                                                                      - FILED
                                                               COOa OF APFEM.S.
                                                                STATE OF WAS ITT!

                                                                2017 AUG 114 hi 10: 21

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



 STATE OF WASHINGTON,                                    No. 72951-9-1

                       Respondent,                       DIVISION ONE

               V.

 JASPAL SINGH GILL,                                      UNPUBLISHED

                       Appellant.                        FILED: August 14, 2017



       Cox, J. — Jaspal Gill appeals his judgment and sentence for first degree

murder, with a special firearm enhancement, for shooting Harjit Singh to death.

The trial court did not abuse its discretion in admitting evidence from the

dissolution attorney for Gill's ex-wife. Gill fails in his burden to show that the

interpreter's performance at trial materially affected his rights. There was no

prosecutorial misconduct during questioning of a key defense witness. Sufficient

evidence of premeditation supports the conviction for first-degree murder. And

Gill fails to show,for the first time on appeal, that a jury instruction is a manifest

error. We affirm.

       In August 2012, Harjinder Grewal drove Gill to the home of Gill's ex-wife

and children. Harjit Singhl was outside the home because he had just given




       1 We adopt the naming conventions of the parties.
No. 72951-9-1/2

Gill's daughter a ride home in his taxi van. As Harjit began to leave the driveway,

Grewal parked his Mustang behind the van, potentially blocking its exit. Gill got

out and shot Harjit five times. Harjit died.

       The State charged Gill with one count of first degree murder. The first trial

ended in a mistrial due to a hung jury.

       At the second trial, there was a dispute over what occurred just before Gill

shot Harjit. Gill claimed self-defense. Several other witnesses, including Gill's

daughter and son, testified differently about the incident.

       The jury found Gill guilty of first degree murder and also found that he had

committed the crime with a firearm. The trial court entered its judgment and

sentence on the jury's verdict.

       Gill appeals.

                             ATTORNEY TESTIMONY

       Gill argues that the trial court abused its discretion by admitting testimony

from his ex-wife's dissolution attorney under ER 404(b) and ER 403. We hold

that the court did not abuse its discretion in either respect.

       Evidence must be relevant to a material issue before a jury.2 Under ER

404(b), trial courts may not admit evidence of a defendant's prior wrongdoings to

show that he acted in conformity with those other acts. But the rule provides

exceptions and allows the admission of relevant evidence to show motive.3



       2 State
             v. Olsen, 175 Wn. App. 269, 280, 309 P.3d 518 (2013), aff'd, 180
Wn.2d 468, 325 P.3d 187(2014); ER 401.

       3 ER 404(b).



                                               2
No. 72951-9-1/3

       Motive prompts a person to act.4 It "goes beyond gain and can

demonstrate an impulse, desire, or any other moving power which causes an

individual to act."5 Evidence of a defendant's motive is relevant in a homicide

prosecution.°

       Evidence of past disputes and ill-feeling between the defendant and victim

is admissible to show motive.7 Such evidence "often bears directly upon the

state of mind of the accused with consequent bearing upon the question of...

premeditation."8

       A trial court may exclude relevant evidence if the danger of unfair

prejudice substantially outweighs its probative value.°

       We review for abuse of discretion a trial court's decision to admit

evidence.10

       Here, the State argued that Gill had a motive to kill Harjit because Gill

believed that Harjit and Daljit Kaur, Gill's ex-wife, had an affair. The State further

argued that Gill blamed Harjit for the destruction of Gill's marriage and strained

relationship with his children that followed the end of the marriage.



      4 State   v. Powell, 126 Wn.2d 244, 259-61, 893 P.2d 615 (1995).

      5   Id. at 259.

      6 State   v. Stenson, 132 Wn.2d 668, 702, 940 P.2d 1239 (1997).

      7   Id.

      8   Id.

      9   k1.; ER 403.
       10 State v. Quaale, 182 Wn.2d 191, 196, 340 P.3d 213(2014).

                                             3
No. 72951-9-1/4

       Pretrial, the State moved in limine to admit testimony from Daljit's

dissolution attorney about the "contentious[]" dissolution proceedings and

disputes between Gill and Daljit from 2004 through 2012. Gill and Daljit finalized

their dissolution in 2008. Gill sought to exclude the evidence, claiming it was

irrelevant and highly prejudicial.

       The trial court admitted the evidence to establish Gill's motive. The court

explained:

       From the Defendant's point of view, that time period was one of
       sadness and threats and actions by [Harjit], leading to depression
       and PTSD, and ultimately self-defense. From the State's point of
       view, that time period was one of acrimony and difficulties caused
       by an alleged affair that involved Mr. Gill's wife, as well as [Harjit],
       building anger and resentment, and ultimately ending up in murder.
       It's supported, Ithink, for those purposes, by the Defendant's
       statement in [a] declaration that it was the affair that broke up the
       marriage .... !think that goes to his state of mind involving both
       his wife and [Harjit].[111

       The trial court also found that the evidence was not unduly prejudicial to

Gill. The court explained that it did not "see anything... that would truly be

propensity evidence." The court further found that the jury would hear the

evidence because it related to the State's expert's opinion regarding Gill's

depression. Thus,the trial court found a "lack of [undue] prejudice."

       We conclude that the trial court did not abuse its discretion by admitting

the attorney's testimony. The State offered the testimony to show a bitter

dissolution proceeding and continuous disputes that stemmed from Daljit's




       11 Report of Proceedings (September 29, 2014) at 3.

                                             4
No. 72951-9-1/5

alleged affair with Harjit. This testimony was relevant to Gill's motive to shoot

Harjit. It was also relevant to rebut Gill's claim of self-defense.

       As for the ER 403 issue, the trial court properly weighed the prejudice of

the evidence against its probative value. It determined that the danger of unfair

prejudice did not substantially outweigh its probative value. The record supports

this decision.

       Gill argues that the evidence was inadmissible because it "portray[ed]

[him] as a tad' person." His argument focuses on contempt orders entered

against him during the dissolution proceedings. Although evidence of the

contempt orders may have been prejudicial, it was not unduly prejudicial, as the

rule requires. The purpose of the evidence surrounding Gill and DaTVs

dissolution, which included their disputes before and after the dissolution, was to

show motive and rebut the claim of self-defense. That some of the testimony

may not have been directly relevant to the underlying purpose of admission does

not change the propriety of the court's decision.

       Similarly, Gill argues that the dissolution evidence was irrelevant because

it did not relate to the alleged affair. But according to the State's theory of the

case, Daljit's alleged affair with Harjit caused the dissolution, which ultimately

provided motive for the shooting. Gill also submitted a declaration during the

dissolution proceedings, explaining that Daljit's affair led to "the break[down] of

[the] marriage." Thus, the dissolution evidence was relevant.

       Gill also argues that the State had "no justification" for calling the attorney

as a witness because the dissolution was finalized in 2008,four years prior to the


                                              5
No. 72951-9-1/6

shooting. By making this argument, Gill appears to argue that the dissolution

evidence was no longer relevant because of the passage of time. But the length

of time between the dissolution and the shooting goes to the weight of the

evidence, not its admissibility.12

       The trial court also rejected this argument below. Due to a confrontation

between Gill and Harjit in 2010, the court found "serious issues in [Harjit's] role in

this [dissolution] process." The record supports the trial court's decision.

       Lastly, Gill argues that admission of the attorney's testimony was improper

because it concerned documents and events in which the attorney did not

participate. Because Gill makes this argument for the first time on appeal, we

need not consider it further.13

       Accordingly, we conclude that the trial court did not abuse its discretion by

admitting this testimony.

                                     INTERPRETER

       Gill argues that a trial interpreter failed to accurately interpret testimony of

a key witness and that such allegedly inaccurate interpreting violated his

constitutional rights.14 The record does not support this argument.




       12 See   State v. Lord, 117 Wn.2d 829, 872, 822 P.2d 177(1991).

       13   RAP 2.5(a).

       14   Appellant's Opening Brief at 22-35.

                                              6
No. 72951-9-1/7

       The Sixth and Fourteenth Amendments guarantee criminal defendants the

right to a fair tria1.15 Washington's Constitution provides a similar safeguard.16

Due process requires that a defendant have a meaningful opportunity to present

a complete defense.17 This includes the right to offer witness testimony.19

       A defendant's right to an interpreter is based on the Sixth Amendment

right to confront witnesses and "the right inherent in a fair trial to be present at

one's own trial.'"19

       The appropriate use of interpreters is a matter within the trial court's

discretion.20

                                 Interpreter Competency

       Gill argues that the interpreter failed to competently interpret Grewal's

testimony. We hold that he fails to show that any such shortcomings materially

affected his rights.

       "[A] defendant's right to an interpreter means a right to a competent

interpreter."21 When a defendant challenges an interpreter's competency,"the



       15   State v. Larson, 160 Wn. App. 577, 590, 249 P.3d 669 (2011).

       16   Id.; Const. art.!, §§ 3, 22.

       17   Larson, 160 Wn. App. at 590.
       18   id.

       19 State
              v. Ramirez-Dominguez, 140 Wn. App. 233, 243, 165 P.3d 391
(2007)(quoting State v. Gonzales-Morales, 138 Wn.2d 374, 379,979 P.2d 826
(1999)).

       2° Id. at 244.

       21   State v. Teshome, 122 Wn. App. 705, 711, 94 P.3d 1004 (2004).
                                              7
No. 72951-9-1/8

standard for competence should relate to whether the rights of non-English

speakers are protected, rather than whether the interpreting is... egregiously

poor."22

       ROW 2.43.080 requires that all language interpreters serving in a legal

proceeding abide by a code of ethics. An interpreter takes an oath that he or she

"will repeat the statements of the person being examined to the court... to the

best of the interpreter's skill and judgment."23

       GR 11.2 also applies and provides that an interpreter:

       shall interpret or translate the material thoroughly and precisely,
       adding or omitting nothing, and stating as nearly as possible
       what has been stated in the language of the speaker ....[24]

       The rule also provides, in relevant part:

       When a language interpreter has any reservation about [his or her]
       ability to satisfy an assignment competently, the interpreter shall
       immediately convey that reservation to the parties and to the
       court.[251

       Here, Gill argues that the interpreter violated GR 11.2 and chapter 2.43

ROW. But he fails to show that this materially affected his rights.

       Grewal testified for four days, but Gill's argument focuses on the second

and third days of Grewal's testimony. An interpreter interpreted for Grewal on




       22   Id. at 712.

       23   Former ROW 2.43.050 (1989).

       24 GR    11.2(b)(emphasis added).

       25   GR 11.2(c).

                                             8
No. 72951-9-1/9

the first day when he explained the details surrounding the shooting. Gill did not

object at trial to any of these interpretations.

       On the second day, Grewal testified through a different interpreter. The

record shows some confusion between Grewal and the interpreter near the

beginning of the testimony. The State asked Grewal about a different name that

he had used. The following exchanges occurred:

       [State]: At one point, you told us that you went by the name Henry.

      [Grewal through interpreter]: Yes.

       [State]: But you said that you've stopped using that name.

      [Grewal through interpreter]: It's not a big deal. By 9:00.

      [Grewal]: What?

       (Discussion in Punjabi.)

      [Grewal through interpreter]: Harjinder.

       (Further discussion in Punjabi.)

      [Grewal through interpreter]: It's just not a big thing in name. My
      name is Harjinder, but some people call me Henry. So it's nothing
      much in the name.126]

       Later, the State asked Grewal whether Gill or his brother-in-law, Swamn

Gill, owned a limousine company.27 Grewal corrected the interpreter's

interpretation of his answer. The following exchange occurred:

      [Grewal through interpreter]: Jaspal Gill used to take care of the
      company.



       26   Report of Proceedings (October 8, 2014) at 1137.

       27   Id. at 1139.

                                               9
No. 72951-9-1/10

      [State]: He used to take care of the company? Or was it his
      company?

      [Grewal through interpreter]: What I knew was that Swam Gill was
      -- used to take care of the company.

      [Grewal]: No. He's the owner.

      [Grewal through interpreter]: He's the owner and take care of the
      company.E291

      Grewal then stopped to explain a possible misunderstanding with the

interpreter.29 The following exchange occurred:

      [Grewal]: By the way, I have a question. It looks like I'm translating
      literally wrong way. Every time I'm having kind of issue. I say
      something else, every time something else. You know? I don't
      want to speak very good English, but I try to understand most of it.
      It looks like it's interpreting a little bit different way. I'm sorry. I'm
      misunderstanding you or you're understanding me.

      [Interpreter]: I'm a trained interpreter, and the language is my native
      language.

      But if you speak slowly, and don't say it again, you know,just once.


      [Grewal]: Okay.

      [State]: Mr. Grewal, let me ask you to do this for now. Please
      break up what you're saying into small bits so that Madam
      Interpreter can properly interpret, just like how I'm breaking up my
      questions.[N

      Thereafter, the interpreter expressed difficulty understanding Grewal.

During Grewal's answer to a question, the interpreter and Grewal had a



      28   Id.

      28   Id. at 1140.

      38   Id.

                                             10
No. 72951-9-1/11

discussion in Punjabi. The interpreter stated to the court: "It doesn't make

sense."31 Grewal then repeated his answer and testified the rest of the day

without incident.

       On the third day, Grewal corrected the interpreter's interpretation again.

In response to the State's question regarding a photograph of items on Grewal's

coffee table, the following exchange occurred:

      [Grewal through interpreter]: There's a remote, there is a telephone,
      and there is —

      [Grewal]: A remote. I did not say telephone; I said remote.

      [Grewal through interpreter]: So there are two remotes....[321

       Later, outside the jury's presence and after Grewal's lengthy testimony

about the shooting, Gill raised a concern about the accuracy of the interpretation.

He claimed, for example, that the interpreter did not interpret Grewal's "yes"

response to a question and only interpreted his explanation following the "yes"

response. Gill requested that the trial court replace the then interpreter with the

interpreter from the first day.

       The State objected but told the court that several people in the audience

informed the State of some inaccurate interpretations. The interpreter took the

stand for examination.

       The interpreter explained her professional experience and that she

accurately and truthfully interpreted questions from English to Punjabi. But she



       31   Id. at 1180.

       32   Report of Proceedings (October 9, 2014) at 1294.

                                            11
No. 72951-9-1/12

explained that Grewal "babbles... extra words" and "add[ed] extra incoherent

words" to a sentence. She further explained that she paraphrased his testimony

rather than interpret each word, giving "the important thing,... the gist... ."

       The State suggested that the trial court instruct Grewal to wait until a

complete interpretation is given before answering a question. The State also

suggested that Grewal provide "short segments [of testimony] at a time." Gill

agreed with these recommendations and suggested that Grewal testify slowly.

Gill did not request that Grewal restate his earlier testimony.

       Before Grewal resumed his testimony, the trial court instructed the

interpreter to interpret "each and every word." It also instructed the interpreter to

do so "whether or not it ma[de]sense... to [her], or whether[she] believe[d] [it]

[wa]s an incomplete answer or sentence... ." For the remainder of the third day

and throughout the fourth day, Grewal testified, in detail, about the shooting

without incident.

       There is no dispute that the interpreter violated GR 11.2(b) by failing to

"interpret or translate the material thoroughly and precisely, adding or omitting

nothing ... ."33 Thus, she failed to abide by the oath that she would "repeat the

statements of the person being examined."34

       It is also arguable that the interpreter violated GR 11.2(c) because she

failed to immediately convey to the parties and the court her "reservation about




      33(Emphasis    added.)

      34   Former RCW 2.43.050.

                                             12
No. 72951-9-1/13

[her] ability" to competently interpret Grewal's testimony. The interpreter did not

state any problems with Grewal's answers until her examination on the third day

of Grewal's testimony.

        Nevertheless, we conclude that the interpreter's conduct did not deprive

Gill of his rights.

       Gill relied on Grewal's testimony to support his theory of the case. But the

specific interpretation discrepancies, described above, were not material to

Grewal's testimony about the shooting. Specifically, Grewal's testimony about

his nickname, the owner of a limousine company, and•items on his coffee table

were immaterial to Gill's self-defense claim.

       Additionally, Grewal testified about the shooting, in detail, after the trial

court instructed the interpreter to interpret every word of the testimony. That

testimony was consistent with and further developed the unchallenged testimony

from the first day. Gill has not challenged the correctness of this interpretation.

       Gill relies on Grewal's "two remotes" testimony to argue that the

interpreter "interjected her personal views of the evidence." This is not so.

       GA 11.2(b) states that an interpreter "shall use the level of communication

that best conveys the meaning of the source, and shall not interject [his or her]

personal moods or allitudes."35 As discussed above, Grewal corrected the

interpreter's interpretation of his testimony regarding a photograph of items on

his coffee table. During the interpreter's examination, she explained that she




       35 (Emphasis added.)



                                              13
No. 72951-9-1/14

incorrectly said "phone" instead of "two remotes." She thought the photograph of

the items contained a remote and a phone, rather than two remotes.

       Gill's argument is unpersuasive for two reasons. First, Gill's argument

inaccurately cites the rule. The rule refers to the interpreter's moods and

attitudes when "convey[ing] the meaning of the source" of communication.36 It

does not mention an interpreter's personal view of the evidence. Second, Gill

fails to show how the interpreter's incorrect interpretation about items in a

photograph interjected her "personal moods or attitudes."37

       Gill fails in his burden to establish that any interpreter shortcomings

materially affected his rights. Accordingly, we need not examine his arguments

regarding structural or harmless error.

                          PROSECUTORIAL MISCONDUCT

       Gill argues that the prosecutor committed misconduct, depriving him of his

right to a fair trial. We hold that no such misconduct occurred.

       To prevail on a prosecutorial misconduct claim, a defendant must

establish that the prosecutor's conduct was improper and prejudicia1.38 The

absence of either misconduct or prejudice is fatal to this claim.39




       36   GR 11.2(b).

       37 Id.(emphasis added).


       38 State   v. Lindsay, 180 Wn.2d 423, 431, 326 P.3d 125 (2014).

       39 See   Stenson, 132 Wn.2d at 718-19.

                                             14
No. 72951-9-1/15

       Prosecutors may not express personal opinions on the credibility of a

witness.4° But no prejudicial error occurs "unless it is 'clear and unmistakable"

that the prosecutor expressed a personal opinion.41 For example, a prosecutor

improperly asserts his or her opinion on a witness's credibility by calling a

witness a liar.42

       Here, Gill objected during the State's direct examination of Grewal,

claiming that the prosecutor had been leading the witness. In response, the

prosecutor requested permission to treat Grewal as a "hostile witness based on

the way he answer[ed][the] questions."43 Gill responded that the prosecutor

should not have made such a statement, and the trial court called for a recess.

       Out of the jury's presence, the court considered the further arguments of

the parties. It then gave instructions on how further examination of the witness

should be handled. The court did not otherwise rule on the objection.

       Notably, there is nothing in this record to suggest that the basis of Gill's

objection below was the prosecutor's alleged expression of an opinion on

Grewal's credibility. In any event, Gill did not request a curative instruction and




       40 Lindsay, 180 Wn.2d at 437.

       41State v. Calvin, 176 Wn. App. 1, 19, 316 P.3d 496(2013)(internal
quotation marks omitted)(quoting State v. Brett, 126 Wn.2d 136, 175, 892 P.2d
29(1995)(plurality opinion)).

      42 See Lindsay, 180 Wn.2d at 438; State v. Reed, 102 Wn.2d 140, 145,
684 P.2d 699(1984).

       43   Report of Proceedings (October 8, 2014) at 1149-50.

                                             15
No. 72951-9-1/16

none was given. Thereafter, the jury returned to the courtroom and the

examination continued.

       Gill argues that the prosecutor's characterization of Grewal as a hostile

witness expressed the prosecutor's opinion on Grewal's credibility. He

specifically argues that the prosecutor conveyed his opinion that Grewal was not

honest or forthcoming. This argument is unpersuasive.

       When viewed in the context of the prosecutor's examination of this

witness, which appears to have been based on this witness's prior testimony,

there simply is no reasonable basis to conclude that the prosecutor expressed

his opinion on Grewal's credibility. Rather, the prosecutor appropriately

responded to Gill's objection by explaining his request to ask leading questions.

We need not decide whether this response was legally correct. There is no

doubt that Gill's claim of misconduct fails because he cannot "`clear[ly] and

unmistakab[ly]" show that the prosecutor expressed his personal opinion on

Grewal's credibility."

       Because Gill fails to establish misconduct, we need not address the

prejudice prong of his claim.

                          SUFFICIENCY OF EVIDENCE

       Gill argues that insufficient evidence supports the jury's finding of

premeditated murder. We disagree.




      44 Calvin, 176 Wn. App. at 19 (internal quotation marks omitted)(quoting
Brett, 126 Wn.2d at 175).

                                             16
No. 72951-9-1/17

       Due process requires the State to prove beyond a reasonable doubt every

element of a crime.45 An insufficient evidence claim "admits the truth of the

State's evidence and all reasonable inferences from that evidence."46 The critical

inquiry is "whether the record evidence could reasonably support a finding of

guilt beyond a reasonable doubt.'"47 We "view the 'evidence in the light most

favorable to the prosecution and determine whether any rational fact finder could

have found the essential elements of the crime beyond a reasonable doubt.'"49

       "Circumstantial evidence and direct evidence can be equally reliable."49

But "inferences based on circumstantial evidence must be reasonable and

cannot be based on speculation."59 Inferences are logical conclusions or

deductions from an established fact.51




      45 Statev. Rodriquez, 187 Wn. App. 922, 930, 352 P.3d 200, review
denied, 184 Wn.2d 1011 (2015).

      46   Id.

      47 Id. (quoting   Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 61 L.
Ed. 2d 560(1979)).

       49 State v. Garcia, 179 Wn.2d 828, 836, 318 P.3d 266(2014)(quoting
State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007(2009)).

      49   Rodriquez, 187 Wn. App. at 930.

      59 State   v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318 (2013).

      51   Tokarz v. Ford Motor Co.,8 Wn. App. 645, 654,508 P.2d 1370 (1973).

                                             17
No. 72951-9-1/18

       Premeditation "must involve more than a moment in ... time."52 A

defendant's "mere opportunity to deliberate is not sufficient to support a finding

of premeditation.'"53

      'The State can prove premeditation by circumstantial evidence 'where the

inferences drawn by the jury are reasonable and the evidence supporting the

jury's finding is substantial.'"54 Four factors—the defendant's motive,

procurement of a weapon, stealth, and the method of killing—are "particularly

relevant to establish premeditation.'"55 For example, a defendant's prior threats,

multiple gunshots, and plan to bring a weapon to the scene provide

circumstances to support a jury's finding of premeditation.56 But the presence of

all four of the above factors is not required to establish premeditation.57

       Here, the jury found Gill guilty of first degree murder. To do so, it had to

find beyond a reasonable doubt that Gill acted with premeditated intent to cause

Harjit's death. The trial court provided the following "premeditated" instruction:

              Premeditated means thought over beforehand. When a
      person, after any deliberation,forms an intent to take human life,
      the killing may follow immediately after the formation of the settled


      52   RCVV 9A.32.020(1).

       53 State v. Hummel, 196 Wn. App. 329, 354, 383 P.3d 592(2016)(quoting
State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995)), review dismissed, 187
Wn.2d 1021 (2017).

      54   Id. at 355 (quoting Pirtle, 127 Wn.2d at 643).

      55   Id. (quoting Pirtle, 127 Wn.2d at 644).

      56 See   State v. Ra, 144 Wn. App. 688, 703, 175 P.3d 609(2008).

      57 See   State v. Sherrill, 145 Wn. App. 473, 485-86, 186 P.3d 1157 (2008).

                                             18
No. 72951-9-1/19

       purpose and it will still be premeditated. Premeditation must
       involve more than a moment in point of time. The law requires
       some time, however long or short, in which a design to kill is
       deliberately formed.[55]

       As to the first premeditation factor, the evidence established Gill's motive

to kill Harjit. The evidence shows that Gill continued to have confrontations with,

and continued to harbor anger towards, Harjit.

       Gill testified that he continued to have confrontations with Harjit before the

shooting. Gill's son, Jagrit Gill, testified that Gill was angry with Harjit and

suspected an affair between DaIA and Harjit. Jagrit also testified that Harjit often

visited the family's home to provide assistance, against Gill's wishes.

       Gill's daughter, Manrit Kaur, similarly testified that Gill was angry with

Harjit and did not want him around Daljit or the family's home. She and Daljit

testified to hearing Gill express his desire to buy a gun and kill Harjit.

       As to the second premeditation factor, Gill bought a gun after a

confrontation with Harjit in 2010. He later acquired another gun, which he used

in the shooting, and carried it with him most of the time.

       As to the third factor of stealth, "evidence that the defendant attempted to

hide himself from the victim prior to the attack" supports the inference of

premeditation.59

       Here, Manrit testified that she believed she saw the Mustang parked

across the street when Harjit pulled into the driveway. Manrit and Jagrit saw the



       59   Clerk's Papers at 326.

       59 State   v. Barajas, 143 Wn. App. 24, 36-37, 177 P.3d 106 (2007).

                                              19
No. 72951-9-1/20

Mustang pull into the driveway and stop behind, and/or very close to, Harjit's van,

potentially blocking its exit. Manrit and Jagrit then saw Gill get out of the car and

move to the driver's side of the van.

       The evidence conflicted on whether Harjit remained in, or attempted to

exit, the van. The jury also watched video footage from Harjit's van, which

showed the Mustang's arrival.

       Although this evidence may not establish that Gill attempted to hide from

Harjit before shooting him, the jury could reasonably infer that Gill approached

Harjit in this manner to catch him off guard.

       The final premeditation factor, the method of murder, is significant.° A

"lengthy and excessive attack provides evidence of premeditation."61

Additionally, a pause between gunshots supports an inference that a defendant

"had time to deliberate on and weigh his decision" to kill the victim.62

       Here, the evidence showed that Gill fired five shots to kill Harjit, striking

Harjit's shoulder, arm, and chest. Neighbors testified that they heard one or

more gunshots, followed by a short pause and more gunshots. After the

shooting, Gill reentered the Mustang and Grewal drove away.

       Manrit saw the shooting from an undetermined distance. She testified that

Gill was approximately one and a half feet away from Harjit during the shooting.




       60 Sherrill, 145   Wn. App. at 485.

       61   State v. Cortes Aguilar, 176 Wn. App. 264, 274, 308 P.3d 778 (2013).

       62 fl, 144 Wn. App. at 704.



                                             20
No. 72951-9-1/21

She did not hear Harjit say anything but she heard Gill swear at Harjit, in an

angry tone, before shooting him. Although she did not see the shooting, she

heard several gunshots and saw Gill holding a gun with his arm extended out.

       Jagrit testified that he was home watching television when he saw,

through a nearby window, Gill open the van door before he began shooting.

Jagrit did not see the gunfire, but he saw Gill holding the gun with his arm

extended out. Jagrit did not hear any conversation between Gill and Harjit before

the gunshots.

       Taken together, the evidence showed that Gill "had time to deliberate on

and weigh his decision" to kill Harjit.63 It showed that Gill had Grewal drive him to

the family home and park across the street. Gill had a loaded gun and instructed

Grewal to pull into the driveway, behind and/or very close to Harjit's van. Gill

exited the Mustang and approached the van's driver side door. Gill may have

sworn at Harjit before firing the gun, pausing, and firing again.

       Gill's and Grewal's testimonies provided the jury with alternative versions

of the events. Both testified that Harjit threatened Gill and may have attempted

to hit him with the van. But this court defers to the jury on questions regarding

conflicting evidence, witness credibility, and the persuasiveness of evidence.64

Considering the evidence in a light most favorable to the State, substantial

evidence supports the jury's finding regarding Gill's premeditated intent. Thus,




       63 Id.


       64   Rodriquez, 187 Wn. App. at 930.

                                              21
No. 72951-9-1/22

we hold that a reasonable juror could find beyond a reasonable doubt that Gill

killed Harjit with premeditated intent.

       Gill argues that the State relied on speculation to establish premeditation.

But as previously stated, inferences are logical conclusions or deductions from

an established fact.65 Speculation is "[t]he act or practice of theorizing about

matters over which there is no certain knowledge."66 Here, the State presented

substantial circumstantial evidence that allowed the jury to reasonably infer that

Gill killed Harjit with premeditated intent. Thus, this argument is unpersuasive.

                               JURY INSTRUCTION

       For the first time on appeal, Gill argues that the voluntary intoxication

instruction was improper. He does so for three reasons. First, he argues that the

trial court improperly imposed an affirmative defense instruction over his

objection. Second, he argues that the instruction commented on the evidence.

Lastly, Gill argues that the instruction was legally erroneous. Because Gill fails to

satisfy the requirements of RAP 2.5(a), we do not address his substantive

arguments.

       Under RAP 2.5(a), we may refuse to review any claim of error that was not

raised in the trial court. But a party may raise certain issues for the first time on

appeal, including a manifest error affecting a constitutional right.67 We may allow



            Tokarz,8 Wn. App. at 654.

       66   BLACK'S LAW DICTIONARY 1617 (10th ed. 2014).

       67RAP 2.5(a)(3); see also State v. Lamar, 180 Wn.2d 576, 582, 327 P.3d
46 (2014).

                                             22
No. 72951-9-1/23

this limited exception to a failure to preserve error based on the answers to two

questions: "(1) Has the party claiming error shown the error is truly of a

constitutional magnitude, and if so,(2) has the party demonstrated that the error

is manifest?"68 If Gill establishes a manifest constitutional error, this court

conducts the harmless error analysis to determine if the error requires reversa1.69

       Here, the State proposed a voluntary intoxication instruction. Gill

objected. After the parties and the court discussed the instruction at length, the

trial court drafted a substitute instruction that it ultimately gave to the jury as

Instruction 27. Gill chose not to object to this instruction when the court asked for

exceptions.

       We assume for purposes of analysis that each of the three challenges is

of constitutional magnitude. The State does not argue otherwise. Thus, the

question is whether any challenge is "manifest."7°

       As for manifest error, Gill must show actual prejudice.71 This requirement

focuses on "whether the error is so obvious on the record" that it warrants

appellate review.72 Thus, the complaining party must make "a 'plausible showing

... that the asserted error had practical and identifiable consequences in the




       68 State   v. Kalebaudh, 183 Wn.2d 578, 583, 355 P.3d 253(2015).

       69 State   v. Coristine, 177 Wn.2d 370, 379-80, 300 P.3d 400 (2013).
       70 RAP 2.5(a).

       71   Kalebaugh, 183 Wn.2d at 584.

       72 State   v. O'Hara, 167 Wn.2d 91, 99-100, 217 P.3d 756(2009).

                                              23
No. 72951-9-1/24

trial.'"73 To determine whether an error is practical and identifiable, this court

"must place itself in the shoes of the trial court" to ascertain whether the trial

court could have corrected the error given what it knew at that time.74

       The following facts are necessary to provide context about the relationship

between Gill's self-defense claim and the voluntary intoxication instruction.

                          Imposition of Affirmative Defense

       Gill first argues that the second sentence of the instruction imposed an

affirmative defense of voluntary intoxication over his objection. This claimed

error is not manifest.

       Here, the court instructed the jury to acquit Gill if it found that he acted in

self-defense. To do so, the jury had to find that Gill reasonably believed that

Harjit intended to inflict death or great personal injury upon him. The jury also

had to find that Gill reasonably believed there was imminent danger of harm.

       As to Gill's reasonable beliefs, the parties presented evidence regarding

his alleged PTSD. This condition may have been caused by a frightening

encounter with Harjit in 2010. Gill's expert witness testified about PTSD

symptoms, including increased startle responses and a possible increase of a

"fight or flight" reaction. But the expert witness could not conclude with certainty

whether Gill suffered from PTSD at the time of the shooting, or whether it

contributed to the shooting. The State's expert witness diagnosed Gill with




       73 Kalebaugh, 183 Wn.2d     at 584 (quoting O'Hara, 167 Wn.2d at 99).

       74   Id. (quoting O'Hara, 167 Wn.2d at 100).

                                              24
No. 72951-9-1/25

depression and could not conclude with certainty whether Gill had PTSD at the

time of the shooting, or whether it contributed to the shooting.

       Additionally, Gill consumed alcohol before the shooting. The parties'

experts testified about alcohol's effect in general and its possible effects on

someone experiencing PTSD.

       As stated above, the trial court provided the following limiting instruction in

Instruction 27:

              No act committed by a person while in a state of voluntary
       intoxication is less criminal by reason of that condition. However,
       evidence ofintoxication may be considered as it relates to
       your consideration of post-traumatic stress disordergq

Gill's challenge focuses on the emphasized portion of the instruction. He argues

that he "never claimed that his culpability was reduced because he had

consumed alcohol before the shooting." By making this argument, he appears to

argue that the trial court imposed an affirmative defense of voluntary intoxication

over his objection. The trial court did not do so.

       A defendant's claim of voluntary intoxication does not excuse the

criminality of an act.76 But voluntary intoxication "can render the defendant

incapable of forming the specific intent necessary for conviction of the crime.'"77

Thus, evidence of a defendant's voluntary intoxication is relevant to the jury's




       75   Clerk's Papers at 344(emphasis added).

       76   State v. Stacy, 181 Wn. App. 553, 569, 326 P.3d 136 (2014).

       77   Id. (quoting State v. Mriqlot, 88 Wn.2d 573, 576 n.2, 564 P.2d 784
(1977)).

                                             25
No. 72951-9-1/26

determination of whether the defendant acted with a particular degree of mental

culpability.78

       Gill did not assert a voluntary intoxication defense at trial. Thus, the trial

court did not instruct the jury to determine whether Gill's intoxication rendered

him incapable of forming the specific intent necessary for murder. Rather, the

jury had to determine whether Gill reasonably believed that Harjit intended to

inflict death or great personal injury upon him.

       This instruction did not create practical and identifiable consequences at

trial. The trial court recognized the different jury determinations relevant to a

voluntary intoxication defense and a self-defense claim. It properly gave this

instruction to limit how the jury used certain evidence before it. This does not

obviously create a situation where the court imposed an affirmative defense of

voluntary intoxication over Gill's objection. Accordingly, the trial court's

instruction does not constitute a manifest error.

       To support his argument, Gill argues that the State proposed an

instruction "that relates solely to a statutory defense." But the initial instruction

that the State proposed is irrelevant because the trial court drafted the instruction

that it gave the jury. That instruction is the focus here, not the State's proposed

instruction.




       78   Id.

                                              26
No. 72951-9-1/27


                              Comment on the Evidence

       Gill next argues that the second sentence of the instruction commented on

the evidence. This claimed error is not manifest.

       We must review the facts and circumstances of each case to determine

whether an act constitutes a comment on the evidence.79 Our fundamental

question in analyzing judicial comments "is whether the mere mention of a fact in

an instruction conveys the idea that the fact has been accepted by the court as

true."8° An instruction improperly comments on the evidence when it relieves the

State of its burden of proof or "resolve[s] a contested factual issue for the jury."81

An instruction does not comment on the evidence if the trial court "appropriately

instruct[s] the jury on the use of evidence" admitted for limited purposes.82

       Here, the second sentence of the jury instruction did not comment on the

evidence. Rather, it properly instructs the jury on the use of intoxication

evidence. A plain reading of the instruction shows this, and states:

              No act committed by a person while in a state of voluntary
       intoxication is less criminal by reason of that condition. However,
       evidence of intoxication may be considered as it relates to
       your consideration of post-traumatic stress disorder[83]




       79 State   v. Francisco, 148 Wn. App. 168, 179, 199 P.3d 478 (2009).

       89 State   v. Levy, 156 Wn.2d 709, 726, 132 P.3d 1076 (2006).

       81   State v. Brush, 183 Wn.2d 550, 557, 559, 353 P.3d 213(2015).

      82 Wuth ex rel. Kessler v. Lab. Corp. of Am., 189 Wn. App. 660, 700, 359
P.3d 841 (2015).

       83 Clerk's   Papers at 344(emphasis added).

                                             27
No. 72951-9-1/28

       Moreover, nothing about the instruction communicated the judge's view on

any contested factual issue. Although the instruction mentions PTSD and

intoxication, it does not "convey[] the idea that the fact has been accepted by the

court as true."84 Whether Gill had PTSD and whether his intoxication affected his

alleged condition remained contested factual issues for the jury. Thus, the trial

court's instruction does not constitute a manifest error.

       Gill argues that the instruction resolved a disputed issue of fact for the

jury—specifically, the relationship between intoxication and PTSD. He also

argues that the instruction "emphasized the State's case" to his detriment and

"told the jury [that] it should credit the State expert's opinion." The plain terms of

the instruction show that it did not do so.

                                Erroneous Instruction

       Gill argues that the trial court provided a legally erroneous instruction. We

again disagree.

       "Jury instructions are proper when, read as a whole, they permit parties to

argue their theories of the case, do not mislead the jury, and properly inform the

jury of the applicable law."85 We consider the challenged portion of the

instruction in context.88




       84   Levy, 156 Wn.2d at 726.

       86 Spivey   v. City of Bellevue, 187 Wn.2d 716, 738, 389 P.3d 504(2017).

       86 State   v. Fehr, 185 Wn. App. 505, 514, 341 P.3d 363(2015).

                                              28
No. 72951-9-1/29

       Here, Gill challenges the first sentence of Instruction 27, discussed above,

which provides:

              No act committed by a person while in a state of voluntary
       intoxication is less criminal by reason of that condition.[87]

       He argues that this instruction misstated the law because it "contradict[ed]

the legal requirement that the jury put itself in [Gill's] shoes" when determining

whether he acted in self-defense. He also argues that the instruction relieved the

State of its burden to disprove his self-defense claim. He specifically argues that

the instruction "told the jury that any act committed by [Gill] after consuming

alcohol was criminal." Not so.

       Gill is correct that the jury must stand in the defendant's shoes and

consider all the facts and circumstances known to the defendant to determine

whether he acted in self-defense.88 But the sentence at issue is entirely separate

from a self-defense instruction because it relates to a voluntary intoxication

defense.89 More importantly, the plain language of this sentence shows that it

does not contradict the subjective component of the self-defense instruction.

       Additionally, nothing in the sentence instructed the jury to find that Gill

committed a crime if it found that he was intoxicated. Thus, the trial court's

instruction does not constitute a manifest error.




       87 Clerk's   Papers at 344.

       88 See   State v. Woods, 138 Wn. App. 191, 198, 156 P.3d 309 (2007).

       89   Compare ROW 9A.16.090, with ROW 9A.16.050(1).

                                             29
No. 72951-9-1/30

       Gill also argues that this sentence instructs the jury to "ignore the facts

that might have influenced Gill's perspective." Again, nothing in this sentence

tells the jury to do so. Rather, the sentence correctly explained to the jury that

intoxication does not excuse criminal acts.9°

       Lastly, Gill argues that this instruction "tipped the scales" in the State's

favor. To support this argument, Gill relies on an allegation that the trial court did

not give this instruction in his first trial, which resulted in a hung jury.

       Gill's argument is unpersuasive because it is purely speculative. We

simply cannot know from this record why there was a hung jury in the first trial.

       Because there is no manifest error for any of the three arguments, we

need not determine whether there was harmless error.

       We affirm the judgment and sentence.

                                                             CO7(i,T
WE CONCUR:



 ce-o&

       90 See RCW 9A.16.090.


                                               30
