¶1(dissenting) — I would reinstate the aggravated first degree murder conviction of defendant. Sufficient evidence was presented on premeditation for that issue to be submitted to the jury. The decision on that issue is the function of the jury; not to be taken away.
¶2The standard for reviewing the sufficiency of evidence in a criminal case is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements . . . beyond a reasonable doubt." Majority opinion, at 823 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)). The evidence is to be viewed in the light most favorable to the State. Green, at 221. The issue of premeditation should only have been taken from the jury if there was no evidence or reasonable inferences therefrom which would sustain the jury's conclusion that the defendant acted with premeditation.
¶3State v. Griffith, 91 Wn.2d 572, 574-75, 589 P.2d 799 (1979) stated:
A defendant is entitled to have his theory of the case submitted to the jury under appropriate instructions when the theory is supported by substantial evidence in the record. If any one of the theories argued by defendant was supported by substantial evidence, it should have been submitted to the jury.
¶4*829(Citations omitted.) The same should hold true for the State's theory. Instruction 8 on premeditation given by the trial court is as follows:
Premeditated means thought over beforehand and describes the mental operation of thinking upon an act before doing it. Premeditation necessarily implies that some time exist between the thought process and commission of the act itself. By this is meant that premeditation cannot occur simultaneously with the act but must precede the act. When a person, after any deliberation, forms an intent to take human life, the killing may follow immediately after the formation of the settled purpose and it will still be premeditated. Premeditation must involve more than a moment in point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed.
¶5Clerk's Papers, at 175. This instruction, in part, reflects current statutory and case law. See RCW 9A.32.020(1); State v. Brooks, 97 Wn.2d 873, 876, 651 P.2d 217 (1982); State v. Tikka, 8 Wn. App. 736, 740, 509 P.2d 101 (1973); see also WPIC 26.01 (1977).
¶6The element of premeditation distinguishes first and second degree murder. Brooks, at 876. When a killing is *830admitted by a defendant this leads to a presumption of murder in the second degree. State v. Sill, 47 Wn.2d 647, 650, 289 P.2d 720 (1955); State v. Scheeler, 45 Wn.2d 661, 663, 277 P.2d 341 (1954). The burden is on the State to prove the requisite elements of first degree beyond a reasonable doubt.
¶7The majority states "no evidence was presented of deliberation or reflection before or during the strangulation, only the strangulation. The opportunity to deliberate is not sufficient." Majority opinion, at 827. "[W]e find manual strangulation alone is insufficient evidence to support a finding of premeditation." Majority opinion, at 828. These statements ignore numerous items of evidence which corroborate the presence of premeditation. I believe a review of the record compels the conclusion that there was sufficient evidence for the jury to conclude that the defendant acted with premeditation. The evidence meets the required standard since it could lead a rational trier of fact to find the essential elements of first degree murder beyond a reasonable doubt. The rule announced by the majority seems to be that premeditation must take place before the commencement of the act that results in death. Take the farmer's son who begins to fill the bin with wheat as a joke on his brother sleeping at its bottom. Then, realizing that he will inherit the whole farm if he persists, he does so and causes his brother's death. He had time to premeditate and did so in the middle of the act. He has committed aggravated first degree murder. That a murderer originally commenced an act without intending death does not grant him a carte blanche to persist when he realizes that to do so will kill his victim.
¶8The Washington cases concerning premeditation include State v. Smith, 12 Wn. App. 720, 531 P.2d 843 (1975), aff'd, 88 Wn.2d 127, 559 P.2d 970, cert. denied, 434 U.S. 876 (1977); State v. Harris, 62 Wn.2d 858, 385 P.2d 18 (1963); and State v. Gaines, 144 Wash. 446, 258 P. 508, cert. denied, 277 U.S. 81 (1928); see also State v. Tikka, supra.In Smiththe defendant was found guilty of the first degree *831murder of his young son. A finding of premeditation was justified because of the circumstances surrounding the young boy's death by drowning. The Court of Appeals opinion stated at page 732 as follows:
For premeditation to be inferable by the jury, there must have been a period of time during which the intent to kill is deliberated. This time may be very short provided it is an "appreciable period of time." Looking at the circumstances surrounding the child's death, it is clear that an appreciable period of time did elapse. As recognized by our State Supreme Court, choking takes an appreciable time.
¶9(Citations omitted.)
¶10The majority argues that " [t]he Smithfacts could also be found to reflect a deliberated decision to kill the child by holding the child's head under water." Majority opinion, at 825. Likewise, the facts in this case could be found to reflect a deliberated decision to kill Leslie Cook by applying between 3 and 5 minutes of continuous and steady pressure to her neck. The act of strangulation inflicted by the defendant upon the deceased is considerably more than just the "[h]olding [of] a hand over someone's mouth or windpipe ..." See majority opinion, at 826. The testimony of Dr. Donald Reay, Chief Medical Examiner for King County, who performed the autopsy on Leslie Cook, is illuminating as to what is necessary to effect death by manual strangulation.
Q Doctor, based upon your examination of the deceased, did you come to an opinion as to her cause of death?
A Yes, I did.
Q And what is that opinion?
A I attributed death to manual strangulation, with injuries to the neck and evidence of spaces of blood and death attributed to asphyxiation through manual strangulation.
Q Doctor, when you say manual strangulation, you mean the hands?
A Yes, correct.
Q Okay, now how long does it take someone to die by manual strangulation, doctor?
*832A Ordinarily the process will take three to five minutes.
Q And what sort of force or what sort of action is required during that three to five minutes period?
A The requirement is to stop the blood flow to the brain and at the same time prevent a person from breathing. The result is that they become oxygen deficient and the heart is sensitive over a period of time and leads to lack of oxygen that develops an abnormal rhythm which proceeds to death.
Q Doctor, does unconsciousness come before death in a case of manual strangulation?
A Oh, yes. Yes.
Q And how long does it take before someone is unconscious, do you know?
A If a well placed hold about the neck, it can take a matter of seconds. We have done some tests where a person becomes unconscious in a matter of six to seven seconds, if the vessels are pinched in a very quick fashion.
Q And death ensues within three to five minutes?
A Yes, that may be unconsciousness, but if the pressure is released the person will wake up. It's a hold that some times is used by law enforcement, but if the pressure is sustained then the brain goes without oxygen and in addition the airways collapse over the lungs and heart go without oxygen and there are deficits building up which affect the heart and it starts to develop abnormal beats or rhythms and eventually leads to death.
Q Doctor, does this sort of asphyxiation by manual strangulation in this instance, does it take a steady pressure for that three to five minute period?
A Yes, the pressure can vary, certainly, but the important thing is to include the airway and the arterial supply. One or the other will effectively do it.
Q Doctor, how is it that the hyoid bone becomes fractured?
A The hyoid bone is a "U" shaped, almost a wishbone type of structure in the neck. It's the open part of the "U" is facing rearward and as the front of the neck is squeezed that is caught, pinched, and eventually the wing of it cracks.
Q Does that fracture of the hyoid have any ramifications with regard to the windpipe?
*833A It is part of the structures in the neck. Its real value is because it does represent, or does demonstrate that pressure was applied to the neck. It is in the immediate area of the windpipe and certainly when that is broken that is pretty good evidence that the airway was collapsed.
Q For a three to five minute period?
A Yes. In addition to the airway itself there is also the tongue, which is pushed backwards, rearwards. When that happens the tongue goes back up against the roof of the mouth, in the process of forcing it upwards and that adds to it, so there is the occlusion in addition to the squeezing, there is also the pressure upwards, which occludes it.
¶11Report of Proceedings, at 14-16 (Oct. 18, 1982).
¶12The other cases cited by the majority, State v. Harris, supra,and State v. Gaines, supra, both involve a beating and a choking. This court said:
It is true that proof 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.
¶13(Italics mine.) Harris, at 868 (quoting Gaines, at 467).
¶14Here it can be inferred that the defendant thought about the consequences as he choked his victim. The period of premeditation might not have been during the initial squeeze, but the evidence of premeditation certainly was present in the continued application of force, knowing it would bring about death.
¶15The evidence needed to prove premeditation is likely to be circumstantial and such evidence suffices
where . . . the inferences drawn by the jury are reasonable and the evidence supporting the jury's findings is substantial. Although there was no direct proof of intent, premeditation may still be found where intent is logically inferred from the facts of the crime.
¶16State v. Luoma, 88 Wn.2d 28, 33, 558 P.2d 756 (1977). A review of the pertinent circumstances surrounding Leslie Cook's death is required. The evidence indicates that the defendant and the deceased did not know each other prior *834to the day of the killing. They met on the bus to Sequim. Later that day the deceased wished to return to Port Angeles. The defendant took the deceased toward the infrequently traveled Old Olympic Highway purportedly to hitchhike to Port Angeles. The defendant took the deceased to a secluded location where he raped her. He then used his bare hands to strangle her. It took between 3 to 5 minutes to effect death. After the killing he bit the breasts of the deceased. He left the body in the secluded location exposed to the winter elements. There is no evidence of passion, provocation or struggle reflected in the record. Indeed, there is more here than the mere opportunity to deliberate. There is adequate evidence for the jury to find that he did form a design to kill.
¶17We turn to the decisions of other jurisdictions. In Hounshell v. State, 61 Md. App. 364, 372, 486 A.2d 789, cert. denied, 303 Md. 42, 491 A.2d 1197 (1985), the court stated:
[Djeath by strangulation does not in and of itself establish first degree murder. . . . Whether the time required to produce death by strangulation is sufficient for the assailant to reflect upon his actions before death ensues is a matter for the jury to determine.
¶18(Italics mine.) In Hounshell, the facts were similar to the case at bar. The evidence indicated that defendant had been with the deceased on the night of her death, that the deceased had died from manual strangulation, and that the deceased had semen in her mouth. The jury found the defendant guilty of first degree premeditated murder. On appeal the conviction was affirmed.
Logic and common sense dictate that for one person to strangle another person to death, a significant length of time must pass for the victim to die. This time period in which the perpetrator must continuously exert sufficient force on the victim's throat to block the victim's breathing affords the perpetrator a significant opportunity for reflection and a change of heart.
. . . The court specifically stated that strangulation in and of itself does not constitute first degree murder and *835that the manner of killing was only one circumstance for the jury to consider in reaching its verdict. . . .
. . . [I]n the present case, the jury could have determined beyond a reasonable doubt that appellant made a premeditated decision to commit murder within the interval of time it took him to initiate and then ultimately complete the act of strangulation.
¶19Hounshell, at 375, 377-78.
¶20In Houck v. State, 563 P.2d 665, 668 (Okla. Crim. App. 1977), the deceased was found with a pillowcase wrapped tightly around his neck. The court found the fact that the strangulation took several minutes to cause the death of the victim, according to a forensic pathologist, was sufficient to raise an inference of premeditation. While Houckis not a first degree murder case, it is relevant in that premeditation is a necessary element of second degree murder in Oklahoma. The court in Freeman v. State, 240 Ark. 915, 403 S.W.2d 61 (1966) found the defendant guilty of first degree murder in the strangulation of the deceased. During the strangulation the defendant used a Venetian blind cord rather than his hands. The State presented no direct evidence as to premeditation. The court held that deliberation, premeditation and intent may be inferred from the circumstances which portray a cruel and brutal strangulation. The Missouri Supreme Court affirmed the first degree murder conviction of the defendant in State v. Sturdivan, 497 S.W.2d 139 (Mo. 1973). The court stated at page 142:
Premeditation may be reasonably inferred from the bare hand strangulation of defendant's victim and the subsequent application of the towel for two or three minutes longer to make sure he was dead. There was no evidence of passion or provocation, . . . disturbances, or struggle. . . . With evidence of provocation lacking, the previously demonstrated intent to kill [as shown by the act of manual strangulation followed by the act of wrapping the towel around the victim's neck] provided deliberation;
¶21Regarding the type of circumstantial evidence that is relevant to the issue of premeditation, the court in People v. Irby, 129 Mich. App. 306, 323, 342 N.W.2d 303 (1983), *836leave to appeal denied, 418 Mich. 951 (1984) listed the following nonexclusive factors pertinent to establish premeditation: (1) A prior relationship showing motive; or (2) a murder weapon acquired and positioned as an indication of preparation; or (3) evidence which supports an inference the killer transported the victim to a secluded location for an illicit or criminal purpose; or (4) circumstances suggesting premeditation and deliberation; or (5) subsequent organized conduct which suggests the existence of a plan. The facts in Irbyindicate the 15-year-old defendant and the deceased entered into consensual sexual relations. Following the sexual activity something "came over him" and he strangled the victim to death with his bare hands. Thereafter, he moved the deceased, cleaned up the body and placed it in a garbage can. He later made the statement that some boys in a car dropped the body off at his house for disposal. The court upheld defendant's first degree premeditated murder conviction.
We agree with defendant that the trial court erred in holding that the element of premeditation was prima facie shown by evidence of manual strangulation alone.
. . . Nevertheless, . . . [t]he evidence of manual strangulation and defendant's subsequent actions after the victim's death do support a prima facie case of first-degree premeditated murder . . .
¶22Irby, at 323. State v. Faust, 254 N.C. 101, 107, 118 S.E.2d 769, 96 A.L.R.2d 1422, cert. denied, 368 U.S. 851 (1961) states:
Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are: Want of provocation on the part of deceased. The conduct of defendant before and after the killing.
¶23(Citations omitted.) In the case at hand the evidence is that the defendant left his victim lying exposed in the field in Clallam County in winter and the evidence also supports the inference that the defendant transported his victim to this secluded spot for an illicit or criminal purpose.
¶24The circumstances of Leslie Cook's death are replete *837with evidence besides the manual strangulation which raise the inference the defendant did premeditate: (1) the defendant took the deceased to a secluded location; (2) the defendant raped the deceased; (.3) the time that is necessary to cause death by strangulation; (4) the defendant had plenty of opportunity to desist after the deceased lapsed into unconsciousness, but nevertheless, he chose to continue to strangle Leslie Cook to death; (5) there is no evidence of provocation; (6) the defendant is a large man and there is little sign of struggle; and (7) the defendant hit the breasts of the deceased and left the near-naked body exposed to the winter elements. The jury heard the testimony of Dr. Reay that it takes 3 to 5 minutes to effect death by manual strangulation. Continuous and steady pressure on the victim's neck is required. The amount of pressure required is sufficiently greater than the amount required to keep someone from crying out. The strangulation of Leslie Cook was cruel and brutal. The jury would be justified in concluding from the circumstances of this case that the death was not the result of an impulsive or spontaneous act flowing from an attempt to overcome resistance or to effect sexual contact and that the defendant chose to kill in order to silence his victim and conceal a rape.
¶25Judge Alexander's dissenting opinion in State v. Bingham, 40 Wn. App. 553, 699 P.2d 262 (1985) states the proposition well as follows:
The majority seems to suggest that for a jury to find premeditation or deliberation it must have preceded the formation of intent to kill. In other words, it seems to hold, if the intent to kill is formed impulsively there can be no premeditation. Neither logic nor case law leads me to concur with that conclusion. The fact of deliberation for the requisite time is the key ingredient of premeditation. . . . Common sense suggests that premeditation exists as much if one is reflecting on an already formed intent to kill as it does when one is deliberating whether or not to kill. In either case, reflection and deliberation are present, if the deliberation is for an appreciable time. If the killing follows this process of reflection, then it is a *838premeditated killing.
. . . The time period during which one continuously exerts sufficient pressure on a victim's throat to block breathing which, in turn, causes unconsciousness and then death, affords a person a significant opportunity for a change of heart. If a person consciously rejects the opportunity to lessen the pressure in that period, the person may be found to have deliberated. The more time required, the greater the probability that even a slow thinker had time to reflect.
. . . [W]hat a person does is often the best gauge of his or her thinking. The fact finder is called upon to determine whether a defendant premeditated from the facts surrounding the killing. Here, the jury concluded, as well they might, that this defendant took this mentally retarded young woman to a secluded area of Clallam County, raped her, strangled her with little difficulty for 3 to 5 minutes until she was dead, and then proceeded to bite her dead body. From this evidence a rational trier of fact could conclude beyond a reasonable doubt that the defendant was capable of reflecting and did reflect on his deed sufficiently to cause him to be guilty of premeditated murder in the first degree.
¶26Bingham, at 562-66.
¶27Premeditation cannot automatically be inferred from elapsed time. Even so, the jury should be permitted to examine the evidence to glean what it can about intent and premeditation. I find the evidence of elapsed time, of the crime scene and other pertinent circumstances compel the conclusion the defendant had ample opportunity to premeditate. Further, the defendant caused Leslie Cook's death by strangulation. What one does is highly indicative of what one intended to do. The jury should not be precluded from considering the method of killing if its very nature provides clues to the mental process of the perpetrator.
¶28If one sits quietly and watches the clock for 3 to 5 minutes, an appreciation of the fullness of that length of time pervades one's thoughts. The jury was entitled to put itself in the shoes of the victim and the murderer. The victim *839would have gone from apprehension to fear, terror, and then lapsed into unconsciousness. During this time the victim, in all likelihood, would have struggled and the defendant would have watched all of this in the eyes of his victim. As to the defendant, the continued, deliberate exertion of strength required for that length of time was substantial. By the fact of death, we know that not once during all that it took to effect death did he desist from accomplishing his purpose.
¶29For the element of premeditation in an aggravated first degree murder case to be decided by the jury, there must be (a) proper instructions given defining premeditation and (b) sufficient evidence to support the giving of the instruction and to survive a challenge. The majority finds no fault with the instructions. The sole issue is whether there is evidence that the defendant thought about his act and intended to kill his victim. I find such evidence present and the conclusion as to whether the defendant did, in fact, deliberate and form an intent to take the life of his victim, a matter for the jury, not this court.
¶30The State presented substantial circumstantial evidence on the issue of premeditation. The trial court properly left that issue to the jury. The jury found that the defendant did premeditate. I would reinstate the first degree murder conviction of the defendant.
¶31Reconsideration denied July 3, 1986.
¶32WPIC 26.01, defining premeditation, reads:
A person commits the crime of murder in the first degree when, with a premeditated intent to cause the death of another person, he or she causes the death of such person . . .
Premeditated means thought over beforehand. When a person, after any deliberation, forms an intent to take human life, the killing may follow immediately after the formation of the settled purpose and it will still be premeditated. Premeditation must involve more than a moment in point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed.
¶33In instruction 8 the trial court added several sentences to the Washington Pattern Jury Instruction. The trial court's instruction went beyond the statement of the law as set forth in WPIC and imposed a heavier burden on the State than required. State v. Shirley, 60 Wn.2d 277, 373 P.2d 777 (1962); State v. Tikka, 8 Wn. App. 736, 509 P.2d 101 (1973).