### FILED 

## COURT OFAPPEALS IN THE COURT OF APPEALS OF THE STATE OF W 

### giMaTTON
STATE OF WASHINGTON, DIVISION II
Respondent,

v. WESTON GARRETT MILLER, Appellant. 

### 2014 

### DEC -- 2 AN 9: 00

NoST 6Rf8- 

## f'SHIUGTON BY E UTY
UNPUBLISHED OPINION
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 fairtrial 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 ofthe 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 

### frequently argued, but Carson was never physically violent with DeSalvo. Other than 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 youjust 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 itfor 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) at236 (internal quotation marks omitted). Two days later, DeSalvo and Carson were preparing to move out ofMiller's housewhen 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 nottouch Carson ormove any items. 244966 - 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 himselfand the door, and that he pushed DeSalvo out ofthe 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 

### residuethat Carson was shotfrom no morethanfivefeet away. PROCEDURAL HISTORY 

### The State charged Miller with degree murder in the first degree with a firearm enhancement,' 

### and fourcounts ofunlawful possession ofafirearm inthe second degree.2 Miller pleaded guilty to the firearm charges.

At trial, Miller argued that he shot Carson in self - defense. 

### 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 admonishingthejury:

THE COURT: I have a beliefthat thejury 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). 344966 - 8 -II 

### THE COURT: It isn'tthatthey said they couldn't. Onejuror in particularthejuror 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 ofthejurors having ahardtime seeing everything 

### that's going on inthe courtroom. I've hadthe defense table moved up,which should help the line of sight issues. 

### Ifany ofyou 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 itthatway, so I would preferthatwejust staywhere we are as long as everybody can see. 

### Also, ithas cometo my attention thatcounsel has had some difficultybeing heard by thejurors. 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 ifthey could not see or hear: DEFENSE ATTORNEY]: 

### We still have a continuing problem of configuration

of the

### jury. Just for purposes ofthe record, from where we sitwe cannot see at least two 

### orthree ofthejurors. 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 

### myrequestto have the alternates be placed outside. 

### THE COURT: I inquired ofthejuryyesterday as to whether anybody was having 

### a problem seeing or hearing with the defense table being where it is. None ofthejurors 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 opportunityto viewthe parties atthe 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 atrial that I have to be concerned with the configuration ofthejury. 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 

### juryboxwith the alternates atthe end and I'm notgoingto change that.

DEFENSE ATTORNEY]: For the record. 

### THE COURT: Bring thejury in. WHEREUPON THE JURY ENTERS THE COURTROOM.)
444966 - 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 ofyou may have some difficulty in seeing what's transpiring in the courtroom 

### during the trial. As I mentioned 

### yesterday, ifany ofyou during the course ofthe presentation ofthe 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 ifthere's an issue, because ifthere's not, I presume all ofyou have an opportunity to observe and listen and pay attention to what's going on inthe courtroom. RP (

### May 9, 2013) at 452 - 54 ( emphasis added). 

### At no point on the record does anyjuror indicate aproblem seeing orhearing theproceedings. 

### 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,itpermits any rationaltrieroffactto find the essential elements beyond areasonable doubt. State v. Aten, 130 Wn.2d 640, 666 -67, 927 P.2d 210 ( 1996). Upon review of the 

## sufficiency ofthe 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 reviewthejury's determination ofthe credibility ofa witness or evidence.

544966 - 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 ofsuch 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 bythejury are reasonable and the evidence supporting thejury's verdict is substantial." State v. Bingham, 105 Wn.2& 820, 824, 719 P.2d 109 ( 1986). 

### Awide range ofprovenfacts may support an inference ofpremeditation. 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 be44966 - 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 ofretrieving aweapon from elsewhere may allowthe fact finderto 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. Onthe day ofthe shooting, Millerwentto his room, retrieved his gunfrom asafe, 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 rightto afair and public trial,4 and, by analogy,his rightto assist his attorneys were violated because he and thejury could not see each
other. We hold that the record fails to establish that thejurors 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). 744966 -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 ifwe 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 ofLittlefield, 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 rightto be seen at the counsel table or to observe thejury 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 ofthe 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 thejury 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 - defense. Miller also raises evidentiary issues in his SAG relating to ( 1) toxicology evidence; (2)
evidence of Carson' s bad character; ( 3) evidence of Miller's good character; and (4) admission of a silencer. 

### Finally, Miller reiterates his insufficientevidence claim, which we have disposed
of above and will not address further.44966 - 8 -I1 A. Standard of Review 

### We review atrial court's evidentiary rulings for abuse ofdiscretion. 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 ofhis SAG; he merely
recites the rule ofState 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 ajury 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 ofself - 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 of self - defense." 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).

944966 - 8 -II Here, the

### jury was instructed on self - defense. 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). 

### Thejury instruction more than adequately conveyed the law ofself - 

### defense. Assuming Miller intendedto challengethe self - defense instruction,his challenge fails. We also hold thatthe evidence was sufficient forthejuryto determine that Millerwas not acting in self -

defense. 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]] [ 

### anyperson inthe 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], atthe time of [and priorto] the incident. 

### The State has the burden ofproving beyond a reasonabledoubtthatthe homicide was not justifiable. Ifyou 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 ofnot guilty. Emphasis omitted. 1044966 - 8 -II 

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

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

### Finally, a rationaljury could have chosen not to credit Miller's account ofthe shooting because he provided inconsistent stories to the police. 

### In light ofthese 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 ofhis death. We disagree. 

### An expertwitness maytestifywhen "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 ofthe 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 ofCarson'stoxicologywas more likelyto distractthejurythanto helpthem 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.

1144966 -8 -II 

### In a self -

defense case, the victim's reputation for violence may be admissible ifthe 

### defendant had knowledge ofthe victim's reputation atthe time ofthe 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 reasonablyfeared Carson would harm him. See Callahan, 87 

### Wn.App. at934; State v.Hixson, 94Wn.App. 862, 867, 973 P.2d 496 (1999). Evidence ofthe 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. 

### App. at 935 ( citing State v. Lord, 117 Wn.2d 829, 874, 822 P.2d 177 ( 1991)). Here, the 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 ahome ownerforten years, and no felony record should have been presented to thejury 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 

## anytendency to make the existence ofany factthat is ofconsequence to the determination of the action more probable or less probable than it would be without the evidence." ER at 401.

1244966 - 8 -II The fact that Miller was successful was not relevant. Because Miller admitted that he shot 

### Carson,the onlyquestions offactwere whether Milleracted with premeditation, andwhether he
acted in lawful self - defense. 

### According to thejury instructions, Miller could claim self - defense 

### only ifhe reasonably believedthat Carson intendedto inflict death or greatpersonal injury, ifhe 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 ofMiller's good character.

F. Silencer 

### Miller argues thatthetrial court erred by admitting evidence ofa 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, andthe trial court admitted two photographs ofthe 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. 

### App. at 593. . Here, Officer Rick Hughes testified to the 

### identity of the bottle, and the

1344966 - 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 thephotographs ofthe 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