¶49 (dissenting) To find premeditation, there must be at least circumstantial evidence “where the inferences drawn by the jury are reasonable and the evidence supporting the jury’s verdict is substantial.” State v. Bingham, 105 Wn.2d 820, 824, 719 P.2d 109 (1986) (citing State v. Luoma, 88 Wn.2d 28, 558 P.2d 756 (1977)). Because of the absence of evidence of premeditation in this record, I would reverse.
*488¶50 The cases relied upon by the majority share two characteristics: the defendant’s use of some instrument in accomplishing the act of murder and specific fatal injuries. Neither characteristic is present here.
¶51 For instance, in State v. Allen, 159 Wn.2d 1, 5-6, 8-9, 147 P.3d 581 (2006), the defendant first wrestled with and then strangled the victim, using a telephone cord until it broke, and then he got a rifle from a cabinet that he used to strike the fatal blows. This shows sufficient evidence of premeditation — a deliberate formation of and reflection upon the intent to take the victim’s life. When there is evidence of a decision to use a weapon, particularly in escalation of a hand-to-hand struggle, the jury can infer that the user identified some purpose and consequence of the weapon’s use, which shows deliberation. But there is no such evidence in the case before this court. Kenith Wayne Sherrill could have picked up any number of objects in the cluttered motor home to use as a weapon. But he used nothing. “[Standing alone, multiple wounds and sustained violence cannot support an inference of premeditation.” State v. Ortiz, 119 Wn.2d 294, 312, 831 P.2d 1060 (1992).
¶52 The absence of a weapon is also particularly significant in this case when considering the slight stature of both Mr. Sherrill and Teressa Hilton. I can envision cases of premeditation where no weapon is used but a defendant’s size outmatches the victim and there is sustained violence with specific, devastating injuries. But that is not the case here.
¶53 On direct examination of forensic pathologist Dr. Gina Fino, the State asked whether internal bleeding of the brain is “in and of itself a life threatening situation.” Report of Proceedings (RP) (Feb. 2, 2006) at 229. Her response was open ended: “Depending upon which parts of the brain are involved, yes.” Id. When addressing Ms. Hilton’s specific injury, Dr. Fino described it as something one would see in “low speed or low impact vehicle type crashes.” Id. In response to questioning as to whether the amount of blood that had collected in Ms. Hilton’s chest was significant, Dr. *489Fino stated that it was “a moderate loss of blood.” Id. at 233. Dr. Fino was asked whether the internal bleeding in the chest cavity was “something that in and of itself would be life threatening to a person.” Id. Dr. Fino responded that it was because with “blood . . . irritating the chest cavity, it’s going to cause a decreased ability to breathe.” Id. The State questioned Dr. Fino regarding whether the laceration on the edge of the liver is “in and of itself potentially a life threatening injury.” Id. at 235. Dr. Fino responded that it was, mainly because such an injury “causes bleeding and loss of blood, [which] decreases the amount of nourishment that gets to the tissues.” Id. at 236.
¶54 It is also noted that Ms. Hilton had a dangerously high blood/alcohol level of 0.32 grams per 100 milliliters, which can be judicially noted under ER 201(b) to be within the fatal range. E.g., 4 Roscoe N. Gray & Louise J. Gordy, Attorneys’ Textbook of Medicine ¶ 134A.82 (3d ed. 1988); see also State v. Smissaert, 41 Wn. App. 813, 815, 706 P.2d 647 (1985) (holding that the effects of alcohol are commonly known).
¶55 In State v. Harris, 62 Wn.2d 858, 868, 385 P.2d 18 (1963), the victim “had been struck on the head several times with a blunt instrument with such force that in one place her skull had been fractured into her brain.” The victim was also strangled with a garrote fashioned from a vacuum cleaner cord and handle. Id. at 860. While strangulation was the immediate cause of death, the victim would have died as a result of the skull fracture. Id. at 860-61. In this case, none of Ms. Hilton’s injuries were, on their own, specific or devastating.
¶56 The absence of an identifiable coup de grace separates the injuries in this case from those that might be found in a premeditated beating death. None of Ms. Hilton’s injuries, alone or together, can be viewed as being struck with such brutal force to show that they were borne of “ ‘deliberate formation of and reflection upon’ ” the intent to take Ms. Hilton’s life. State v. Gentry, 125 Wn.2d 570, 597, *490888 P.2d 1105 (1995) (quoting State v. Robtoy, 98 Wn.2d 30, 43, 653 P.2d 284 (1982)).
¶57 As noted in Harris, “ ‘[P]roof of the fact of killing, alone, does not raise a presumption of premeditation or deliberation, but premeditation or deliberation may be inferred from the circumstances of the killing.’ ” Harris, 62 Wn.2d at 868 (quoting State v. Gaines, 144 Wash. 446, 467, 258 P. 508 (1927)). The challenge in the case before us is to discern premeditation from the circumstances of the fatal beating apart from the death itself. There is nothing to be found.
¶58 In Bingham, the evidence showed three to five minutes were required to manually strangle the victim. Bingham, 105 Wn.2d at 824. The Supreme Court found the evidence of the strangulation alone insufficient. Id. at 827. The court held:
[T]o allow a finding of premeditation only because the act takes an appreciable amount of time obliterates the distinction between first and second degree murder. Having the opportunity to deliberate is not evidence the defendant did deliberate, which is necessary for a finding of premeditation.
Id. at 826 (emphasis added).
¶59 Here, Mr. Sherrill had an opportunity to deliberate but the evidence does not establish facts from which an inference of deliberation can be found. The majority does not point to any evidence of premeditation but determines the jury could have concluded that the evidence existed anyway. Bingham requires us to ask, did the premeditation occur? not could the premeditation have occurred?
¶60 Because Mr. Sherrill did not use counsel and participated precious little in his own defense, it is easy to see how the jury could be swayed by the one-sided presentation. But the State limited its closing argument to the opportunity for premeditation and the sustained violence:
Ladies and gentlemen, when you consider this and all the evidence, there is no question but that the defendant was able *491to engage in the cognitive process to build an intent to kill, which clearly took more than a moment in time. . . .
What do we know about the situation as it was? Was there an accident? Not 42 times. Was there any showing of anything other than traumatic force that was intentionally and volitionally applied after having ample time to stop? But not stopping, hitting and continuing to hit and killing, killing in ways where there are three major traumatic injuries.
RP (Feb. 7, 2006) at 507-09 (emphasis added).
¶61 The jury was instructed that in order for premeditation to be found, the law requires evidence of deliberation to form an intent to take human life and some time, after the formation of the settled purpose, in which a design to kill is deliberately formed. The evidence here shows three traumatic injuries, none of which were individually fatal, that occurred over some time and took place in a number of rooms while the victim was both standing up and lying on the ground. This evidence does not show the formation of a design to kill by the infliction of multiple blows to various parts of a victim’s body. It does not seem logical to plot the death of another in this manner.
¶62 While I am struck and sickened by the evidence of violence in this case, viewing that evidence in the light most favorable to the State, it is insufficient from which a reasonable jury could infer that Mr. Sherrill formed the intent to beat Ms. Hilton to death with his bare hands. Because I find insufficient evidence to establish premeditation, I would reverse.
Review denied at 165 Wn.2d 1022 (2009).