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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, )
)
v. ) No. 89448-5
)
EDDIE LEE DAVIS, )
)
Petitioner. )
______________________ ) ENBANC
)
STATE OF WASHINGTON, )
)
Respondent, )
) Filed DEC 2 4 2014
v. )
)
LETRECIA NELSON, )
)
Petitioner. )
______________________ )
)
STATE OF WASHINGTON, )
)
Plaintit1~ )
)
v. )
)
DOUGLAS E. DAVIS, )
)
Defendant. )
______________________ )
State v. Davis & Nelson, No. 89448-5
FAIRHURST, J.-In November 2009, Maurice Clemmons shot and killed
four Lakewood police officers. Clemmons contacted Eddie Lee Davis and Letrecia
Nelson shortly after the murders, and based on their actions following that contact,
Davis and Nelson were convicted of rendering criminal assistance and possession of
a stolen firearm. Davis was also convicted of unlawful possession of that firearm.
This opinion, which has four votes, would hold that the State presented sufficient
evidence to support the firearm possession convictions. However, that is not the
opinion of the majority. On the second issue, the court with eight votes finds that
the trial court's imposition of an exceptional sentence as to Davis' and Nelson's
convictions for rendering criminal assistance is not legally justified. Thus, the result
of the three opinions of the court is to reverse the Court of Appeals and remand for
further proceedings.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The facts of the murders are notorious and undisputed. On Sunday, November
29, 2009, Clemmons entered a coffee shop just before 8:00 a.m. with two handguns
and began shooting at four Lakewood police officers, fatally wounding three. The
fourth officer struggled with Clemmons and shot Clemmons once in the side, but
Clemmons wrested the fourth officer's gun from him, fatally shot him, and left with
2
State v. Davis & Nelson, No. 89448-5
the stolen gun. A Seattle police officer shot and killed Clemmons on December 1,
2009 when Clemmons attempted to draw the stolen gun on the officer.
This case concerns the events of November 29, 2009 that occurred after
Clemmons left the coffee shop. 1 There was some conflicting evidence at trial, but
based on the nature of the issues presented for review, the evidence is taken in the
light most favorable to the State, as discussed below. More specific discussion of the
events is included in our analysis where relevant.
Clemmons fled the coffee shop in a pickup truck driven by another. After
abandoning the truck, Clemmons went to Davis' home, requested a ride to a house
in Auburn, and said he had been shot while killing four police officers.
Davis drove Clemmons to the Auburn house, which was Nelson's home.
Clemmons banged on the window and then knocked on the door, saying he had been
shot. Nelson let Clemmons inside, along with Davis. Clemmons told Nelson he had
killed four police officers, been shot in the process, and stolen one officer's gun. At
Clemmons' request, he was given fresh clothing and help treating his gunshot
wound. Nelson put some clothes and the stolen gun in a shopping bag that was left
on a counter. Just before leaving, Clemmons asked where the gun was and Davis
replied that it was in the bag on the counter and gave the bag to Clemmons.
1
Another individual, Douglas Davis, was present during many of these events but is not a
party to this case on review. In this opinion, "Davis" refers to petitioner Eddie Lee Davis.
3
State v. Davis & Nelson, No. 89448-5
Davis and Nelson were convicted of first degree rendering criminal assistance
and possession of a stolen firearm. Davis was also convicted of second degree
unlawful possession of a firearm. The jury found by special verdict the aggravating
factor that "[t]he offense involved a destructive and foreseeable impact on persons
other than the victim," and the trial court imposed exceptional sentences for the
rendering criminal assistance convictions. 2 RCW 9.94A.535(3)(r). 3
Both Davis and Nelson argue that the State did not present sufficient evidence
to support the jury's determination that they possessed the stolen gun. Both also
argue that their exceptional sentences for rendering criminal assistance are not
legally or factually justified. We granted Davis' and Nelson's petitions for review.
State v. Davis, 179 Wn.2d 1014, 318 P.3d 280 (2014). We denied the State's cross
petition.
ISSUES
I. Does sufficient evidence support Davis' and Nelson's convictions
relating to possession of a firearm?
II. Are the exceptional sentences for rendering criminal assistance
factually and legally justified?
2
The Court of Appeals reversed the application of this aggravating factor to the other
charges, and the application of another aggravating factor as to all charges. We do not review those
holdings.
3
While several of the statutes at issue have been amended since the time of the offenses,
none of those amendments are material to our decision, so we cite the current versions.
4
State v. Davis & Nelson, No. 89448-5
ANALYSIS
I. The State presented sufficient evidence of firearm possession
The firearm at issue here is the gun Clemmons stole from one of the officers
he shot and killed. Davis and Nelson argue the evidence presented at trial showed,
at most, their proximity to and momentary handling of the stolen gun and so the
evidence is insufficient to support the essential element of possession for their
convictions for possessing a stolen firearm, RCW 9A.56.31 0, and Davis' conviction
for unlawful possession of a firearm, RCW 9.41.040(2)(a). We disagree.
Our review on a challenge to the sufficiency of the evidence supporting a
criminal conviction is highly deferential to the jury's decision, and we do not
consider "questions of credibility, persuasiveness, and conflicting testimony." In re
Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277 (2011).
[T]he test is whether, after viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. All
reasonable inferences from the evidence must be drawn in favor of the
State and interpreted most strongly against the defendant.
State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006) (citations omitted).
A person actually possesses something that is in his or her physical custody,
and constructively possesses something that is not in his or her physical custody but
is still within his or her "dominion and control." State v. Callahan, 77 Wn.2d 27, 29,
459 P.2d 400 (1969). For either type, "[t]o establish possession the prosecution must
5
State v. Davis & Nelson, No. 89448-5
prove more than a passing control; it must prove actual control." State v. Staley, 123
Wn.2d 794, 801, 872 P.2d 502 (1994). The length of time in itself does not determine
whether control is actual or passing; whether one has actual control over the item at
issue depends on the totality of the circumstances presented. !d. at 802.
The evidence at trial, construed most strongly in the State's favor, is sufficient
to support a holding that both Nelson and Davis had actual control over and
constructively possessed the stolen gun. When Clemmons arrived at Nelson's home,
he had a bleeding gunshot wound and lay down on the living room floor. Nelson
provided some alcohol or peroxide, and another person, not Davis or Nelson, helped
Clemmons clean and treat the wound. Clemmons also changed his shirt. In the
meantime, Nelson retrieved a shopping bag and put the stolen gun inside it.
Clemmons was at Nelson's home for about 15 minutes. Just before leaving,
Clemmons asked Davis, "'Where's the gun?"' or "'Where is the gun at?"' 14
Verbatim Report of Proceedings at 1555. Davis responded, "'It's in the bag."' !d.
Davis then handed Clemmons the bag on the counter containing clothes and the
stolen gun.
In light of the totality of the circumstances and our deferential standard of
review, the State presented sufficient evidence to support a finding that Clemmons
temporarily relinquished control over the stolen gun to Davis and Nelson while his
wound was treated and he changed clothes. There was no testimony that Clemmons
6
State v. Davis & Nelson, No. 89448-5
made any specific requests or orders as to what should be done with the stolen gun
while he was at Nelson's home, and he did not even know where the gun was until
he was ready to leave about 15 minutes later. It is reasonable to infer that someone
else decided what to do with the gun and that the decision-makers were Nelson and
Davis because Nelson retrieved the shopping bag and put the gun inside it and Davis
immediately responded when Clemmons asked where the gun was. Furthermore,
both Nelson and Davis retained the ability to take further actions as to the gun until
the time Davis gave it back to Clemmons because they knew where it was and
Clemmons did not. That is actual control sufficient to establish constructive
possession. 4 We would affirm Davis' conviction for second degree unlawful
possession of a firearm and Davis' and Nelson's convictions for possession of a
stolen firearm.
II. Davis' and Nelson's exceptional sentences are not legally justified
Davis and Nelson were given exceptional sentences for their rendering
criminal assistance convictions based on the aggravating factor, found by the jury,
that those crimes "involved a destructive and foreseeable impact on persons other
than the victim." RCW 9.94A.535(3)(r). Exceptional sentences are intended to
impose additional punishment where the particular offense at issue causes more
4
We need not decide whether Nelson or Davis also had actual possession of the stolen gun,
but we note that is a closer question because the evidence does not indicate that either Nelson or
Davis physically handled the gun for more than a brief moment.
7
State v. Davis & Nelson, No. 89448-5
damage than that contemplated by the statute defining the offense. In that situation,
the standard penalty for the offense is insufficient and an exceptional sentence based
on a statutory aggravating factor found by the jury remedies that insufficiency. State
v. Stubbs, 170 Wn.2d 117, 124-25, 240 P.3d 143 (2010); RCW 9.94A.535. We
review the meaning and applicability of a statutory aggravating factor as a matter of
law. Stubbs, 170 Wn.2d at 123-24; RCW 9.94A.585(4)(a). We hold that the
aggravating factor at issue cannot apply to rendering criminal assistance, so the
exceptional sentences imposed on Davis and Nelson are not legally justified.
A. The general public is the victim of the crime of rendering criminal
assistance
The State alleged and the jury found that Davis' and Nelson's rendering
criminal assistance to Clemmons "involved a destructive and foreseeable impact on
persons other than the victim." RCW 9.94A.535(3)(r). The State argues those other
persons are the families of the police officers Clemmons killed. To determine
whether this aggravating factor applies, we first consider who the victim of rendering
criminal assistance is, and we begin with the statute defining the offense:
[A] person "renders criminal assistance" if, with intent to prevent,
hinder, or delay the apprehension or prosecution of another person who
he or she knows has committed a crime ... he or she:
( 1) Harbors or conceals such person; or
(2) Warns such person of impending discovery or apprehension;
or
(3) Provides such person with money, transportation, disguise, or
other means of avoiding discovery or apprehension; or
8
State v. Davis & Nelson, No. 89448-5
(4) Prevents or obstructs, by use of force, deception, or threat,
anyone from performing an act that might aid in the discovery or
apprehension of such person; or
(5) Conceals, alters, or destroys any physical evidence that might
aid in the discovery or apprehension of such person; or
(6) Provides such person with a weapon.
RCW 9A.76.050. The degree of the offense depends on the underlying crime. RCW
9A.76.070(1), .080(1), .090(1).
Based on this plain language, rendering criminal assistance arises from actions
intended to help an offender escape apprehension or prosecution and not from
actions intended to cause or actually causing direct injury 5 to any person. Only one
of the alternative means by which one can render criminal assistance, RCW
9A.76.050( 4), even contemplates actions taken against a third party, and the harm
contemplated by the statute is still the harm created by helping the offender, not by
harming the third party. Clearly, rendering criminal assistance is a crime because it
undermines the ability of the government to perform its duties to apprehend and
prosecute offenders. The government cannot be the victim of rendering criminal
assistance because it apprehends and prosecutes offenders not on its own behalf, but
for the sole benefit of the people. WASH. CONST. art. I,§ 1. There is no other possible
5For purposes of the Sentencing Reform Act of 1981, chapter 9.94A RCW, the term
"'[v]ictim"' is defined as "any person who has sustained emotional, psychological, physical, or
financial injury to person or property as a direct result of the crime charged," RCW 9.94A.030(53),
"[u]nless the context clearly requires otherwise," RCW 9.94A.030. In the context of RCW
9.94A.535(3)(r), the standard definition makes clear sense-the victim of the offense is injured as
a direct result of the crime, while persons other than the victim suffer a destructive impact caused
by the crime in an indirect but foreseeable way.
9
State v. Davis & Nelson, No. 89448-5
particular victim based on the plain language of the statute. We hold that the victim
of rendering criminal assistance is the general public.
B. RCW 9.94A.525(3)(r) does not apply to the crime of rendering criminal
assistance as a matter of law
RCW 9.94A.535(3)(r) applies where there is "a destructive and foreseeable
impact on persons other than the victim." (Emphasis added.) Because rendering
criminal assistance victimizes the general public, every member of the public is part
of the victim class. There is no "other."
The State would have us hold that for crimes whose victim is the general
public, RCW 9.94A.535(3)(r)'s reference to "other than the victim" actually refers
to a particular person within the community or to a particular segment of the general
public. The statute simply does not say that. While this court has issued opinions
discussing "community impact" on a particular segment of the general public as an
aggravating factor, those opinions predate RCW 9.94A.535(3)(r). State v. Jackson,
150 Wn.2d 251,274, 76 P.3d 217 (2003); State v. Johnson, 124 Wn.2d 57,73-76,
873 P.2d 514 (1994). If the legislature had intended RCW 9.94A.535(3)(r) to apply
wherever the impact of an offense is unusually substantial as to a particular portion
of the general public, it could have referenced the general public or the community
in the statutory language. It did not. We also note that our opinions in Jackson and
Johnson involved offenses with clear, particular victims or intended victims-first
10
State v. Davis & Nelson, No. 89448-5
degree murder and assault in the course of a drive-by shooting, respectively-and
so are materially distinguishable anyway.
The State contends that because every criminal offense is an offense against
the general public, the approach we adopt today would mean RCW 9.94A.535(3)(r)
could never apply to any crime. It is true that what makes a wrongful act criminal,
rather than merely tortious, is the legislature's determination that the act is injurious
to the public as a whole. E.g., 22 C.J.S. Criminal Law § 2 (2006). That does not
mean we must ignore the obvious fact that some criminal offenses have particular
victims, while others do not-rendering criminal assistance does not.
Finally, the State argues that in setting the standard range sentence for first
degree rendering of criminal assistance, the legislature contemplated one murder,
not four, and that "[t]he murder of a law enforcement officer has a greater
detrimental impact on the public's sense of security" than would the murder of a
civilian. Suppl. Br. ofResp't at 23. Those arguments might have force as applied to
other statutory aggravating factors or aggravating factors the legislature might
consider enacting, but they have no relevance to the aggravating factor at issue here.
We will not affirm an exceptional sentence unless it is legally justified by the
aggravating factor actually charged and found by the jury.
11
State v. Davis & Nelson, No. 89448-5
CONCLUSION
We would hold that the State introduced sufficient evidence at trial to support
Davis' and Nelson's convictions for possession of a stolen firearm and Davis'
conviction for second degree unlawful possession of a firearm, but that is not the
decision of the court. We do hold the aggravating factor in RCW 9.94A.535(3)(r)
cannot justify an exceptional sentence for rendering criminal assistance as a matter
oflaw. The result of the three opinions of the court is to reverse the Court of Appeals
and remand for further proceedings.
12
State v. Davis & Nelson, No. 89448-5
WE CONCUR:
v
13
State v. Davis (Eddie) & Nelson (Letrecia), 89448-5
Wiggins, J. (concurring in part, dissenting in part)
No. 89448-5
WIGGINS, J. (concurring in part, dissenting in part)-1 concur in the majority
opinion only as to the holding that the exceptional sentences imposed for Eddie
Davis's and Letricia Nelson's convictions for rendering criminal assistance are not
legally justified.
I concur in the dissent to the extent that it would hold that the evidence was
insufficient to sustain Davis's and Nelson's firearm possession convictions.
I would reverse the Court of Appeals on both issues and remand for
resentencing.
~,C·9·
State v. Davis (Eddie) and Nelson (Letricia)
No. 89448-5
STEPHENS, J. (dissenting)-! disagree with the lead opinion's resolution of
both issues before the court. I would reverse Eddie Davis's and Letricia Nelson's
firearm possession convictions because the evidence does .not show they actually or
constructively possessed the weapon that Maurice Clemmons brought into Nelson's
home. At most, they had a "passing control," which is insufficient under our
precedent. As to their convictions for rendering criminal assistance, the sentencing
court properly imposed exceptional sentences based on the jury's finding that the
offense had a destructive and foreseeable impact on identifiable individuals, which
was greater than the impact on society as a whole. For these reasons, I respectfully
dissent.
I. Sufficient Evidence Does Not Support Nelson's and Davis's Convictions
for Constructive or Actual PossessiOn
The lead opinion finds Davis and Nelson had constructive possession of
Clemmons's gun and so does not reach the issue of actual possession. Lead opinion
State v. Davis (Eddie) & Nelson (Letricia), 89448-5 (Stephens, J. Dissenting)
at 7 n.4. Evidence sufficiently supports a "finding of guilt if, after viewing the
evidence in the light most favorable to the State, a rational trier of fact could find the
essential elements of the crime beyond a reasonable doubt." State v. Rose, 175
Wn.2d 10, 14, 282 P.3d 1087 (2012). Taking the evidence in a light most favorable
to the State and admitting all reasonable inferences, I do not think a properly
instructed jury could find either constructive or actual possession in this case.
A. Constructive Possession
To determine constructive possession a court examines whether, under the
totality of the circumstances, the defendant exercised dominion and control over the
item in question. State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977),
overruled on other grounds by State v. Lyons, 174 Wn.2d 354,275 P.3d 314 (2012).
While the ability to immediately take actual possession of an item can establish
dominion and control, mere proximity to the item by itself cannot. Cf State v. Jones,
146 Wn.2d 328, 333, 45 P.3d 1062 (2002); State v. Spruell, 57 Wn. App. 383, 387,
788 P.2d 21 (1990). Factors supporting dominion and control include ownership of
the item and, in some circumstances, ownership of the premises. But, having
dominion and control over the premises containing the item does not, by itself, prove
constructive possession. State v. Tadeo-Mares, 86 Wn. App. 813, 816,939 P.2d 220
(1997).
Partin provides an example of sufficient indicia of premises control. In Partin
the defendant regularly parked his motorcycle on the premises, received phone calls
-2-
State v. Davis (Eddie) & Nelson (Letricia), 89448-5 (Stephens, J. Dissenting)
there, stored personal documents and effects on the premises, and acted as vice
president of a club operating on the premises. 88 Wn.2d at 907. These facts showed
that the defendant exercised dominion and control over the premises and therefore
constructively possessed drugs found on the premises. See also State v. Echeverria,
85 Wn. App. 777, 784, 934 P.2d 1214 (1997) (holding the defendant constructively
possessed a gun under his car seat with the barrel visible but did not constructively
possess a throwing star completely concealed by the seat).
State v. Callahan, on the other hand, provides an example of insufficient
evidence to support constructive possession. 77 Wn.2d 27, 459 P.2d 400 (1969). In
that case, the defendant was temporarily residing on a houseboat, was in close
proximity to the drugs, and admitted to handling the drugs momentarily. !d. at 31.
We held that there must be substantial evidence to show dominion and control in
order to find constructive possession; we found the defendant's mere proximity to
and momentary handling of the drugs was not sufficient to establish dominion and
control. Id. at 29; see also Spruell, 57 Wn. App. at 388; State v. Mathews, 4 Wn.
App. 653, 656,484 P.2d 942 (1971).
In this case, no evidence showed that Davis or Nelson exercised sufficient
control over the gun. The Court of Appeals reasoned that they constructively
possessed the gun by placing it in a shopping bag and by carrying the bag containing
the gun from the kitchen to the living room and handing it to Clemmons. The lead
opinion echoes this mistaken understanding of constructive possession and conflates
-3-
State v. Davis (Eddie) & Nelson (Letricia), 89448-5 (Stephens, J. Dissenting)
actual possession with constructive possession. The situation here more closely
resembles the lack of dominion and control we addressed in Callahan because
neither Davis nor Nelson asserted any interest in the gun. Instead, they briefly
handled the item for Clemmons, the true possessor of the gun.
The lead opinion relies heavily on the fact that Clemmons asked where the
gun was. It reasons that because Davis and Nelson could have taken "further actions
as to the gun," they therefore had actual control, while Clemmons did not. Lead
opinion at 7. I disagree. While the State is entitled to all favorable inferences, we
are not required to ignore unfavorable facts. Clemmons arrived at Nelson's home in
an atmosphere of chaos-covered in blood, pounding on doors and windows,
making demands for assistance, and admitting to killing four armed police officers.
The evidence at trial revealed Clemmons's tendency to be "in control of his family
members" and others, 6 Verbatim Report of Proceedings (VRP) (Nov. 9, 2010) at
372, along with his reputation of being "intimidating." 12 VRP (Nov. 22, 2010) at
1424. The question of whether Davis and Nelson exercised dominion and control
over the gun must be considered in this context.
The jury's deliberations are not entirely opaque in this case. The jury
submitted a question to the court, asking, "'Does being in the same room with an
item equate to the immediate ability to take that item?"' 17 VRP (Dec. 6, 2010) at
1910. It was told to reread the instructions, which arguably allowed the jury to
conclude that the defendants' mere presence in a room with the gun constituted
-4-
State v. Davis (Eddie) & Nelson (Letricia), 89448-5 (Stephens, J. Dissenting)
actual control over the gun and therefore Davis and Nelson constructively possessed
it.
Washington's civil forfeiture statute provides a useful comparison. RCW
69.50.505. 1 There could be no argument that these facts would authorize civil
forfeiture of Nelson's house if we replaced "stolen gun" in this case with "drugs."2
Under that statute, the State could not seize the house because subsection (1 )(h)(i)
provides that property may not be forfeited by reason of any act committed without
the owner's knowledge or consent. There is no evidence that Nelson consented to
Clemmons bringing the gun into her home. The State must also prove a "substantial
nexus exists between commercial production or sale of the controlled substance and
the real property." RCW 69.50.505(1)(h). No nexus between Nelson's house and
the stolen firearm existed here. This comparison reveals that the State could not
seize Nelson's home under these facts, even stretching them in the State's favor.
There is no indication that the legislature intended to make it easier to prosecute
individuals criminally for conduct that does not even establish a civil claim.
I would hold that the evidence is insufficient to establish constructive
possession of the firearm by Davis or Nelson.
1
RCW 69.50.505 allows certain property to be subject to seizure and forfeiture.
Subsection (l)(h) provides that real property may be seized that is being used with the
lmowledge of the owner for any process involving the manufacture and distribution of any
controlled substance.
2
I use drugs as an example because it applies to real property. RCW 10.105.010-
which forfeits property used to aid or abet in the commission of a felony-applies only to
personal property, not real property.
-5-
State v. Davis (Eddie) & Nelson (Letricia), 89448-5 (Stephens, J. Dissenting)
B. Actual Possession
Actual possession means physical custody of an item but does not include
"passing control which is only a momentary handling." 3 Callahan, 77 Wn.2d at 29.
The lead opinion concedes there is no evidence that either Davis or Nelson "handled
the gun for more than a brief moment." Lead opinion at 7 n.4. Accordingly,
Callahan should be controlling. The holding in State v. Staley, 123 Wn.2d 794, 872
P.2d 502 (1994), does not, as the Court of Appeals implied, "clarifl:y]" Callahan out
of existence. State v. Davis, 176 Wn. App. 849,864,315 P.3d 1105 (2013). More
accurately, Staley clarifies that when considering "momentary handling" during an
actual possession inquiry, the quality of the control matters more than the duration
of the control. Staley, 123 Wn.2d at 801; see State v. Summers, 107 Wn. App. 373,
386,28 P.3d 780 (2001). Callahan remains controlling authority for the proposition
that a defendant's handling of contraband shows only momentary or passing control,
which is insufficient to prove actual possession. Furthermore, Callahan notes that
consideration should be given to the ownership of the item, as ownership can carry
the right of dominion and control with it-in this case, Clemmons was the true
possessor, or "owner," of the gun. 77 Wn.2d at 31.
Under our precedent, Davis and Nelson had only passing possession of
Clemmons's firearm. The evidence shows that Nelson put the gun into a shopping
bag on the counter and Davis later handed the bag to Clemmons. Clemmons
3
"Passing" is "the act of one that passes" or "having a brief duration." WEBSTER'S
THIRD NEW INTERNATIONAL DICTIONARY 1651 (2002).
-6-
State v. Davis (Eddie) & Nelson (Letricia), 89448-5 (Stephens, J. Dissenting)
remained on the premises the entire time and immediately after cleaning his gunshot
wounds and changing his shirt demanded his gun.
I would reverse the Court of Appeals and find the evidence was insufficient
to prove actual or constructive possession of the firearm by either Nelson or Davis.
Accordingly, I would reverse the convictions containing possession as an element.
II. The Destructive Impact Aggravator Properly Applies to the Sentences for
Rendering Criminal Assistance
The trial court imposed exceptional sentences on both petitioners' convictions
for rendering criminal assistance under RCW 9.94A.535(3)(r). This statute
authorizes the imposition of an exceptional sentence for an offense that "involved a
destructive and foreseeable impact on persons other than the victim." !d. RCW
9.94A.535(3) provides an exclusive list of aggravators that the jury may find,
including the destructive impact aggravator. The application of this specific
aggravator partially depends on whether rendering criminal assistance victimizes the
general public and whether particularized harm suffered by identifiable individuals
can justify the aggravator as applied to rendering. The lead opinion reasons that
because rendering criminal assistance victimizes the general public, which includes
everyone, the destructive impact aggravator can never apply to rendering
convictions because no one is "'other than"' everyone. Lead opinion at 10 (emphasis
omitted) (quoting RCW 9.94A.535(3)(r)). I would find that context requires the
word "victim" in the aggravator statute to mean something different from the general
-7-
State v. Davis (Eddie) & Nelson (Letricia), 89448-5 (Stephens, J. Dissenting)
definition in the Sentencing Reform Act of 1981 (SRA), as codified in RCW
9.94A.030.
For RCW 9.94A.535(3) to apply, the defendant's actions must impact persons
other than the victim in a manner distinct from the normal impact of the crime. State
v. Chanthabouly, 164 Wn. App. 104, 143-44, 262 P.3d 144 (2011). Here, a rational
trier of fact could find sufficient evidence to impose the sentencing aggravator based
on a destructive and foreseeable impact on the officers' families.
We recently construed the term "victim" for purposes of the SRA in State v.
Sweat, 180 Wn.2d 156, 322 P.3d 1213 (2014). RCW 9.94A.030(53) defines a
"victim" as "any person who has sustained emotional, psychological, physical, or
financial injury ... as a direct result of the crime charged." In Sweat we held that
context may require using a broader meaning for the word "victim" than the general
term provided in RCW 9.94A.030(53). Id. at 160. Such is the case here. The lead
opinion places too much weight on the fact that rendering criminal assistance arises
from actions that are not "intended to cause or actually causing direct injury to any
person." Lead opinion at 9 (footnote omitted). This does not make rendering
criminal assistance unique. We have recognized that the general public is a victim
of every crime. State v. Haddock, 141 Wn.2d 103, 111,3 P.3d 733 (2000); lead
opinion at 9. Because a broad definition of "victim" under this aggravator would
include everyone, the legislature could not have intended for that broad definition of
"victim" to control. Otherwise, the aggravator would never apply.
-8-
State v. Davis (Eddie) & Nelson (Letricia), 89448-5 (Stephens, J. Dissenting)
We should not read a statute in a way that renders any portion meaningless or
superfluous. State v. K.L.B., 180 Wn.2d 735,742, 328 P.3d 886 (2014). Instead, we
should read the phrase "persons other than the victim" as meaning those who suffer
particularized harm from crimes that victimize the general public. RCW
9.94A.535(3)(r). The Court of Appeals held that while rendering criminal assistance
does victimize the general public, the aggravator still applies where "the evidence
demonstrates a destructive and foreseeable impact on a specific individual or entity."
Davis, 176 Wn. App. at 876. The court rejected the proposition that rendering
victimizes only the general public based on the definitions of "victim" in the SRA
and "person" in the dictionary. The court determined that the word "person"
indicates a linguistic distinction between individuals and the mass of society. !d. at
875-76. Under the definitions of both "victim" and "person," application of the
aggravator is appropriate when there is a distinct destructive impact on persons other
than society as a whole. At trial, the State offered evidence that the families of the
involved police officers suffered intense fear that Clemmons would target them next.
Because the jury could identify the individual family members and the destructive
impact they felt, the aggravator applies.
The court's conclusion in Haddock-that unlawful possession of a firearm
victimizes the general public-does not conflict with the Court of Appeals opinion
in this case. 141 Wn.2d at 110-11. 4 The same principle guided the Haddock court
4
Haddock considered whether unlawful possession of a firearm and possession of
a stolen firearm constitute the same criminal conduct for purposes of calculating an
-9-
State v. Davis (Eddie) & Nelson (Letricia), 89448-5 (Stephens, J. Dissenting)
and the Court of Appeals here. While all crimes victimize the general public, certain
crimes "directly inflict[] specific injury on individuals, of the sort described in the
[SRA]." Id. at 111-12. Rendering criminal assistance inflicts harm on both the
general public and law enforcement, whose efforts to detain and prosecute offenders
are delayed.
Because the jury found that the officers' families suffered additional harm
beyond what the general public suffered, the aggravator is legally and factually
applicable to Davis's and Nelson's convictions for rendering criminal assistance,
and the sentencing court properly considered it. I would affirm the sentences for
rendering criminal assistance.
CONCLUSION
Davis's and Nelson's convictions based on possession of a firearm cannot
stand, as the evidence does not sustain a finding of actual or constructive possession.
I would reverse that portion of the Court of Appeals decision upholding those
convictions. I would affirm the portion of the Court of Appeals decision correctly
applying the destructive impact aggravator. Where identifiable individuals suffer
foreseeable harm beyond what the general public suffers as a result of rendering
criminal assistance, the aggravator should apply.
For these reasons, I respectfully dissent.
offender score. See RCW 9.94A.589(1)(a); State v. Garza-Villarreal, 123 Wn.2d 42, 47,
864 P.2d 1378 (1993) (the victim of unlawful possession of a controlled substance is the
general public).
-10-
State v. Davis (Eddie) & Nelson (Letricia), 89448-5 (Stephens, J. Dissenting)
-11-
State v. Davis
Combined Opinion