The State of Washington, Respondent, v. Donovan Ben Patrick Allen, Petitioner, 159 Wash. 2d 1

¶1 — We are asked to determine whether any rational trier of fact could have convicted Donovan Allen of aggravated first degree murder upon the evidence properly admitted in this case. Allen confessed to killing his mother but challenges, among other things, the sufficiency of the evidence that this killing was premeditated and aggravated by robbery. We affirm. Chambers, J. FACTS ¶2 About a month after Sharon Cox was killed in her Longview home, her son Allen told a police detective that he had attacked and killed his mother.

Because he challenges the sufficiency of the evidence, we will recount some of that evidence in detail. He told the police: Detective Davis: .... Can you tell me what happened when you got to her house? Mr. Allen: We just started arguing about me getting to work on time, how I could lose my job, and me and my kids be [sic] on the street. We started arguing about that and it just blew up. 6 Report of Proceedings (RP) (Trial 2) at 1034-35. He told the police it began as an argument and became physical. Id. at 1035-36. He recounted that: We wrestled a little bit. She pushed me back.

She kept pushing and pushing and pushing. Into the bedroom. Argued more. She pushed me back. (Inaudible) me and fell against the bed. I stand back up and (inaudible) and lost it. I totally went blank and went ballistic and I had no control. We wrestled. And I was using my [telephone] cord against my mother. I strangled her with it. Id. at 1036-37. He continued: It snapped. Then we fought a little more. She was still alive. She tried to take off again. I just turned around and went in the gun cabinet. I just grabbed my rifle. I swung it twice. Detective Jacobs: Where did you swing that rifle at? Mr.

Allen: Her head. It flew out of my hands when the rifle connected, the stock broke. I took the rifle, cleaned it up. It had a little bit of blood on the stock. Id. at 1039-41. Detective Davis: .... And then what did you do next? Mr. Allen: Went back in the house. Detective Davis: And what did you do after you went back into the bedroom? Mr. Allen: Found the cash box. Picked it up. I left with it. I walked out of my mom’s house. I went (inaudible) to Washington Way going to the slough. Then I realized what I had done, and I threw the cash box as hard as I could at the slough, and then ran like hell back.

I sat at the fireplace and then started (inaudible) what happened and ran to my mom. I checked for a pulse .... I don’t know whether she was alive or not. Id. at 1041-43. ¶3 Allen was charged with aggravated first degree murder, with robbery as the aggravator. Allen successfully moved to exclude some evidence he believed was unfairly prejudicial, including a statement he made in a restaurant rest room to his friend and occasional overnight house guest, Chris Smith, “that he has killed before and can do it again.” Clerk’s Papers (CP) at 124.

The first trial ended with a hung jury. ¶4 In the second trial, the trial judge renewed the exclusion of Allen’s statement that he had killed before and could kill again. However, the jury heard a taped interview where Allen admitted killing his mother in a rage. Bonnie Walker, the mother of Allen’s child, also testified that Allen had reacted violently to his own mother in the past. Walker said he once “had blown up at somethin’ that his mother said to him, and destroyed our apartment. ...

He was throwin’ stuff around. . . . [H]e punched holes in the wall and kicked a couple holes in the wall.” 3 RP (Trial 2) at 562. ¶5 On direct examination of Smith, the following exchange took place: State: And was there one point after [Allen] talked with the police where he made a statement to you about killing? Smith: Uh-huh. State: What did he say? Smith: That he had killed before and he could kill again. 5 RP (Trial 2) at 911. Allen moved for a mistrial based on that exchange, arguing that it violated the exclusion order.

After reviewing the trial court’s oral exclusion order, the State acknowledged it had inadvertently violated the exclusion order but argued that the “killed before” statement was nevertheless admissible as a declaration against penal interest and therefore Allen was not prejudiced. The trial court agreed. The jury convicted Allen of aggravated first degree murder. ¶6 Allen was sentenced to life in prison without parole. The Court of Appeals affirmed (State v. Allen, noted at 126 Wn. App. 1017 (2005)), and we granted review (State v. Allen, 155 Wn.2d 1018 (2005)). ANALYSIS A.

Sufficiency of the Evidence ¶7 It is first degree murder to cause the death of another person with premeditated intent to kill. RCW 9A.32-.030(l)(a). It is aggravated first degree murder to commit first degree murder with any of the aggravating circumstances listed in RCW 10.95.020. One of those aggravators is robbery. RCW 10.95.020(ll)(a). ¶[8 Allen does not challenge the jury’s conclusion that he killed Cox. Rather, he challenges the sufficiency of the evidence that he premeditated the killing or committed it in the course or furtherance of a robbery.

To prevail, he must show that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Finch, 137 Wn.2d 792, 835, 975 P.2d 967 (1999); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). 1. Premeditation ¶9 We turn first to his argument that there was insufficient evidence of premeditation.

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.” ’ ” Finch, 137 Wn.2d at 831 (quoting State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995) (quoting State v. Gentry, 125 Wn.2d 570, 597-98, 888 P.2d 1105 (1995); State v. Ortiz, 119 Wn.2d 294, 312, 831 P.2d 1060 (1992))). It must span more than a moment in time. RCW 9A.32.020(1).

Allen argues here that he lacked premeditation because he never expressed a preconceived intent to kill, he did not take weapons to his mother’s home, and he himself was shocked at how their heated argument escalated into violence. ¶10 We find sufficient evidence of premeditation to uphold the jury’s verdict. First, a physical struggle over “an appreciable period of time” prior to strangulation is sufficient evidence of premeditation. State v. Harris, 62 Wn.2d 858, 868, 385 P.2d 18 (1963).

Allen’s altercation with his mother went from the kitchen to the bedroom and involved pushing and wrestling before escalating to strangulation. 111 Second, injuries inflicted by various means over a period of time can support a finding of premeditation. State v. Bingham, 105 Wn.2d 820, 825-26, 719 P.2d 109 (1986). The record shows that Allen used such “various means” of injury — first wrestling, then strangling with a phone cord, and finally beating with a rifle.

Sufficient evidence of premeditation may also be found where the weapon used was not readily available, where multiple wounds are inflicted, or where the victim was struck from behind. Gentry, 125 Wn.2d at 599. Here, the rifle used to beat Cox was not readily available. Allen retrieved it from a cabinet after the telephone cord snapped.

Also, Cox’s strangulation marks and fractured skull may be viewed as “multiple wounds.” Finally, the fact that Cox was struck from behind is evidence of Allen’s premeditation. ¶12 A rational jury could find beyond a reasonable doubt that Allen had the premeditated intent required for first degree murder. Therefore, we affirm the Court of Appeals conclusion that evidence of premeditation was sufficient to support the jury’s verdict. 2.

Robbery f 13 A person is guilty of aggravated first degree murder if he commits first degree murder “in the course of, in furtherance of, or in immediate flight from” robbery in the first or second degree. RCW 10.95.020(ll)(a).

A person commits robbery when he “unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person.” RCW 9A.56.190. “Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking.” Id. (emphasis added).

Thus, to establish the aggravating factor of robbery in this case, the State had to prove beyond a reasonable doubt that Allen: (1) took the cashbox from his mother’s person or in her presence (2) against her will and (3) used force or fear to take the cashbox or to prevent his mother from resisting the taking. ¶14 We find considerable circumstantial evidence that Allen used force, at least in part, to obtain the cashbox.

In addition to the argument between Allen and Cox regarding Allen’s financial difficulties shortly before the murder and the testimony of Cox’s husband regarding Cox’s concerns over Allen’s financial difficulties, another witness testified that Allen went through his money quickly and was often broke a week before payday. Cox’s husband also testified that Allen had asked Cox for $400 to buy a car but she refused. Allen, before the murder, had told a friend that his mother had a cashbox. Further, the cashbox was taken shortly after the murder and found nearby.

In addition, after the murder, Allen told a cell mate that he took the cashbox after killing Cox, that it had about $1,100 in it, and that he had spent the money. Cox’s husband testified that on the day of the murder the cashbox held approximately $1,500. There is sufficient evidence to affirm the jury’s verdict. B. Improper Testimony f 15 Allen moved for a mistrial, and then later for a new trial, on the ground the State violated a pretrial order excluding Allen’s out of court statement that he had “killed before and could kill again.” CP 121-26; 5 RP (Trial 2) at 914, 943, 948.

We review the trial court’s denial of such motions for abuse of discretion. State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000) (motion for a mistrial); Finch, 137 Wn.2d at 839 (prosecutorial misconduct); State v. Wilson, 71 Wn.2d 895, 899, 431 P.2d 221 (1967) (motion for a new trial). Discretion is abused when the judge’s decision “is manifestly unreasonable or based upon untenable grounds.” State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).

Thus, we must decide whether the trial court abused its discretion when it determined the prosecutor’s improperly elicited testimony, when viewed against the backdrop of all the evidence, did not deprive Allen of a fair trial. State v. Post, 118 Wn.2d 596, 620, 826 P.2d 172, 837 P.2d 599 (1992). ¶16 Allen calls our attention to the fact that the jury in his first trial both did not hear that statement and was unable to reach a verdict, while the second jury both heard the statement and convicted him.

The State calls our attention to other differences between the two trials, including damaging testimony of a witness named Cory Opp that was stricken from the first trial but not the second. ¶17 We in no way countenance violations of pretrial exclusion orders. But the trial court properly found that the statement was admissible as a statement of a party opponent and that Allen was not prejudiced by the admission of an admissible statement. See ER 801(d)(2)(i). Given that, and given the other overwhelming evidence of guilt, we cannot say the trial court abused its discretion in denying Allen’s motions.

CONCLUSION ¶18 We hold that the State presented sufficient evidence to support the jury’s verdict that Allen’s killing of his mother was premeditated and aggravated by robbery and that the trial judge did not err by denying the motions for a mistrial and new trial. We affirm. Madsen, Bridge, Fairhurst, and J.M. Johnson, JJ., concur. Allen initially also was charged with felony harassment and intimidating a witness but was not convicted. Gerald Cox, the victim’s husband, testified that their only telephone was a cellular phone and he was unaware of any phone cord in the home.

This suggests, although not conclusively, that Allen did bring to his mother’s home the cord that he said he used to strangle her. Intent to steal is also an essential element of robbery. State v. Kjorsvik, 117 Wn.2d 93, 98, 812 P.2d 86 (1991) (citing State v. Hicks, 102 Wn.2d 182, 184, 683 P.2d 186 (1984)). Allen argued that “he did not even realize what he was doing with the cashbox, evidencing a lack of intent to steal.” Opening Br. of Appellant at 13.

However, there was sufficient evidence presented for the jury to conclude otherwise, including the fact that Allen and Cox were arguing about money when he killed her. We largely agree with the dissent. “Merely demonstrating that the use of force preceded the theft does not amount to robbery.” Dissent at 12 (footnote omitted). But as surveyed above, there was sufficient evidence presented for a reasonable jury to find that robbery was one of Allen’s purposes for killing. A reasonable jury could also have found, as the dissent would, that taking the cashbox was an afterthought. This one did not.

It appears the violation was accidental. 5 RP (Trial 2) at 930. Opp testified that Allen took him into a restaurant bathroom, held him against the wall, told him about the murder of Cox, and then “told me if I said a word he’d kill me.” 5 RP (Trial 2) at 952. Opp also admitted having problems with his memory. Id. at 954.