding that the extreme youth of a victim may serve as an aggravating factor for
statutory rape or indecent liberties, that the particular vulnerability of foreigners to a robber's
demands may justify an enhanced sentence for robbery, and that the vulnerability of a stranded
motorist may serve as an aggravating factor for the crime of rape. Chadderton, 119 Wn. d at
2
a",
25
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 1 II)
- -
Thus, although crimes such as rape, robbery and manslaughter may be committed against
anyone, the legislature did not necessarily consider the vulnerability of specific victims when
setting the standard range. Here, the knowledge that Clemmons had murdered four officers and
was still at large had a destructive emotional impact on the slain officers' families. Kim
Renninger and Officer Richards's daughter testified that they feared Clemmons would target
them or the rest of their families. Although Eddie and Nelson themselves did not murder the
four officers, their actions in helping Clemmons evade apprehension lengthened this destructive
impact on the officers' families. Consistently with Chadderton, there is no indication we find in
the statute or otherwise that this sort of effect was necessarily considered in computing the
presumptive range for rendering criminal assistance. On the contrary, the nature of the "victim"
of the crime of rendering assistance, discussed above in part II. .above, signals that these
i.,
B
effects on specific individuals were not considered for this purpose.
A separate but related requirement is that a destructive and foreseeable impact justifying
an exceptional sentence must be of a " estructive nature that is not normally associated with the
d
commission of the offense in question."State v. Cuevas Diaz, 61 Wn. App. 902, 906, 812 P. d
- 2
883 (1991).For example, in State v. Johnson, 69 Wn. App. 528, 539, 849 P. 2d 662 (1993),
Division One of this court held that a gang related shooting in front of an elementary school that
was in session was sufficiently distinctive in nature from the normal circumstances of first or
second degree assault to uphold the aggravating factor. In that case, the trial court heard
evidence that many of the children were afraid to go to school after the shooting and that the
parents were afraid their children were not safe while at school. Johnson, 69 Wn. App. at 539.
26
No. 41689- 41 Cons. w/No. 41714 6 II
1 ( - -
And No. 41739 1 II)
- -
Similarly, in State v. Jackson, 150 Wn. d 251, 276, 76 P. d 217 (2003), Supreme
2 3 our
Court upheld an enhanced sentence where the defendant created a story to cover up his murder of
his daughter. The Court reasoned that where a person disappears, as the victim did here, it was
normal for the police and community to expend extra resources in searching for the victim; thus
this could not be the basis of upholding the aggravating factor. Jackson, 150 Wn. d at 275. The
2
court reasoned also that the effect on the children at the victim's elementary school justified the
enhancement, since the evidence showed that parents would not allow children to walk to school
alone, the principal personally walked children home, many children had nightmares, and their
school performance declined. Jackson, 150 Wn. d at 276.
2
In Cuevas Diaz, 61 Wn. App. at 903, the defendant broke into the victim's house and
-
sexually assaulted her. After the victim broke away from her attacker, the defendant followed
her to her children's room, where the victim screamed at the defendant. Cuevas Diaz, 61 Wn.
-
App. at 903. We rejected the trial court's holding that this had a foreseeable and destructive
impact on the community generally, especially single mothers in the area. Cuevas Diaz, 61 Wn.
-
App. at 905. We recognized that the crime had an effect on the community, but that the impact
was foreseeable and exists in any case. Cuevas Diaz, 61 Wn. App. at 905. However, we upheld
-
the aggravating factor based on the trial court's finding that the commission of the crime in front
of the children severely traumatized them, which is distinguishable from other assaults of a
similar nature. Cuevas Diaz, 61 Wn. App. at 905 06.
- -
In general, rendering assistance to a murderer, thus delaying his apprehension, will
necessarily prolong the emotional anguish of the victim's family. The evidence here, though,
demonstrated much more: that the slain officers' families particularly feared that they might also
27
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 1 II)
- -
be Clemmons's targets, since he had specifically murdered four police officers. Eddie and
Nelson prolonged this fear by rendering criminal assistance to Clemmons. Accordingly, their
actions caused a destructive impact on the slain officers' families not normally associated with
the underlying crime.
c. Sufficiency of the Evidence
Finally, the appellants argue that sufficient evidence did not support finding that their
crimes of rendering criminal assistance, unlawful possession of a firearm, and possession of a
stolen firearm caused a destructive and foreseeable impact on persons other than the victim.
None of the appellants challenge whether the impacts argued by the State were foreseeable.
Thus, we focus on whether the evidence is sufficient to show a destructive impact.
As discussed above, the destructive impact on the slain officers' families was a legally
justifiable basis for imposing an exceptional sentence. As noted above, Kim Renninger and
Officer Richards's daughter testified to the fear caused by their knowledge that Clemmons was
still at large, and Eddie and Nelson prolonged that fear by aiding Clemmons in evading capture.
Accordingly, sufficient evidence supports finding that the assistance Eddie and Nelson rendered
had a destructive impact on the officers' families. The imposition of an exceptional sentence for
these convictions under RCW 9.
r)
535( 4A.was justified under the law.
3)(
9
The same, however, cannot be said for Eddie's and Nelson's crimes of unlawfully
possessing a firearm and possessing a stolen firearm. The slain officers' family members and
law enforcement officers testified about the fear, concern, and other emotional impacts caused by
the knowledge that Clemmons, the officers' murderer, was still at large and armed, particularly
with Officer Richards's gun. But the impact caused by Clemmons's unlawful possession of this
28
No. 41689 1 II Cons. w/No.41714 6 II
- - ( - -
And No. 41739-
11) 1-
particular stolen firearm while at large cannot be imputed to Eddie's and Nelson's possession.
Neither was an accomplice to the murders and, apart from their rendering criminal assistance,
their possession of Officer Richards's gun did nothing to cause a prolonged fear of Clemmons
being armed with the same gun. Accordingly, sufficient evidence does not support finding that
their crimes of unlawful possession and stolen possession of a firearm caused a destructive
impact on anyone other than the victim. The imposition of an exceptional sentence for these
convictions was not justified under RCW 9. 5( )(
53 r).
94A. 3
RCW 9.
v):
535( 4A. Offenses Against Law Enforcement Officers
3)(
9
a. Application of RCW 9.
v)
535( 4A.
3)(
9
Under RCW 9.
v),
535( 4A.the trial court may impose an exceptional sentence when
3)(
9
the jury finds that
t] offense was committed against a law enforcement officer who was
he
performing his or her official duties at the time of the offense, the offender knew
that the victim was a law enforcement officer, and the victim's status as a law
enforcement officer is not an element of the offense.
The public is the victim of the crimes of rendering criminal assistance and unlawful .
possession of a firearm. RCW 9.
r)
535( 4A.authorizes imposition of an exceptional sentence
3)(
9
for a destructive and foreseeable impact on " ersons other than the victim,"
p thus encompassing
specific individuals and entities, such as the slain officers' families,whose circumstances
distinguish them from the inchoate public. In contrast, RCW 9.
v)
535( 4A.specifically
3)(
9
requires that the offense be committed " gainst a law enforcement officer."Emphasis added.)
a (
Accordingly, by its plain language RCW 9. ) not apply to the crime of
535( 4A:does
v
9
rendering criminal assistance or unlawful possession of a firearm in these circumstances. The
State concedes that this aggravating factor is inapplicable to Eddie's and Nelson's conviction for
29
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 1 II)
- -
unlawful possession of a firearm. This aggravating circumstance, though, may apply to the
crime of possession of a stolen firearm.
b. Sufficiency of the Evidence
Appellants contend that sufficient evidence does not support a finding that their offenses
of rendering criminal assistance, unlawful possession of a firearm, and possession of a stolen
firearm were committed against a law enforcement officer in the performance of his official
duties. As discussed above, the law enforcement victim aggravator is legally inapplicable to the
crimes of rendering and unlawful possession in these circumstances. Thus, we discuss only
whether sufficient evidence sustains its application to the convictions for possession of a stolen
firearm.
Our Supreme Court has held that the victim of possession of a stolen firearm is the
rightful owner of the firearm. Haddock, 141 Wn. d at 111. The State contends that the victim of
2
the appellants' possession of Officer Richards's stolen gun was Officer Richards. Although
Officer Richards was performing his official duties when Clemmons shot and killed him with his
own service weapon, the evidence shows that Officer Richards was deceased by the time Eddie
11
and Nelson possessed his gun. Thus, Officer Richards cannot be considered to have been in
performance of his " fficial duties"during that time. RCW 9.
o v).
535( 4A. Accordingly,
3)(
9
under this statute sufficient evidence does not support the jury's finding that Eddie's and
11
This aggravator does not apply even if the true owner of the gun was the City of Lakewood
Police Department. RCW 9.
v)
535( 4A.specifies that the crime must be committed against "a
3)(
9
law enforcement officer," is,an individual law enforcement officer. See State v. Ose, 156
that
Wn. d 140, 146, 124 P. d 635 (2005).The Lakewood Police Department is a composite
2 3
governmental entity, not a single officer.
30
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 1 II)
- -
Nelson's possession of a stolen firearm was committed against a law enforcement officer in the
performance of official duties.
The dissent points out that Haddock also held that " he unlawful possession of property
t
taken in a theft is a mere continuation of the thief s act of depriving the true owner of his or her
right to possess their property."Haddock, 141 Wn. d at 112. From this, the dissent argues that
2
the victim of possession of a stolen firearm is the same victim of the theft that originally
deprived him or her of the firearm. Since the firearm was stolen from Officer Richards, the
dissent concludes that Officer Richards is the victim of both the theft and any resulting
possession of the stolen firearm, triggering application of the law enforcement victim aggravator.
Haddock is distinguishable because it dealt with whether certain acts constituted the same
course of criminal conduct for purposes of calculating an offender score, and the dissent's logic
is impeccable in that context. Here,however, we are concerned with the application of the "law
enforcement"aggravator to the crimes of possession of a stolen firearm by Eddie andNelson.
This aggravator applies only if the "offense was committed against a law enforcement officer
who was performing his or her official duties at the time of the offense. RCW
v)
535( 4A.emphasis added).Eddie and Nelson first possessed Richards's stolen gun after
9. 3)(
9 (
he was deceased. Thus, at the time of the offense"Officer Richards was not performing his
"
official duties, and this aggravator does not apply.
This reading will not lead to the absurdity posited by the dissent. If one stole an officer's
firearm while the officer was on duty, and the other elements of RCW 9.
v)
535( 4A.were in
3)(
9
place, the aggravator would apply. The officer's transition to offduty status would not remove
-
the aggravating circumstance from the theft when he was on duty. With high respect for our
31
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 1 II)
- -
colleague, we disagree with the dissent. The aggravating circumstance of RCW 9.
v)
535( 4A.
3)(
9
does not apply to Eddie's and Nelson's convictions for possession of a stolen firearm.
4. Summary of Holdings on the Exceptional Sentences
The exceptional sentences based on RCW 9.
r)
535( 4A.imposed on Eddie's and
3)(
9
Nelson's convictions for rendering criminal assistance were legally and factually justified.
Sufficient evidence, however, did not support the jury's application of the aggravating
circumstance of RCW 9.
r)
535( 4A.to their unlawful possession of a firearm and possession
3)(
9
of a stolen firearm convictions. Further, the law enforcement victim aggravating factor under
RCW 9.
v)
535( 4A.is legally inapplicable to Eddie's and Nelson's convictions for rendering
3)(
9
criminal assistance and unlawful possession of a firearm. We hold also that sufficient evidence
did not support the jury's finding that this aggravator applied to their possession of a stolen
firearm convictions.
III. JUDGMENT AND SENTENCE
Eddie, Douglas, and Nelson argue that the trial court erred ( )
1 when it did not indicate on
their judgment and sentences that all but one count of rendering criminal assistance against each
of them had been dismissed as a result of combining them into one count or ( )
2 when it did not
enter written orders dismissing those counts. Douglas further argues that the trial court should
have noted on the judgment and sentence or entered a written order reflecting its oral dismissal
of counts 1 and 2 against him for insufficiency of the evidence. Finally,Nelson argues that the
trial court committed a scrivener's error when it indicated on her judgment and sentence that an
exceptional sentence was imposed on both counts 1 and 5.
32
No. 41689- 41 Cons. w/No.41714 6 II
1 ( - -
And No. 41739 1 II)
- -
Before trial,the defendants moved to dismiss all but one of the remaining counts of first
degree rendering charged against each of them. The trial court denied the motion, but ruled as a
matter of law that the statute governing this crime, former RCW 9A. 6.2003),
070 (
7 contains
one single unit of prosecution"consisting of the course of conduct of obstructing the
"
apprehension and prosecution [of the subject]" that the crime " an be committed in multiple
and c
ways"enumerated in RCW 9A. 6. Consistently with this ruling, the court instructed the
050.
7
jury on one count of rendering for each defendant, and the "to convict"instruction for each count
listed alternative means of committing the offense that had been charged initially as the separate
counts of that offense. The trial court also orally dismissed two of the rendering counts (counts 1
and 2)against Douglas for insufficiency of the evidence.
The jury found by special verdict form that Eddie had committed rendering under two of
the listed alternative means, and that Nelson had committed rendering through one of the
alternative means. As already noted, the jury acquitted Douglas of rendering criminal assistance.
The trial court sentenced Eddie and Nelson each for conviction of one count of rendering
criminal assistance. All three defendants' judgment and sentence forms contained a line reading,
The court DISMISSES Counts"followed by a blank. CP at 472. The trial court did not write
anything in these blanks. On Nelson's judgment and sentence, the trial court checked a box
indicating that "[
s] and compelling reasons exist which justify an exceptional sentence .
ubstantial
above the standard range for Count(
s)"
and wrote in counts 1 and 5. CP at 1632. No one
objected to any of these actions by the trial court at sentencing.
Turning now to their claimed errors, the appellants cite State v. Moten, 95 Wn. App. 927,
976 P. d 1286 (1999), State v. Ford, 137 Wn. d 472, 973 P. d 452 (1999), the
2 and 2 2 for
33
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 1 II)
- -
proposition that the trial court's failure to list its dismissal of counts on their judgment and
sentences requires remand for correction. Those decisions, however, are distinguishable. In
Moten, 95 Wn. App. at 929, the defendant's judgment listed an incorrect statutory reference to an
offense. Division One of this court held that the incorrect statutory reference was a scrivener's
error and remanded for its correction. Moten, 95 Wn. App. at 929. In Ford, 137 Wn. d at 475-
2
76, the trial court included outofstate convictions in calculating Ford's offender score, even
- -
though the State had failed to support a comparability determination at sentencing. Because the
State failed to meet its burden of proving the compatibility of out ofstate convictions before
- -
they could be included, the court held the sentence was "llegal or erroneous" and could be
i
challenged for the first time on appeal. Ford, 137 Wn. d at 484 85.
2 -
Here, the trial court ruled that the offense of rendering criminal assistance contains a
single unit of prosecution consisting of a course of conduct. Based on this ruling, it ultimately
instructed the jury on only one count of rendering for each defendant, and the jury convicted
Eddie and Nelson of one rendering count each. On their judgment and sentences, the trial court
listed and imposed sentence on only one rendering conviction each. In short, Eddie's and
Nelson's judgments were entirely consistent with both the trial court's ruling and the jury's
12
verdict. Thus, unlike in Moten and Ford, in this case the appellants fail to demonstrate any
error in their judgments warranting remand.
12
Nelson argues, without citation to authority, that her judgment and sentence did not properly
reflect the jury's verdict because "[ he jury acquitted [her] of all of the `means' which had
t]
originally been charged."Br. of Appellant at 20. Even if this court considered this argument
without citation to authority, see RAP 10.
a)(Nelson misstates the record. The jury returned
6),
3(
a special verdict finding that Nelson had committed rendering through only one means which
corresponded with count 7 as charged against her.
34
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 1 II)
- -
Further, even if we assume that the trial court actually dismissed the multiple rendering
counts later submitted to the jury as one count with alternative means of commission, the
appellants fail to cite any authority requiring the trial court to enter a written order of dismissal
or note such dismissals on the judgments. Likewise, Douglas fails to cite any authority requiring
the trial court,when it orally dismisses a count, to enter a written order or note the dismissal on
the judgment. We ordinarily do not address assertions unsupported by argument or authority.
State v. Young, 89 Wn. d 613, 625, 574 P. d 1171 (1978);
2 2 State v. Selander, 65 Wn. App. 134,
136, 827 P. d 1090 (1992);
2 State v. Thomas, 150 Wn. d 821, 874, 83 P. d 970 (2004),
2 3
abrogated in part on other grounds by Crawford v. Washington, 541 U. . 36, 124 S. Ct. 1354,
S
158 L.Ed. 2d 177 (2004); also RAP 10.
see a)(
6).
3(
Finally, the trial court did not err when it indicated on Nelson's judgment that it imposed
an exceptional sentence on her rendering and possession of a stolen firearm convictions. The
trial court imposed an exceptional sentence of 60 months on Nelson's first degree rendering
conviction and a standard range sentence of 14 months on her possession of a stolen firearm
conviction and ordered Nelson's sentences to run consecutively. RCW 9. )
589( 4A.provides
1
9
that, with exceptions, two or more current offenses shall be served concurrently, and RCW
535
9. deems a departure from that standard to be an exceptional sentence. Thus, the trial
94A.
court was correct in indicating that it imposed two exceptional sentences on Nelson.
35
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 1 II)
- -
IV. STATEMENT OF ADDITIONAL GROUNDS (SAG)
In his SAG, Douglas argues that the trial court's instruction 35, the unanimity instruction
regarding the special verdict forms, violated the rule in State v. Bashaw, 169 Wn. d 133, 234
2
P. d 195 (2010),
3 overruled by State v. Guzman Nunez, 174 Wn. d 707, 285 P. d 21 (2012).He
2 3
further contends that defense counsel was ineffective for failing to object to this instruction.
Instruction 35 provided:
In order to answer a question on a special verdict form " yes," twelve of you
all
must unanimously be satisfied beyond a reasonable doubt that " es"is the correct
y
answer. If you are not unanimously satisfied beyond a reasonable doubt that
yes "' is the correct answer, then fill in the blank on the special verdict with the
word " o."
n
Because this is a criminal case, each of you must agree for you to return a verdict.
CP at 447.
To begin with,this jury instruction actually complied with Bashaw's requirements. See
Guzman Nunez, 174 Wn. d at 716 17. Moreover, even if the instruction violated Bashaw's
2 -
nonunanimity rule, our, Supreme Court rejected that rule and overruled Bashaw in Guzman
Nunez, 174 Wn. d at 718. The instruction was not erroneous, and defense counsel was neither
2
deficient nor ineffective for not objecting to it. A failure to demonstrate either deficient
performance or prejudice defeats an ineffective assistance claim. See State v. McFarland, 127
Wn. d 322, 334 35,899 P. d 1251 (1995).Therefore, this claim fails.
2 - 2
V. SUMMARY OF DECISION
We hold that sufficient evidence supported Eddie's conviction for unlawful possession of
a firearm and possession of a stolen firearm and Nelson's conviction for possession of a stolen
firearm. Sufficient evidence, however, did not support Douglas's convictions for unlawful
possession of a firearm and possession of a stolen firearm. The exceptional sentences imposed
36
No.41689 1 II Cons.w/No. 41714 6 11
- - ( - -
And No. 41739 1 II)
- -
under RCW 9.
r)
535( 4A.on Eddie's and Nelson's rendering of criminal assistance
3)(
9
convictions were legally and factually justified. However, sufficient evidence did not support
application of the aggravating circumstance of RCW 9.
r)
535( 4A.to Eddie's unlawful
3)(
9
possession of a firearm and possession of a stolen firearm convictions or to Nelson's possession
of a stolen firearm conviction. Further, the law enforcement victim aggravating factor under
RCW 9.
v)
535( 4A.is legally inapplicable to Eddie's and Nelson's convictions for rendering
3)(
9
criminal assistance and unlawful possession of a firearm, and sufficient evidence did not support
applying the law enforcement victim aggravating factor to Eddie's and Nelson's possession of a
stolen firearm convictions. Finally,the appellants did not demonstrate any error in their
judgments or sentences regarding dismissed or consolidated counts, and the trial court's
unanimity instruction was not erroneous.
Therefore, we affirm Eddie's and Nelson's convictions. We reverse Douglas's unlawful
possession of a firearm and possession of a stolen firearm convictions and remand for dismissal
of those convictions with prejudice. We also remand for resentencing of Eddie and Nelson
consistently with this opinion.
BJORZEN,
I concur:
ee, ,
ACJ
3737
No. 41689 1 II Cons. w/No.41714 6 II
- - ( - -
And No. 41739 1 II)
- -
Qu BRINTNALL, I
NN- (
dissenting in part) — While I concur with the majority of my
colleagues' opinion, I write separately because I believe that there is sufficient evidence to
support the jury's finding that Eddie Davis's and Latricia Nelson's convictions of possession of a
stolen firearm were committed against a law enforcement officer. RCW 9.
v).
535( 4A.
3)(
9
The majority opinion states that although the victim of possession of a stolen firearm is
the owner of the firearm, there was not sufficient evidence to support the jury's finding that the
offense was aggravated by RCW 9.
v).
535( 4A. Under RCW 9.
3)(
9 v),
535( 4A.an offense is
3)(
9
aggravated if "[ he offense was committed against a law enforcement officer who was
t]
performing his or her official duties at the time of the offense, the offender knew that the victim
was a law enforcement officer, and the victim's status as a law enforcement officer is not an
element of the offense."The majority opines that because Officer Greg Richards was dead at the
time Davis and Nelson possessed his firearm, he was not performing his official duties at the
time of the offense; and, therefore, the aggravating factor does not apply. I cannot agree.
We should not interpret statutes in a manner that leads to absurd results. State v. Snapp,
119 Wn. App. 614, 626, 82 P. d 252 (citing In re Pers. Restraint ofBrown, 143 Wn. d 431, 466,
3 2
21 P. d 687 (2001)),
3 review denied, 152 Wn. d 1028 (2004).Under the majority's interpretation
2
of RCW 9.
v),
535( 4A.a person could steal an officer's firearm and be guilty of aggravated
3)(
9
possession of a stolen firearm while the officer is on duty; however, as soon as the officer goes
-
offduty,the aggravating factor would apparently no longer apply to the possession of the stolen
-
firearm. The legislature cannot possibly have intended to transform an aggravated offense into a
nonaggravated offense simply because the victim officer is no longer duty. Therefore, I
on -
38
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 1 II)
- -
cannot agree with the majority's interpretation of RCW 9.
v)
535( 4A. as it applies to
3)(
9
possession of a firearm stolen from a law enforcement officer.
Under what I consider to be a more reasonable and workable interpretation of the statute,
there is sufficient evidence to support the jury's finding that RCW 9.
v)
535( 4A.applied to
3)(
9
Davis's and Nelson's possession of a stolen firearm conviction. For RCW 9.
v)
535( 4A.to
3)(
9
apply, there has to be sufficient evidence to prove (1) offense was committed against a law
the
enforcement officer, 2) officer was performing his or her duties at the time of the offense,
( the
3) offender knew the victim was a law enforcement officer, and ( the victim's status as law
the 4)
enforcement officer is not an element of the offense. As the majority correctly points out, our
Supreme Court has stated that the victim of possession of a stolen firearm is the owner of the
firearm. State v. Haddock, 141 Wn. d 103, 111, 3 P. d 733 (2000). But the court goes on to
2 3
explain that "the unlawful possession of property taken in a theft is a mere continuation of the
thief's act of depriving the true owner of his or her right to possess their property." Haddock,
141 Wn. d at 112.
2 Following our Supreme Court's reasoning, the victim of possession of a
stolen firearm is the same victim of the theft that originally deprived him or her of the firearm.
In my opinion, reading RCW 9.
v),
535( 4A. possession of a stolen firearm is
3)(
9
committed against a law enforcement officer while in performance of his or her official duties if
the original theft was committed against a law enforcement officer performing his or her official
duties. See Haddock, 141 Wn. d 112 (possession of a stolen firearm is a continuation of the
2
original theft).Here, the firearm was stolen from Officer Richards, thus Officer Richards is the
victim of both the theft and any resulting possession of the stolen firearm. It is undisputed that
39
No. 41689 1 II Cons. w/No. 41714 6 II
- - ( - -
And No. 41739 1 II)
- -
13
Officer Richards was a law enforcement officer and that he duty
was on - at the time of the theft.
Therefore, the first two requirements of RCW 9.
v)
535( 4A.are met.
3)(
9
In this case, Davis and Nelson did not commit the original theft of the firearm.
Therefore, there also has to be sufficient evidence to prove that Davis and Nelson knew that the
victim was a law enforcement officer. Here, Cicely Clemmons testified that Maurice Clemmons
stated, in Davis's and Nelson's presence, that he had killed four police officers and taken one of
the officer's guns. This is sufficient evidence to prove that Davis and Nelson knew that the
firearm was stolen from a law enforcement officer.
Finally, the victim's status as a law enforcement officer is not an element of possession of
a stolen firearm. See RCW 9.1.I believe that there is sufficient evidence to support
a).
040(
1)(
4
the jury's finding that RCW 9.
v)
535( 4A.applied to Davis's and Nelson's possession of a
3)(
9
stolen firearm convictions. Accordingly, I respectfully dissent from the portion of the majority
opinion holding that there was insufficient evidence to support the jury's finding on RCW
v)
535( 4A.and I would uphold the jury's verdict on that finding.
9. 3)(
9
OUINN-
BRINTNALL, J.
13
Moreover, as the trial court noted, the weapon was Officer Richards's service revolver and
also the property of the Lakewood Police Department.
40