STATE of Washington, Respondent.
Eddie DAVIS, Appellant. State of Washington, Respondent,
Douglas Davis, Appellant. State of Washington, Respondent,
Letricia Nelson, Appellant.
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Stephanie C. Cunningham, Attorney at Law, Jennifer M. Winkler, Nielson, Broman & Koch, PLLC, Kathryn A. Russell Selk, Russell Selk Law Office, Eric Nielson, Nielson, Broman & Koch, PLLC, Seattle, WA, for Appellants.
Kathleen Proctor, Pierce County Prosecuting Atty. Ofc., Tacoma, WA, for Respondent.
[176 Wn.App. 855] ¶ 1 Eddie Davis appeals from his jury convictions for first degree rendering criminal assistance, [176 Wn.App. 856] 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 stolen firearm convictions; (2) their exceptional sentences lack both a legal and factual basis; and (3) the trial court erred when it failed to note in a written order or on their judgments that certain counts against them had been dismissed. In his RAP 10.10 statement of additional grounds, Douglas  also contends that the trial court's unanimity instruction regarding the special verdict forms erroneously informed the jury of the law.
¶ 2 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 9.94A.535(3)(r) for Eddie's and Nelson's rendering 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 9.94A.535(3)(r) to 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) the law enforcement victim aggravating factor under RCW 9.94A.535(3)(v) is legally inapplicable to Eddie's and Nelson's convictions 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 [176 Wn.App. 857] aggravating factor applied to Eddie's and Nelson's convictions for possession of a stolen firearm; (7) the appellants did not demonstrate any error in their judgments regarding dismissed or consolidated counts; and (8) the trial court's unanimity instruction was not erroneous.
¶ 3 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.
¶ 4 On the morning of Sunday, November 29, 2009, just before 8:00 AM, City of Lakewood 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.
¶ 5 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.
¶ 6 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 [176 Wn.App. 858] 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 " [c]ome on" and they drove to a house in Auburn, a trip taking about 30 minutes. 10 Report of Proceedings (RP) at 1084, 1087. The evidence indicates that at 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 " pretty sure" Clemmons took the gun with him when he left. 10 RP at 1086. Clemmons also " took a bag with his clothes in it" and " had different clothes on" when he left the Auburn house. 10 RP at 1110. Clemmons told Douglas to follow him, so Douglas followed him to a Discount Tire location and an apartment, where Clemmons left with a young woman.
¶ 7 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.
¶ 8 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 [176 Wn.App. 859] City of Tacoma detective multiple times, including at Nelson's residence. According to the detective, Nelson's residence was " fairly small" with a " fairly open floor plan" between the kitchen and living room. Cicely also testified at trial. 6 RP at 493.
¶ 9 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 " tie it tight." 6 RP at 308.
¶ 10 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 " Quiana" whom he told to meet Clemmons at the SuperMall.
¶ 11 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.
¶ 12 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 home, Nelson gave Clemmons some clothing and peroxide at his request, but did not treat his wound. [176 Wn.App. 860] 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.
¶ 13 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.
¶ 14 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 (except for Nelson), and one count of possession of a stolen firearm.
¶ 15 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.
¶ 16 Eddie, Douglas, and Nelson appeal.
I. SUFFICIENCY OF THE EVIDENCE SUPPORTING FIREARM POSSESSION
¶ 17 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 [176 Wn.App. 861] 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.
¶ 18 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 Wash.2d 192, 201, 829 P.2d 1068 (1992). 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 Wash.2d 1, 8, 133 P.3d 936 (2006). On appeal, we draw all reasonable inferences from the evidence in favor of the State and interpret them most strongly against the defendant. Hosier, 157 Wash.2d at 8, 133 P.3d 936. In the sufficiency context, we consider circumstantial evidence as probative as direct evidence. State v. Goodman, 150 Wash.2d 774, 781, 83 P.3d 410 (2004). We may infer specific criminal intent of the accused from conduct that plainly indicates such intent as a matter of logical probability. Goodman, 150 Wash.2d at 781, 83 P.3d 410. We defer to the fact finder on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v. Thomas, 150 Wash.2d 821, 874-75, 83 P.3d 970 (2004), abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
¶ 19 A person commits first degree unlawful possession of a firearm when " the person owns, has in his or her possession, or has in his or her control any firearm after having
previously been convicted ... of any serious offense [176 Wn.App. 862] as defined in this chapter." RCW 9.41.040(1)(a). A person commits second degree unlawful possession of a firearm when the person " owns, has in his or her possession, or has in his or her control any firearm," under specified circumstances not including conviction of a serious offense. RCW 9.41.040(2)(a).
¶ 20 A person commits possession of a stolen firearm when " he or she possesses, carries, delivers, sells, or is in control of a stolen firearm." RCW 9A.56.310(1). The statute defines " 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.56.140(1). This definition applies to the crime of possession of a stolen firearm. RCW 9A.56.310(4).
¶ 21 Possession may be actual or constructive. State v. Callahan, 77 Wash.2d 27, 29, 459 P.2d 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 Wash.2d 328, 333, 45 P.3d 1062 (2002). Dominion and control over an object " means that the object may be reduced to actual possession immediately," Jones, 146 Wash.2d at 333, 45 P.3d 1062, but dominion and control need not be exclusive. State v. Cote, 123 Wash.App. 546, 549, 96 P.3d 410 (2004). Mere proximity, however, is not enough to establish possession. Jones, 146 Wash.2d at 333, 45 P.3d 1062.
¶ 22 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 Wash.App. 222, 227, 889 P.2d 956 (1995); see also State v. Mathews, 4 Wash.App. 653, 656, 484 P.2d 942 (1971). [176 Wn.App. 863] Dominion and control over premises raises a rebuttable presumption of dominion and control over objects in the premises. State v. Cantabrana, 83 Wash.App. 204, 208, 921 P.2d 572 (1996); State v. Tadeo-Mares, 86 Wash.App. 813, 816, 939 P.2d 220 (1997). A vehicle is considered a type of premises for purposes of determining constructive possession. State v. Turner, 103 Wash.App. 515, 521, 13 P.3d 234 (2000).
¶ 23 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 Wash.2d 899, 906, 567 P.2d 1136 (1977); Callahan, 77 Wash.2d at 31, 459 P.2d 400; State v. Wilson, 20 Wash.App. 592, 596, 581 P.2d 592 (1978). The cumulative effect of a number of these factors strongly indicates dominion and control, and, thus, constructive possession. Partin, 88 Wash.2d at 906, 567 P.2d 1136.
1. Nelson's Possession of a Stolen Firearm
¶ 24 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 (Nelson) at 7-11.
¶ 25 The Callahan court held that the evidence before it was insufficient to establish actual possession of drugs, stating
[t]here was no evidence introduced that the defendant was in physical possession of the drugs other than his close proximity [176 Wn.App. 864] 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 Wash.2d at 29, 459 P.2d 400 (emphasis added). The court also held that the evidence was 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 Wash.2d at 31-32, 459 P.2d 400.
¶ 26 Subsequently, our Supreme Court clarified the Callahan court's reference to " passing 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 Wash.2d 794, 802, 872 P.2d 502 (1994) (emphasis added).
¶ 27 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 Wash.App. at 208, 921 P.2d 572. 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 Wash.2d at 333, 45 P.3d 1062. In addition, she stowed and made the firearm available for 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 [176 Wn.App. 865] actual possession of the firearm, reading Callahan and Staley together.
¶ 28 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 Wash.App. 373, 386-87, 28 P.3d 780, 43 P.3d 526 (2001), we held that " evidence of momentary handling, when combined with other evidence, 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 Wash.2d at 802, 872 P.2d 502. As noted, Nelson's 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, ...