¶41 (concurring in part and dissenting in part) Except for the self-defense analysis, I agree *708with the majority in all respects. First, I note that because we must remand for a new trial, whether a self-defense or defense of others instruction4 is appropriate must be determined on the evidence produced at that trial, not this one. Accordingly, it is premature to address the alleged instructional error and I would not reach the propriety of a self-defense instruction. Also, much was made of the fact that the victim was a war veteran and we do not know his physical appearance from this record. It may be that, even unarmed, his size, training, and demeanor make him a deadly weapon and intimidating to others, and that the threat Ryna Ra believed he faced was more than “only an ordinary battery.” Majority at 707 (citing State v. Walker, 136 Wn.2d 767, 779, 966 P.2d 883 (1998)).
¶42 Moreover, taken in the light most favorable to the party requesting the instruction, Ra, the record shows that James Huff’s companions unsuccessfully attempted to stop Huff from approaching the sport utility vehicle (SUV), but that he shoved them aside and approached the SUV, yelling, “Let’s get out and fight.” 5 Report of Proceedings (RP) at 453. Ra testified that when Huff was 20 feet away, he fired a warning shot into the air, trying “to scare [Huff] off, but he was not scared, so [Ra] wouldn’t know how to defend [him]self after that.” 9 RP at 860. Huff kept coming, “jump-kick[ed] the car,” and was trying to open the door to get at Ra when Ra fired the shot into Huff’s chest. 8 RP at 812. This evidence indicates that Ra was trying to scare Huff off and, when that was not successful, he did not know how to defend himself except by shooting Huff. Whether this evidence is credible or what an ordinary reasonably prudent person would do under the circumstances as they appeared to Ra is an issue for the trier of fact. Here the trier of fact was the jury, not the trial court. The trial court’s weighing of the credibility of Ra’s testimony was error and, *709in my opinion on the evidence as it appears in this record, the jury should have been instructed on self-defense.
Review denied at 164 Wn.2d 1016 (2008).
11 Washington Practice: Washington Pattern Jury Instructions: Criminal 16.02, at 176 (2d ed. 1994).