(dissenting).
I respectfully dissent. The circumstantial evidence in this case does not lead unerringly to the conclusion that Palmer considered, planned, or prepared for the victim’s death. I would reverse Palmer’s conviction of first-degree premeditated murder and remand to the district court to vacate Palmer’s life sentence and resen-tence him for second-degree intentional murder.
The distinction under Minnesota law between first-degree murder and second-degree murder is significant. To convict Palmer of first-degree premeditated murder, the prosecution was required to prove beyond a reasonable doubt that Palmer killed Moss with (1) intent to cause his death, and (2) premeditation. Minn.Stat. § 609.185(a)(1) (2010). Premeditation has been defined by the Legislature to mean “to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission.” MinmStat. § 609.18 (2010). It is the element of planning or preparing to murder that transforms a second-degree intentional murder, an offense punishable by a maximum sentence of 40 years in prison, to a first-degree murder, punishable by life in prison without the possibility of release.
In State v. Moore, we made clear that premeditation cannot occur virtually instantaneously with the intent to kill. 481 N.W.2d 355, 360-61 (Minn.1992). We determined that the State must prove “that, after the defendant formed the intent to kill, some appreciable time passed during which the consideration, planning, preparation or determination required by Minn. *742Stat. § 609:18 prior to the commission of the act took place.” Id. at 361. In other words, an intent to kill that is formed virtually instantaneously with the act of killing will not be sufficient to support a finding of first-degree premeditated murder. If we blur the line between first- and second-degree murder, we do not give effect to the distinction the Legislature made in “punishing persons convicted of the different crimes differently.” Id. It is the State’s burden to prove that there was some passage of time between the formation of the intent to kill and the act of killing, and that during this time the defendant considered, planned, or prepared for the act.
Evidence that a defendant considered, planned or prepared for, or determined to commit murder is almost always based on circumstantial evidence. We examine the defendant’s conduct, look at events before and at the time of the killing, and consider whether the circumstantial evidence, taken as a whole, leads unerringly to the conclusion that the murder was premeditated. State v. McArthur, 730 N.W.2d 44, 49 (Minn.2007); State v. Andersen, 784 N.W.2d 320, 332 (Minn.2010). I agree with the majority that we use a two-step analysis for deciding whether the circumstantial evidence was sufficient to prove premeditation. The first step is to “identify the circumstances proved, giving deference ‘to the jury’s acceptance of the proof of these circumstances.’ ” State v. Anderson, 789 N.W.2d 227, 241-42 (Minn.2010) (quoting Andersen, 784 N.W.2d at 329). The second step is to determine whether the circumstances proved are “consistent with guilt and inconsistent with any rational hypothesis except that of guilt.” Andersen, 784 N.W.2d at 330. The evidence “must point unerringly to the accused’s guilt.” McArthur, 730 N.W.2d at 49 (citation omitted) (internal quotation marks omitted).
The following circumstances may be evidence of premeditation: (1) planning activity; (2) motive; and (3) the nature of the Mlling. State v. Hughes, 749 N.W.2d 307, 313 (Minn.2008). We have referred to planning activity as “facts about how and what the defendant did prior to the actual killing” that show the defendant was “engaged in activity directed toward the killing.” Id. (citation omitted) (internal quotation marks omitted). Planning activity can include luring the victim to an isolated location and procurement of a murder weapon. Anderson, 789 N.W.2d at 242.
Palmer lived in Richmond and worked at Clearwater Cleaners in St. Cloud. He was longtime friends with Moss. They were both married and the father of two children. Palmer’s relationship with Moss included spending time with each other’s families. Around the time of the shooting, Palmer and his wife had been separated for several months. They were attempting to reconcile and, in the meantime, actively involved in raising their children.
Palmer had introduced Moss to Palmer’s younger brother, Da’Leino. Da’Leino was unemployed and homeless. He regularly used marijuana and also sold marijuana and other drugs. When Moss became acquainted with Da’Leino they regularly “hung out” at Moss’s home where the men would smoke marijuana together. They became involved in drug deals, with Da’Leino “fronting” drugs to Moss with the expectation that Moss would sell the drugs and then pay Da’Leino. Palmer knew about Da’Leino’s lifestyle and disapproved of it, but was determined to stay involved in Da’Leino’s life with the hope that he could be a positive force.
The relationship between Da’Leino and Moss deteriorated in the weeks before the shooting because Moss owed Da’Leino money for some drugs. Da’Leino tried *743unsuccessfully to collect the money and finally became desperate for it because he was receiving threats from his dealer. Da’Leino ultimately decided to enlist Palmer’s help in collecting the money from Moss.
On April 29, 2009, Da’Leino was scheduled to give Palmer a ride to work in St. Cloud using Palmer’s car. Palmer had loaned his car to Da’Leino with the understanding that Da’Leino would drive Palmer to and from work. Da’Leino telephoned Palmer in the morning, explained that Moss owed Da’Leino money, and then asked Palmer to speak to Moss about the debt. This was Palmer’s first notice that there was a problem between Moss and Da’Leino. Palmer’s relationship with Moss was stable at that time. In fact, just four days before the shooting, Palmer and his children were at the Moss residence without conflict or any trouble between Moss and Palmer. Palmer agreed to speak to Moss.
On the day of the shooting, Da’Leino picked up Palmer to drive him to work. Da’Leino was in possession of a ,22-caliber revolver. It was standard practice for Da’Leino to carry the loaded gun or have a friend carry it for him because he was a convicted felon. During the car ride Palmer loaded Da’Leino’s revolver with bullets he took from his own pocket. Palmer had the bullets in his pocket because the last time he was with Da’Leino he had removed the bullets from the gun and placed them in his pocket. Palmer had removed the bullets because he did not want to have a loaded gun around his children. Da’Lei-no had asked Palmer to return the bullets, so Palmer brought them along and reloaded the revolver. Palmer admitted wiping the bullets before loading the gun so as not to leave his fingerprints on them. He then placed the gun under the seat of the car, a usual location for the gun.
Palmer and Da’Leino drove to Moss’s duplex and waited about ten minutes for Moss to return home from picking his sons up at school. Da’Leino and Palmer went into the duplex with Moss. The revolver remained under the front seat of the car. The conversation quickly deteriorated into an argument over Moss’s debt to Da’Leino. Da’Leino stormed outside. Unbeknownst to Palmer, Da’Leino went to the car to retrieve the revolver, planning to scare Moss, or perhaps Moss’s neighbors. It was not entirely clear, but the evidence suggested that the neighbors had received some drugs from Moss without paying for them. Da’Leino tucked the revolver in the waistband of his pants and returned to the duplex.
Ultimately, the argument between the three men continued outside. According to a neighbor, the argument became “heated” and “loud.” At some point Da’Leino pulled the revolver out of his waistband. Moss responded by saying he was going to call the cops. Palmer said “no you aren’t,” grabbed the gun from Da’Leino and shot Moss five times. Telephone records indicated that Moss attempted to call the police but apparently he was shot and dropped the telephone before he could complete the call.
Immediately after the shooting, Palmer ran down the alley. He threw his hat into a bucket, took off his red sweatshirt, wrapped the gun in it, and put it into a garbage bag. He was apprehended soon thereafter.
The evidence in this case must be considered as a whole, not in isolation. See Andersen, 784 N.W.2d at 332. The evidence as a whole supports at least two equally plausible explanations for Palmer’s involvement in loading the gun. The fact that he wiped his fingerprints off of the cartridges before loading the cartridges into the gun may support the conclusion *744that he was “preparing for an illegal use of the gun” (as the majority claims). Another possible conclusion is that Palmer wiped his prints off the cartridges because he knew about his brother’s drug dealings and felony record and wanted to disassociate himself from his brother’s illegal activities generally. Preparing for a future illegal use of a gun does not amount to planning to use the weapon to murder someone.
The most plausible explanation for Da’Leino bringing the gun with him is that the gun was to be used to scare Moss or his neighbor, if at all. It was Da’Leino who testified for the prosecution that he retrieved the loaded gun from the car in the course of the argument in order to scare Moss. It is equally plausible, therefore, that Palmer did not anticipate that the gun would be used at all that day. It was Da’Leino himself who testified that Palmer didn’t know that Da’Leino had armed himself with the revolver. The revolver was left in the car, in a place where it was generally kept, with no preconceived plan by Palmer to use it.
As a backup theory, the prosecution in this case suggested that Palmer formed a plan to kill the victim in the moment before he began firing the gun, or in the span of two to five seconds after he began shooting. A span of two to five seconds, as a matter of law, is not an “appreciable” amount of time sufficient to conclude that the killing was planned. Even in those cases in which premeditation or planning activity occurred relatively quickly, there was much more time between the formation of the intent to kill and the act of killing. For example, in State v. Netland, 535 N.W.2d 328, 329-30 (Minn.1995), we noted that the jury could have inferred premeditation from evidence that the defendant forcibly entered the victim’s house, obtained knives from the kitchen, walked down the hall, and stabbed the victim. See also State v. Leake, 699 N.W.2d 312, 320 (Minn.2005) (finding premeditation where the defendant either brought a knife to the victim’s apartment, or he went into the kitchen, retrieved a knife, and then returned to the victim’s bedroom to kill her).
The majority cites to State v. Austin, 332 N.W.2d 21, 25 (Minn.1983), for the proposition that a defendant can premeditate a murder “in a short amount of time.” But that case does not support the conclusion that a defendant premeditates a victim’s murder in the instant before the defendant fires a gun or while a defendant is engaged in the act of shooting. In Austin, we found sufficient evidence of premeditation where after a gun fight in a bar, the defendant retreated to a bathroom, heard the victim talking outside of the bathroom, waited a few minutes, and then proceeded up a flight of stairs where he killed the victim. Id. at 23, 25.
Other circumstances are more consistent with the hypothesis that Palmer did not plan to shoot and kill his friend. He had a good relationship with Moss. He definitely exchanged angry words with Moss before the shooting. But all of the evidence suggested that Palmer and Moss had maintained a good relationship up until the time of the shooting. The relationship provided no explanation for the killing. On the contrary, the good relationship between the two men supports the reasonable inference that the killing was committed as a result of transitory anger.
The nature of the killing is consistent with an intentional killing. But there is nothing about the nature of the killing that demonstrates a preconceived plan to kill. In other words, the fact that Palmer pulled the trigger multiple times does not establish that he prepared for the shooting or considered or planned for it. The evidence is equally consistent with a shooting based on an unplanned, instantaneous, and rash decision.
*745I would conclude that the circumstantial evidence is equally consistent with a conclusion that there was no premeditation to kill. Therefore, the prosecution failed to prove beyond a reasonable doubt each element of first-degree premeditated murder. I would reverse Palmer’s conviction and remand to the district court for the entry of a judgment of conviction for the offense of second-degree intentional murder.