State v. Davis ( 2014 )


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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-