State Of Washington, V Sol Nathaniel Grover ( 2015 )

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SOL NATHANIEL GROVER, UNPUBLISHED OPINION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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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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