                                                                                                        FILED
                                                                                              COURT OF APPEALS
      IN THE COURT OF APPEALS OF THE STATE OF W                                                        giMaTTON

                                                         DIVISION II
                                                                                             2014 DEC -- 2 AN 9: 00

STATE OF WASHINGTON,
                                                                                          NoST




                                                                                                    6Rf8-   f'SHIUGTON
                                                                                             BY
                                            Respondent,                                                 E UTY


         v.



WESTON GARRETT MILLER,                                                            UNPUBLISHED OPINION

                                            Appellant.


         MELNICK, J. —            Weston Miller appeals from his jury conviction for murder in the first

degree. He asserts that insufficient evidence existed to find that he acted with premeditation and

that a violation of his constitutional and fair trial rights occurred because some of the jurors

could not      see    him   where      he   sat   at   the   counsel   table.    In his statement of additional grounds


 SAG),    Miller asserts that the trial court erred by excluding evidence of the amount of

methamphetamine in the victim' s system, evidence of the victim' s bad character, and evidence

of   Miller'   s   good character.          He also argues the trial court erred by admitting evidence of a

makeshift silencer          that Miller      possessed.        We hold that there was sufficient evidence to convict


Miller   and       that Miller'   s   constitutional         claims   lack any   support   in the   record.   We also reject


Miller' s SAG claims. We affirm the trial court.


                                                                 FACTS


         Sara DeSalvo          and     David Carson lived together               with   Miller in his home.     DeSalvo and


Carson                                 but Carson                                       violent with   DeSalvo.   Other than
          frequently        argued,                      was never      physically


DeSalvo, Carson rarely had disagreements                        with other people.       DeSalvo testified that Carson had


a soft- spoken and quiet          demeanor.
44966 -8 -II



         Miller       confronted       DeSalvo       about   her fights         with     Carson.      DeSalvo testified about the


exchange that followed:


          Miller] told         me    that —he goes, "       Why don'       t   you   just   shoot [   Carson]?"       I   said, "   What the

         hell   you     coming in here in the           middle of          my    day talking        shit   like that ?" I    said, "   Don' t
         come        in here   and    do that Weston. Are              you     crazy ?" He       goes, "    I'll do it for    you."     I go,

            You will do nothing for anybody."

Report    of   Proceedings ( RP) (           May     7, 2012)     at   235 (     emphasis       added).       The same day, Carson

asked    Miller, " Dude, did            you   say    you were      going to          shoot me ?"           RP ( May 7, 2012) at 236

 internal     quotation marks omitted).                Miller   responded, "          Yeah, so, it' s not like we are friends."

RP ( May 7, 2012) at 236 ( internal quotation marks omitted).

          Two days later, DeSalvo and Carson were preparing to move out of Miller' s house when

they began      to    argue.      At one point, DeSalvo hit her head on something and screamed for Miller.

Miller knocked          on   the door and        asked      DeSalvo        and    Carson      not   to fight.       Miller reiterated his


request 15 to 20 minutes later.

          Miller then         went    to his bedroom,         opened a           safe,   and retrieved        his   gun.     He loaded it,


chambered        a round, and concealed               the   gun    in his      pocket.       He then knocked on DeSalvo and


Carson'   s    door   and asked       Carson to      come out and          talk.      Carson complied and stepped out of the


room.       Carson      was    neither    angry      nor    was    he carrying any             weapon.         Carson complied with


Miller' s     request      that he   close    the door.      DeSalvo then heard three                 rapid gunshots.          She opened


the door to      see a puff of smoke and smell gunpowder.                             Carson, while holding his stomach, said

  Dude,     what     did    you   do?    You    shot me."         RP ( May 7, 2013) at 253 ( internal quotation marks

 omitted).      Carson subsequently died from the shooting.

          DeSalvo begged Miller                not   to kill her.       She fled the house, screaming for                     help.    Miller


 fled in his truck. After getting              help,   DeSalvo         returned       to the house.         The police arrived shortly

 thereafter. DeSalvo did not touch Carson or move any items.


                                                                       2
44966 -8 - II



         Upon his    arrest,    Miller      cooperated with        the    police and gave a video    statement.   Miller


admitted   to shooting Carson.              Miller said that he feared for DeSalvo because Carson was an


unstable and     dangerous      person.      Miller also claimed he feared for himself because DeSalvo and


Carson   were    conspiring to kill him.               Miller gave different accounts of what happened when he


opened    the door to DeSalvo          and    Carson'       s room.    At first, Miller said that Carson was holding

DeSalvo between himself and the door, and that he pushed DeSalvo out of the way to get inside

and confront     Carson.      Later, Miller said that the moment he opened the door, Carson lunged at

him with a knife, and Miller opened fire.

         While there was at least one knife inside the room, none of the responding officers or

paramedics      located   a   knife in Carson' s hands           or near    his   body. The medical examiner did not

find any defensive injuries           on    Carson'     s   body. A ballistics expert concluded from the gunshot

residue that Carson was shot from no more than five feet away.

                                                  PROCEDURAL HISTORY


         The State charged Miller with degree murder in the first degree with a firearm

enhancement,'      and four counts of unlawful possession of a firearm in the second degree.2 Miller

pleaded guilty to the firearm charges.

         At trial, Miller      argued      that   he   shot   Carson in        defense.
                                                                          self -          Miller did not testify. At one

point in the trial, Miller' s counsel complained that some of the jurors could not see the

proceedings, which the trial court addressed by admonishing the jury:

                   THE COURT: I have a belief that the jury is able to see and observe adequately
          the way they are sitting right now.
                   DEFENSE ATTORNEY]:                         Even though they say they can't.


1
    RCW 9A. 32. 030( 1)(      a);   RCW 9. 94A.825.


2 RCW 9.41. 040( 2)( a)( i).


                                                                   3
44966 -8 -II



               THE COURT: It isn't that they said they couldn't. One juror in particular the juror
        back in seat number 1 was complaining and we solved that by pushing the table forward.
        I' ll address it.
                     WHEREUPON THE JURY ENTERS THE COURTROOM.)
                THE COURT: Good morning, ladies and gentlemen. Please be seated. Yesterday
        an issue came up with apparently some of the jurors having a hard time seeing everything
        that's going on in the courtroom. I've had the defense table moved up, which should help
        the line of sight issues.   If any of you have a problem seeing or hearing during the
        proceedings,        let   me   know. One alternative that I do have that I've done before in some of
        these trials is I have moved the alternates down in front and moved everybody over one
        seat, but I would rather not do that if I don't have to, because it makes it a little crowded
        in here when I do it that way, so I would prefer that we just stay where we are as long as
        everybody can see.
                    Also, it has come to my attention that counsel has had some difficulty being heard
        by     the jurors. I' ve   spoken   to both   attorneys and suggested   that ...   they speak up.

RP (   May    8, 2013) at 291 -92 (       emphasis added).       The following day, Miller' s counsel reiterated

his objection, and the trial court reminded the jury to inform the court if they could not see or

hear:


                     DEFENSE ATTORNEY]:         We still have a continuing problem of configuration
         of     jury.
              the      Just for purposes of the record, from where we sit we cannot see at least two
         or three of the jurors. They cannot see us.
                    THE COURT: Well,            you   don' t know that. That's your speculation that they can't
         see you.

                     DEFENSE ATTORNEY]: Well, I can't see them and I can't see through Officer

         Hughes and I can't see through the bailiff. They are in direct line, so once again I make
         my request to have the alternates be placed outside.
                THE COURT: I inquired of the jury yesterday as to whether anybody was having
         a problem seeing or hearing with the defense table being where it is. None of the jurors
         indicated that they had a problem seeing or hearing the evidence, and here again the
         evidence      generally       comes   from the   witness   stand.   It may very well be that the jurors
         have an opportunity to view the parties at the counsel table, during the trial, but I'm not
         aware that being able to view the parties at counsel table is necessarily such a
         fundamental issue in a trial that I have to be concerned with the configuration of the jury.
                 The fact of the matter remains is that there are 14 chairs in the jury box in this
         particular courtroom and the 12 jurors are seated at one end and proceeding down the
         jury box with the alternates at the end and I'm not going to change that.
                     DEFENSE           ATTORNEY]: For the record.
                    THE COURT: Bring the jury in.
                     WHEREUPON THE JURY ENTERS THE COURTROOM.)



                                                             4
44966 -8 -II



                       THE COURT: Please be             seated.       Good morning.    Ladies and gentlemen, once,

              again; the issue has been brought to the Court's attention that some of you may have some
              difficulty in seeing what' s transpiring in the courtroom during the trial. As I mentioned
          yesterday, if any ofyou during the course of the presentation of the trial have difficulty
          either seeing or hearing what's going on, and I'm not aware and I don' t catch it, please
          by all means have a hand up and let me know if there' s an issue, because if there' s not, I
          presume all of you have an opportunity to observe and listen and pay attention to what's
          going on in the courtroom.

RP ( May 9, 2013)           at   452 -54 ( emphasis   added).   At no point on the record does any juror indicate

a problem seeing or hearing the proceedings.

              The jury returned a guilty verdict of murder in the first degree with a firearm

enhancement. Miller timely appealed.

                                                           ANALYSIS


I.            SUFFICIENCY OF THE EVIDENCE


              Miller   argues    that the State failed to   prove premeditated        intent to kill Carson.   We hold


that the State provided enough circumstantial evidence of premeditation to support Miller' s

conviction.




              A.       Standard of Review


              Evidence is sufficient to support a conviction if, viewed in the light most favorable to the

prosecution, it permits any rational trier of fact to find the essential elements beyond a reasonable

doubt.         State   v.   Aten, 130 Wn.2d 640, 666 -67, 927 P. 2d 210 ( 1996).                 Upon review of the


sufficiency of the evidence, we draw all reasonable inferences from the evidence in the State' s
favor. State v. Salinas, 119 Wn.2d 192, 201, 829' P. 2d 1068 ( 1992).                      Circumstantial evidence is


considered as reliable as             direct   evidence.   State v. Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99

     1980).    We will not review the jury' s determination of the credibility of a witness or evidence.




                                                                  5
44966 -8 -II




State   v.    Myers, 133 Wn.2d 26, 38, 941 P. 2d 1102 ( 1997).                          Rather, we treat all of the State' s


factual allegations and inferences as true. Salinas, 119 Wn.2d at 201.

             B.       Premeditated Intent


             Due process requires the State to prove all the necessary elements of the crime charged

beyond       a reasonable      doubt. U.S. CoNST.         amend.          XIV, § 1; CONST.     art.   1, §   22; In re Winship,

397 U. S. 358, 362 -65, 90 S. Ct. 1068, 25 L. Ed. 2d 368 ( 1970);                          State v. Colquitt, 133 Wn. App.

789, 796, 137 P. 3d 892 ( 2006).                 As charged, murder in the first degree has two elements:


 premeditated         intent to    cause   the death of   another person,"         and causing " the death of such person

or of a   third     person."      RCW 9A.32. 030( 1)( a).       Here, only premeditated intent is at issue.

             Premeditation is "       the deliberate formation of and reflection upon the intent to take a

human life"          and involves " thinking beforehand, deliberation, reflection, weighing or reasoning

for   a period of       time, however        short."    State   v.   Allen, 159 Wn. 2d 1,        7 -8, 147 P. 3d 581 ( 2006)


 quoting State         v.   Finch, 137 Wn. 2d 792, 831, 975 P. 2d 967 ( 1999)) ( internal quotation marks


omitted);         RCW 9A. 32. 020( 1).       Premeditation may be proven through circumstantial evidence so

long as " the inferences drawn by the jury are reasonable and the evidence supporting the jury' s
verdict      is   substantial."    State v. Bingham, 105 Wn.2& 820, 824, 719 P. 2d 109 ( 1986).


             A wide range of proven facts may support an inference of premeditation. State v. Gentry,

125 Wn.2d 570, 598, 888 P. 2d 1105 ( 1995).                     Generally, " any planning activity by the defendant

prior   to the      murder, which relates      to the   manner       in   which   the   murder was accomplished, can       be
44966 -8 -II



evidence of premeditation."                State    v.   Lindamood, 39 Wn.        App.   517, 521, 693 P. 2d 753 ( 1985).


For example, a defendant' s, affirmative act of retrieving a weapon from elsewhere may allow the

fact finder to infer premeditation. State v. Ortiz, 119 Wn.2d 294, 312 -13, 831 P. 2d 1060 ( 1992);

State v. Commodore, 38 Wn. App. 244, 248, 684 P. 2d 1364 ( 1984).

            Here,      the State presented substantial circumstantial evidence that Miller formed a

premeditated           intent to kill Carson.            Two days before shooting Carson, Miller stated he would

shoot Carson. On the day of the shooting, Miller went to his room, retrieved his gun from a safe,

loaded the        gun, and concealed          it.   Miller specifically asked Carson to exit the room and talk.

Miller then        shot   Carson.        Viewed in the light most favorable to the prosecution, the evidence


permitted        the   jury    to find   premeditation       beyond       a reasonable   doubt.   We hold that the State' s


evidence was sufficient to convict Miller of murder in the first degree, and we affirm the trial

court.



II.         JURY OBSTRUCTION


            Miller argues that his right to confrontation,3 his right to a fair and public trial,4 and, by

analogy, his right to assist his attorneys were violated because he and the jury could not see each
other.      We hold that the record fails to establish that the jurors could not see or observe Miller,

and we affirm the trial court.


            The trial court is generally in the best position to perceive and structure its own

proceedings,           meaning that the trial court has broad discretion to make trial management

decisions. State          v.   Dye, 178 Wn.2d 541, 547 -48, 309 P. 3d 1192 ( 2013).                 Courtroom procedures



3 U. S. CONST. amend. VI.

4
    U. S. CONST.        amend.    VI; WASH. CONST.           art.   I, §§ 10, 21, 22.

s
    State   v.   Marshall, 144 Wn.2d 266, 277, 27 P. 3d 192 ( 2001),                       overruled on other grounds by
State v. Sisouvanh, 175 Wn.2d 607, 290 P. 3d 942 ( 2012).


                                                                      7
44966 -8 - II




are reviewed for abuse of discretion, even if a court ruling allegedly violates fair trial rights.

Dye, 178 Wn.2d              at   548. Even if we disagree with the trial court, reversal is inappropriate unless


the    court' s   decision is "          manifestly unreasonable or based on untenable grounds or untenable

reasons."       Dye, 178 Wn.2d at 548 ( quoting In re Marriage of Littlefield, 133 Wn.2d 39, 46 -47,

940 P. 2d 1362 ( 1997)).

             By his own admission, Miller has no authority for his theory that a defendant has a

constitutional right to be seen at the counsel table or to observe the jury during trial. Nor could

we     find   any   such         authority    after a nationwide search of            federal   and state        authority.     However,


even    if Miller had            support     for his legal theory, the facts do          not support       his   argument. "     It is the


responsibility         of   the party alleging       error   to   create a record of     that   error."    Dye, 178 Wn.2d at 556.


Here, the       record      fails to     establish   that the     jury   could not see   Miller. On two separate occasions,


the trial court inquired whether the jurors were having difficulty seeing or hearing the

proceedings, and             instructed them to tell the            court   if they   were   having       such    difficulty.   No juror


did    so.    The trial court did not abuse its discretion by refusing to credit Miller' s speculation that

the jury was unable to see. We affirm the trial court.

III.          SAG GROUNDS


              Miller   raises      several     issues iri his SAG.          He argues that he shot Carson in lawful self -

                                                                                                                                        2)
defense. Miller             also raises      evidentiary issues in his SAG relating to ( 1) toxicology                    evidence; (




evidence of         Carson'        s   bad   character; (   3) evidence of Miller' s good character; and ( 4) admission


of a silencer.         Finally, Miller reiterates his insufficient evidence claim, which we have disposed
of above and will not address                   further.
44966 -8 - I1




           A.        Standard of Review


           We review a trial court' s evidentiary rulings for abuse of discretion. State v. McDonald,

138 Wn.2d 680, 693, 981                  P. 2d   443 ( 1999).   The same standard applies when we review the


admissibility      of expert evidence under           ER 702. State v. Copeland, 130 Wn.2d 244, 270 -71, 922


P. 2d 1304 ( 1996). A self -defense claim uses a separate standard, which is discussed below.


           B.        Self Defense
                          -


           Miller argues that he exercised lawful self -defense when he shot Carson. We disagree.

           The nature of Miller' s argument is not quite clear from the face of his SAG; he merely

recites   the    rule of   State   v.   Alleny, 101 Wn.2d 591, 682 P. 2d 312 ( 1984), without applying specific


facts   or     explaining how his trial           contravened   this   rule.     In any case, a careful review of the

instructions and the facts reveals no error.


               To be entitled to a jury instruction on self -defense, the defendant must produce some

evidence demonstrating self -defense; however, once the defendant produces some evidence, the

burden shifts to the prosecution to prove the absence of self -defense beyond a-reasonable doubt."

State     v.    Walden, 131 Wn.2d 469, 473, 932 P. 2d 1237 ( 1997).                        Furthermore, a self defense
                                                                                                               -


instruction      must " more       than adequately convey the          law             defense."
                                                                               of self -           State v. LeFaber, 128


Wn.2d 896, 900, 913 P. 2d 369 ( 1996),                   abrogated on other grounds by State v. ,O' Hara, 167

Wn.2d 91, 217 P. 3d 756 ( 2009).




                                                                 9
44966 -8 -II



        Here, the        jury   was   instructed            defense.
                                                    on self -            The self defense
                                                                                  -       instruction was patterned


on 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 16. 02, at

234 ( 3d ed. 2008), 6 which we have held is the appropriate self -defense instruction where the

defendant      uses a     deadly   weapon      to exert   deadly     force.    State v. Ferguson, 131 Wn. App. 855,

860, 129 P. 3d 856 ( 2006).             The jury instruction more than adequately conveyed the law of self -

defense. Assuming Miller intended to challenge the self -defense instruction, his challenge fails.

        We also hold that the evidence was sufficient for the jury to determine that Miller was not

acting in          defense.
              self -             See State    v.   McCreven, 170 Wn.          App.   444, 481, 284 P. 3d 793 ( 2012). As


discussed above, the State' s evidence was sufficient to establish that Miller shot Carson with

premeditation.           In contrast, no evidence supported Miller' s theory of self -defense, other than


6
        It is    a   defense to       a   charge    of [ murder] [    manslaughter] that the homicide was
        justifiable as defined in this instruction.


        Homicide is justifiable             when committed      in the lawful defense           of [the slayer] [   the

        slayer' s [      husband] [     wife] [ registered   domestic     partner] [ parent] [ child] [     brother]
            sister]] [   any person in the slayer's presence or company] when:

         1)    the   slayer     reasonably believed that the            person       slain [   or others whom the

         defendant reasonably believed were acting in concert with the person slain]
         intended [ to       commit a      felony] [ to inflict death or great personal injury];

         2) the slayer reasonably believed that there was imminent danger of such harm
         being accomplished; and

         3)the slayer employed such force and means as a reasonably prudent person
         would use under the same or similar conditions as they reasonably appeared to the
         slayer, taking into consideration all the facts and circumstances as they appeared
         to [ him] [ her],      at the time of [and prior to] the incident.

         The State has the burden of proving beyond a reasonable doubt that the homicide
         was not         justifiable.     If you find that the State has not proved the absence of this
         defense beyond a reasonable doubt, it will be your duty to return a verdict of not
         guilty.


Emphasis omitted.



                                                               10
44966 -8 -II




Miller' s own bare assertions. No knife was found in the vicinity of Carson' s body. Although he

was shot at very close range, no injuries were found on Carson' s body to indicate a struggle.

Finally, a rational jury could have chosen not to credit Miller' s account of the shooting because

he   provided    inconsistent      stories   to the     police.    In light of these facts, a rational jury could have

found beyond a reasonable doubt that Miller did not act in self -defense.

         C.        Toxicology Evidence

         Miller argues that the trial court should have admitted evidence of the levels of

methamphetamines in Carson' s blood at the time of his death. We disagree.


         An expert witness may testify when " scientific, technical, or other specialized knowledge

will assist    the trier   of   fact to   understand      the   evidence or       to determine    a   fact in issue."   ER 702.


Here, the trial court found that the toxicology evidence would not assist the jury because the

toxicologist did not know " the parameters of the actual deceased person" and could not speak to

how the   methamphetamines might                 have     affected      Carson'   s   behavior.   RP ( May 9, 2013) at 502.

We    agree.    Disconnected from evidence of how Carson was actually acting toward Miller, the

evidence of Carson' s toxicology was more likely to distract the jury than to help them determine

the   legitimacy    of     Miller' s   self defense
                                            -             claim.        Accordingly, the trial court did not abuse its

discretion when it excluded the toxicology evidence.

         D.        Victim' s Character Evidence


         Miller    argues       that the trial   court     should       have   admitted "    the police' s stat[ e] ments that


 David Carson was very hardcore; he had a very violent record and most people are scared of

him, '   as well as evidence of           Carson'   s   history   of violent and       drug -related   crimes.   SAG at 2. We


disagree.




                                                                   11
44966 -8 -II



          In a self -defense case, the victim' s reputation for violence may be admissible if the

defendant had knowledge of the victim' s reputation at the time of the slaying. State v. Callahan,

87 Wn.      App.      925, 934, 943 P. 2d 676 ( 1997) (          citing State v. Cloud, 7 Wn. App. 211, 217, 498

P. 2d 907 ( 1972)).           Here, Miller presented no evidence that he knew about Carson' s criminal


history   or general reputation            for   violence at   the time that    he   shot   Carson. Therefore, it was not


admissible as evidence that Miller reasonably feared Carson would harm him. See Callahan, 87

Wn. App. at 934; State v. Hixson, 94 Wn. App. 862, 867, 973 P.2d 496 ( 1999).

          Evidence of the victim' s violent character may also be relevant to show that the victim

was   the    aggressor     in   a self-defense       scenario.    Callahan, 87 Wn.          App.        at    934.       But reputation


evidence must be based on witness' s personal knowledge of victim' s reputation in a relevant

community         during   a relevant       time   period.    Callahan, 87 Wn. App. at 934 ( citing State v. Riggs,

32 Wn.2d 281, 284, 201 P. 2d 219 ( 1949)).                      The police cannot testify to a victim' s community

reputation       based   on   the   victim' s past encounters with        the   criminal    justice          system.      Callahan, 87


Wn.                   935 ( citing State          Lord, 117 Wn.2d 829, 874, 822 P. 2d 177 ( 1991)).                           Here, the
      App.       at                          v.




proffered character evidence               derives from " the     police' s stat[ e] ments."       SAG         at   2.   The trial court


did not abuse its discretion in excluding this non -neutral reputation evidence.

            E.         Defendant' s Character Evidence


            Miller argues that his " impressive work history, having been a home owner for ten years,

and no felony record should have been presented to the jury to esstablish [ sic] my character to

show   them how          sucessful [ sic] and      independent for     someone       my   age."    SAG at 2. We disagree.

            Evidence      which     is   not relevant   is   not admissible.    ER 402.       Evidence is relevant if it has


  any tendency to make the existence of any fact that is of consequence to the determination of
the   action more probable or              less probable than it       would    be   without      the    evidence."          ER at 401.




                                                                  12
44966 -8 -II



The fact that Miller          was     successful       was    not relevant.      Because Miller admitted that he shot


Carson, the only questions of fact were whether Miller acted with premeditation, and whether he

acted   in lawful            defense.
                        self -             According to the jury instructions, Miller could claim self defense
                                                                                                       -

only if he reasonably believed that Carson intended to inflict death or great personal injury, if he

reasonably believed he was in imminent danger of such harm being accomplished, and if he

employed       reasonable        force.     Miller' s homeownership, work history, and absence of a felony

record did not make it more or less likely that Miller premeditated the shooting, that he

reasonably feared Carson,             or   that the force he      exercised was reasonable.            The trial court did not


abuse its discretion by excluding evidence of Miller' s good character.

          F.        Silencer


          Miller argues that the trial court erred by admitting evidence of a makeshift silencer. We

disagree.


          At some point before the shooting, Miller showed DeSalvo and Carson a homemade

silencer      he had    made with napkins and a plastic              bottle, and   stated   that "[   t]he good thing about it

all you   have to do       when you are          done   you   burn it   and   the evidence    is   gone."    RP ( May 7, 2013)

at   233 ( internal      quotation marks omitted).              The police found a water bottle stuffed with toilet


paper in Miller' s home, and the trial court admitted two photographs of the bottle.

          Miller        argues     that    the   bottle   was    not    properly    authenticated.           To   authenticate   a


photograph, the proponent must put forward a witness " able to give some indication as to when,

where,     and under what circumstances the photograph was taken, and that the photograph


accurately      portrays     the    subject illustrated."        State v. Newman, 4 Wn. App. 588, 593, 484 P. 2d

473 ( 1971).        The    witness        does   not   necessarily   need     to be the   photographer.        Newman, 4 Wn.


               593. .    Here, Officer Rick Hughes testified to the                       identity    of    the bottle,   and the
App.     at




                                                                   13
44966 -8 -II



circumstances under which the picture was taken; that is, during the police search of Miller' s

home.      This was sufficient authentication, and the trial court did not abuse its discretion by

admitting the photographs into evidence.

         Miller also argues that the bottle was not relevant because the makeshift silencer was not

used    in the shooting.        However, the bottle corroborated DeSalvo' s testimony that Miller

discussed homemade        silencers   with   her.   In turn, this conversation indicated that Miller was

interested in shooting     someone without      leaving   behind   evidence.   Accordingly, the bottle was

relevant   to proving Miller'    s premeditated     intent. See ER 701.   The trial court did not abuse its


discretion by admitting the photographs of the makeshift silencer into evidence.

         We affirm the conviction.


         A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




                                                         14
