                                                                                                          EJL ED
                                                                                                    COURT OF APPEALS
                                                                                                        DIVISION
                                                                                                  2015 APR 14
                                                                                                              AN 9: 50
      IN THE COURT OF APPEALS OF THE STATE OF WASIf
                                                                                                    Y
                                               DIVISION II



 STATE OF WASHINGTON,                                                            No. 45319 -3 -II


                                      Respondent,


           v.




 SOL NATHANIEL GROVER,                                                   UNPUBLISHED OPINION


                                      Appellant.


           MELNICK, J. —    Sol Grover appeals his jury conviction for assault in the third degree. He

argues that the trial court commented on the evidence when it overruled Grover' s objection during

the prosecuting attorney' s closing argument. Because the trial court merely explained the reason

for its ruling and did not convey its attitude towards the merits of the case, it did not comment on

the evidence. We affirm.


                                                      FACTS


           Grover became    highly    intoxicated   after an   evening   of   drinking   alcohol.   He waited for a


bus   at an   Olympia   Intercity   Transit bus stop.   Grover had a black plastic bag with him that was

leaking liquid. The bus driver did not let Grover on the bus and alerted his immediate supervisor,

John Lucas, that he refused service to a rider. Lucas drove to the bus stop to follow up and " assess

the situation."   I Report of Proceedings ( RP) at 58.

           Lucas advised Grover that he could not board the next bus and that he needed to leave


transit property. Grover acted in a condescending manner towards Lucas and told him that Lucas

had   no   authority to   make   Grover leave the bus stop.        Lucas      called   dispatch   and asked   for law
45319 -3 - II




enforcement assistance. As Lucas made the phone call, Grover stood up and punched Lucas in the

face, causing him to      move a     few   steps    to the   right.    Lucas sustained a bloody mouth and a swollen

lip.

          On the dispatch call recording, Lucas can be heard requesting assistance and exclaiming,

 He just   assaulted me.       He just     punched me.         Whoa."         I RP   at   72.   In the recording, a voice says

 That'   s assault."   I RP at 72.; II RP at 184. Lucas testified that he was the one that told Grover to


get away from him and that it was assault.

          Grover claimed self defense
                              -       and told the jury that Lucas intimidated him and he felt afraid.

Grover testified that Lucas           shoved        him   and    pushed        him down.           Grover admitted to being

intoxicated at the time of the incident and said he unintentionally struck Lucas while defending

himself. Grover        also said   that he,   not   Lucas,    said, "   Get   off me.      That'   s assault."    II RP at 183.


          During     closing   argument,      the   State focused       on    the credibility      of   Lucas    and   Grover. The


State reminded the jury that it is the sole determiner of credibility, and that it needed to decide

which of the two versions of the incident the jury found credible: Lucas' s version which presents

an assault,     or   Grover'   s version which presents                    defense.
                                                                      self -               Grover objected that the State' s


argument shifted the burden. The trial court overruled the objection, but invited Grover to renew

his objection if he deemed it appropriate. The State continued with closing argument and Grover

obj ected:


           The State]:    Credibility. The problem with the defendant' s version is that in terms
          of the physical evidence that you have here, it just doesn' t work, and could that be
          more obvious?         He —I   mean, put simply, he has absolutely no explanation for the
          injury, none.




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45319 -3 - II




             Grover]:  Your Honor, I' m going to renew the objection. It' s not up to my client
            to explain the injury.
             The State]: It' s a credibility issue, Your Honor, with regard to the defendant' s
            version of events.

            The Court:            I think the prosecutor is allowed to proceed with his argument in
            helping the jury determine credibility, which is the issue here.

II     RP       at    278 -79.              Grover       did     not       object         to    the       trial      court' s   statement.




            The jury found Grover guilty of assault in the third degree. Grover appeals.

                                                               ANALYSIS


I.          STANDARD OF REVIEW


            Article IV, section 16 of the Washington constitution prohibits judges from commenting

on evidence.         State   v.   Elmore, 139 Wn.2d 250, 275, 985 P. 2d 289 ( 1999). We review constitutional


questions      de    novo.    State    v.    Cubias, 155 Wn.2d 549, 552, 120 P. 3d 929 ( 2005).                           A trial judge is


prohibited from making even implied comments on the evidence in order " to prevent the jury from

being unduly influenced by the court's opinion regarding the credibility, weight, or sufficiency of

the evidence."         State v. Sivins, 138 Wn. App. 52, 58, 155 P. 3d 982 ( 2007).

            A trial   court' s conduct violates          the   constitution       only if its   attitude     is "`   reasonably inferable

from the      nature or manner of             the   court' s statements. "'        Elmore, 139 Wn.2d at 276 ( quoting State

v.   Carothers, 84 Wn.2d 256, 267, 525 P. 2d 73 ( 1974)); see also State v. Ciskie, 110 Wn.2d 263,


283, 751 P. 2d 1165 ( 1988) ( " An impermissible comment on the evidence is an indication to the


jury   of   the judge' s     personal attitudes       toward the    merits of       the    cause. "). "    A court does not comment


on   the    evidence    simply       by     giving its   reasons   for     a   ruling."    Inge Det. ofPouncy, 144 Wn. App.

609, 622, 184 P. 2d 651 ( 2008),                aff'd, 169 Wn.2d 382, 229 P. 3d 678 ( 2010).




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II.       THE TRIAL COURT DID NOT COMMENT ON THE EVIDENCE


          Grover argues that the trial court' s statement that credibility is " the issue" constitutes an

unconstitutional comment on the evidence because the trial court " invited the jury to solve the

case,"   instead   of   determining if the   State had   proved   the   charge   beyond   a reasonable   doubt.'   Br.


of Appellant at 7. We disagree.

          Taken in context, the statement was not an impermissible comment on the evidence.


Throughout the trial, the State argued that Grover' s credibility was in question because of the

inconsistency between his version of what transpired and the physical evidence, and because of

his intoxication. In ruling on the objection, there is nothing in the trial court' s statement that can

be construed or interpreted as conveying the trial court' s attitude toward the merits of the case.

Instead, the trial court simply ruled based on why the State could argue its theory of the case. The

trial court' s statement neither expressed its attitude toward the merits of the case nor provided an


opinion    regarding     who was credible.      Therefore, the trial court simply provided a reason for its

ruling. We hold that the trial court did not comment on the evidence.




1 RAP 2. 5( a) permits a party to raise for the first time on appeal a " manifest error affecting a
constitutional right." "      We retain discretion under RAP 2. 5( a) to consider an issue raised for the
first   time on appeal."                          App. 844, 849, 326 P. 3d 876 ( 2014). Even though
                             State v. Kindell, 181 Wn.
the Grover did not object to the trial judge' s ruling, which he now claims constitutes a comment
on the evidence, we will review it.


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         We affirm.


         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:




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