### EJLED 

# COURT OFAPPEALS DIVISION 2015 

### APR 14 

### AN 9: 50 IN THE COURT OF APPEALS OF THE STATE OF WASIf DIVISION II Y
STATE OF WASHINGTON, Respondent,

v. SOL NATHANIEL GROVER, Appellant. No. 45319 - 3 -II

UNPUBLISHED OPINION
MELNICK, J. — 

### Sol Grover appeals hisjury conviction for assault in the third degree. He argues thatthe 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 ofthe 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 arider. 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 

### transitproperty. Grover acted in a condescending mannertowards Lucas and told him thatLucas had no authority to make Grover leave the bus stop. Lucas called dispatch and asked for law45319 - 3 -II


### enforcement assistance. As Lucas made the phone call, Groverstood up and punched Lucas inthe face, causing him to move a few steps to the right. 

### Lucas sustained abloody mouth and aswollen 

### 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 itwas assault. 

### Grover claimed self -

defense andtold thejurythat 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 ofthe 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 thejury that it is the sole determiner of credibility, and that it needed to decide which ofthe two versions ofthe incidentthejury found credible: Lucas' s version which presents

an assault, or Grover' s version which presents self - defense. Grover objected that the State' s argument shifted the burden. The trial court overruled the objection, but invited Grover to renew 

### his objection ifhe deemed it appropriate. The State continued with closing argument and Grover obj ected:

The State]: 

### Credibility. The problem withthe defendant'sversion isthat interms ofthe physical evidence that you have here, itjust doesn't work, and could that be more obvious? He —

### I mean, put simply, he has absolutely no explanation forthe injury, none.

245319 - 3 - II

Grover]: 

### Your Honor, I' m going to renewthe 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 thejury determine credibility, which is the issue here. II RP at 278 -79. Grover did not object to the trial court' s statement. 

### Thejuryfound Grover guilty ofassault inthe third degree. Groverappeals. ANALYSIS I. STANDARD OF REVIEW 

### Article IV, section 16 ofthe Washington constitution prohibitsjudges 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 onthe evidence in order "to preventthejuryfrom being unduly influenced bythe 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 ofthejudge's personal attitudes toward the merits ofthe 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).

345319 - 3 -II

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 ofdetermining ifthe State had proved the charge beyond a reasonable doubt.' Br. ofAppellant 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 ofwhat transpired and the physical evidence, and because of his intoxication. In ruling on the objection,there is nothing in the trial court's statementthat can be construed or interpreted as conveying the trial court's attitude toward the merits ofthe case. 

### Instead,the trial court simply ruled based onwhythe State could argue its theory ofthe case. The trial court' s statement neither expressed its attitude toward the merits ofthe case nor provided an opinion regarding who was credible. 

### Therefore, the trial court simply provided a reason for its ruling. We holdthatthe 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." State v. Kindell, 181 Wn.App. 844, 849, 326 P. 3d 876 (2014). Even though the Grover did not object to the trialjudge' s ruling, which he now claims constitutes a comment on the evidence, we will review it. 445319 - 3 -II

We affirm. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, butwill be filed forpublic record in accordance with RCW 2.06.040, it is so ordered.

We concur:

5