Filed Washington State Court of Appeals Division Two
August 2, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 55098-9-II
Respondent,
v.
DUSTIN LEE ZAPEL, UNPUBLISHED OPINION
Appellant.
LEE, J. — Dustin L. Zapel appeals his convictions for two counts of first degree murder
and one count of attempted first degree murder. He argues that (1) the trial court abused its
discretion when it found him competent to stand trial, (2) the State presented insufficient evidence
that he was guilty of first degree murder as charged in Count I and Count II, (3) the State presented
insufficient evidence that Zapel was guilty of attempted first degree murder, and (4) the
prosecuting attorney committed misconduct during closing argument. Zapel also argues that his
judgment and sentence improperly imposed community custody supervision fees after the trial
court found him indigent.
We hold that (1) the trial court did not abuse its discretion in ruling that Zapel was
competent to stand trial, (2) there was sufficient evidence of premeditation to support the
convictions for first degree murder as charged in Counts I and II, (3) there was insufficient
evidence to support the conviction for attempted first degree murder, and (4) the prosecuting
attorney did not commit misconduct during closing arguments. Therefore, we affirm Zapel’s
convictions for first degree murder as charged in Counts I and II, reverse Zapel’s conviction for No. 55098-9-II
attempted first degree murder, and remand to the trial court for entry of the lesser included offense
of attempted second degree murder and for resentencing.1
FACTS
On July 16, 2017, Zapel killed Thomas West and James Olsen at the Central Park Place
Apartments (Central Park) in Vancouver. Following the killings, he armed himself with a knife
and followed a third resident, David Garner, who happened across him. The State charged Zapel
with two counts of first degree murder (Count I and II) for the killings of West and Olsen, and one
count of attempted first degree murder (Count III) for his conduct towards Garner.
A. CENTRAL PARK PLACE APARTMENTS
Zapel lived at Central Park, which is located on the Veterans Administration (VA) campus
in Vancouver. The multi-unit housing complex houses residents from the VA and Columbia River
Mental Health.
A number of the residents have mental illnesses, including Zapel, who had a longstanding
diagnosis of paranoid schizophrenia. Key components of schizophrenia include hallucinations and
delusions. Zapel took prescription medication for his diagnosis.
West, Olsen, and Garner also lived at Central Park. Residents of the apartments could not
smoke inside, so they smoked in the designated smoking area of the apartment courtyard. In the
smoking area, “[o]ften fights would break out” due to money owed for cigarettes. 4 Verbatim
1 Because we remand for resentencing, we do not address the issue of community custody supervision fees.
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Report of Proceedings (VRP) (March 13, 2020) at 1470. The area was “very hostile.” 4 VRP
(March 13, 2020) at 1470. West and Zapel smoked in a smoking area in the courtyard.
B. JULY 16, 2017 KILLINGS AND AFTERMATH
On July 16, 2017, the officers from the Vancouver Police Department responded to Central
Park and discovered the bodies of West and Olsen in the courtyard’s smoking area. The cause of
death for each was multiple stab wounds.
Dr. Dennis Wickham, a forensic pathologist, testified that West sustained 26 stab wounds
and Olsen sustained 18 or 19 stab wounds. Olsen’s body was on his back thirty feet from West’s
body, which was still sitting in a chair that was tipped over. West’s arm was extended forward at
a 45 degree angle.
Video surveillance shows what occurred in the moments leading to West’s and Olsen’s
deaths. The video shows that Zapel went into the courtyard through the building’s common area,
which included the kitchen. West was in the courtyard. Zapel ran back to the kitchen and retrieved
a knife and then returned outside, stabbing West repeatedly.
After killing West, Zapel started back toward the kitchen and encountered Olsen. He
immediately attacked Olsen, stabbing him repeatedly until Olsen fell to the ground. Olsen acted
to defend himself from Zapel. The video shows Zapel switching the knife from one hand to the
other during the stabbing. Zapel paused during the stabbing but resumed once Olsen moved. After
killing Olsen, Zapel returned to the kitchen and put the knife in a drawer. Zapel then rolled up his
sleeves, washed his hands, and used a paper towel to dry them.
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The video then shows David Garner entering the kitchen. Upon seeing Garner, Zapel
grabbed a second knife and immediately moved toward Garner. Garner left the kitchen, and Zapel
followed him with the knife.2
After leaving the kitchen, Zapel put the second knife in his jacket. Zapel exited Central
Park and hid the knife in a bushy area on the VA campus. Zapel then left the VA campus.
Law enforcement later identified Zapel as the assailant. Law enforcement discovered the
bloodstained knife used to kill West and Olsen in the kitchen drawer at Central Park. Using a
canine unit, they discovered a kitchen knife in a bushy area on the VA campus. Citizen volunteers
assisted police in locating Zapel’s blood stained San Francisco 49ers jacket, which was found
hanging on a post at a bus station on Fourth Plain Boulevard in Vancouver.
Later that morning, law enforcement detained Zapel walking without his San Francisco
49ers jacket and with an injury on one of his hands. Zapel had blood stains on his pants and hands.
C. ZAPEL’S POLICE INTERVIEW
After his arrest, Zapel agreed to an interview with police. During the interview, Zapel
made repeated references to a “fake head.” Ex. 314 at 29, 36, 38. He also explained that while in
his bed that night, he felt as if his “brain was shuttin’ down” and he “had to do somethin’ violent.”
2 Police interviewed Garner regarding his encounter with Zapel. Garner stated that before walking to the building’s common area, he was in his room with the window open. He heard a noise from the courtyard and thought perhaps someone was having a seizure, so he went to investigate. He entered the kitchen, and he saw Zapel with a knife. Garner stated that Zapel “[p]icked up the—I mean, wielded the knife in my direction and then headed towards me with the knife.” Ex. 301 at 8. Garner stated that Zapel walked briskly in his direction; however, that was Zapel’s usual manner of walking. Garner went back to his room and locked the door so he could assess the situation. Garner eventually decided to leave his room, got in his car, and drove to a parking lot to call 911.
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Ex. 314 at 17, 29. Zapel also said at one point he had thoughts of killing other people all the time.
And he did not think he would get in trouble because everybody does it. Zapel also stated that he
had tried to stab Garner, “I lunged at him and stuck my arm out.” Ex. 314 at 49.
Zapel made other statements during the police interview, including telling officers that he
was “[l]ocked up for 500 years in prison,” and “I was made in a lab.” Ex. 314 at 48, 53. Zapel
also mentioned the military and CIA. In reference to Olsen, when asked where he thought Olsen
was, Zapel replied, “Probably at home, laughing about the whole story.”3 Ex. 314 at 51. The
Officer also asked, “You knew he was a real person, right?” Ex. 314 at 51. Zapel replied, “I don’t
think I would hurt anyone.” Ex. 314 at 51.
The State charged Zapel in an amended information with two counts of first degree murder
(West and Olsen) and one count of attempted first degree murder (Garner). On each count, the
State alleged that Zapel was armed with a deadly weapon during the commission of the crimes.
D. COMPETENCY HEARING
On May 3, 2018, the trial court held a competency hearing at which it heard testimony
from two experts. The trial court also had before it numerous forensic psychological evaluations
prepared between 2005 and 2009, which showed that Zapel had a consistent diagnosis of paranoid
schizophrenia since January 2004.
3 At trial, on cross examination by defense counsel, Officer Neil Martin of the Vancouver Police Department agreed with defense counsel that Zapel stated during his police interview that West was probably at home laughing at the whole story. The interview transcript, however, shows that the interviewing officer inquired about “the second guy that you stabbed.” Ex. 314 at 51. Zapel stated that he believed Olsen was “[p]robably at home, laughing about the whole story.” Ex. 314 at 51.
5 No. 55098-9-II
Christopher Kirk Johnson, Ph.D., a licensed psychologist, testified that he evaluated Zapel
at the Clark County Jail on three occasions. On a fourth occasion, Zapel refused to see him. Dr.
Johnson reviewed previous evaluations from Western State Hospital, the evaluation by Dr.
Kenneth Dudley, and the jail medical records. He also watched the video surveillance of the
alleged crime. Dr. Johnson stated that Zapel’s consistent diagnosis over approximately 14 years
was paranoid schizophrenia. This manifests in hallucinations and delusions. Dr. Johnson
evaluated Zapel’s ability to understand the court proceedings and his ability to assist his attorney.
Dr. Johnson testified as to Zapel’s understanding of the legal proceedings against him. Dr.
Johnson opined that Zapel had an understanding of the legal process, including the roles of the
attorneys, the court and the nature of any potential pleas, as well as the allegations against him.
Dr. Johnson stated that in his last interview with Zapel, Zapel appeared to understand that he was
charged with a serious crime. According to Dr. Johnson, however, Zapel did not appear to
understand the importance of detailing what occurred on the night of the incident. Dr. Johnson
explained that Zapel’s response to his attorney would have “a lot of variability.” 1 VPR (May 3,
2018) at 75. This meant that Zapel’s willingness to cooperate with defense counsel and act in his
own best legal interest would vary. Dr. Johnson concluded, “when I saw [Zapel] my feeling was
he was not . . . able to cooperate. The issue can be raised as to whether or not that is something
he’s doing consciously.” 1 VRP (May 3, 2018) at 77.
Kenneth Dudley, Ph.D., a forensic psychologist for the State of Washington, testified that
he examined Zapel on two occasions while Zapel was in jail. Dr. Dudley agreed that Zapel had
paranoid schizophrenia. Dr. Dudley believed that, during his interviews, Zapel had the “ability to
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understand the charges, the attorneys’ roles.” 1 VRP (May 3, 2018) at 87. Dr. Dudley also
believed that Zapel had the ability to work with his attorney “in a reasonable and rational manner.”
1 VRP (May 3, 2018) at 88. Dr. Dudley stated that after observing Zapel at the competency
hearing, he maintained that belief.
During the hearing, Zapel appeared to confess to the killings in open court. Zapel stated,
“What defense? I did it. What of it?” and “There I did it. What of it? I need no defense.” 1 VRP
(May 3, 2018) at 92. Zapel later stated, “I don’t even care. You can forget everything I ever said
except for I did it. I stabbed the guy. That’s all I can say.” 1 VRP (May 3, 2018) at 101.
Zapel also made statements that showed a desire to be represented by the prosecuting
attorney, stating that he wanted “a new attorney,” and “I want a new judge too” and “[t]his is
pointless.” 1 VRP (May 3, 2018) at 90-91. Zapel requested that the trial court rely on the
prosecuting attorney’s theory of the case.
Defense counsel’s argument emphasized that both experts questioned Zapel’s ability to
cooperate with defense counsel. Defense counsel stated that based on Zapel’s history of paranoid
schizophrenia, “his ability to . . . cooperat[e] will be variable almost from a day-to-day or one
section of a hearing to another.” 1 VRP (May 3, 2018) at 99. Defense counsel also told the trial
court that an “enormous amount of evidence . . . would indicate [Zapel is] the person involved in
the stabbing.” 1 VRP (May 3, 2018) at 99. Therefore, one would lean toward a defense of
diminished capacity or insanity; however, “[Zapel is] quite reluctant to talk about these things and
put us in a position to help him, which leads to this question of whether he’s competent to be on
trial if he can’t help himself.” 1 VRP (May 3, 2018) at 99. Defense counsel also discussed Zapel’s
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desire to have the prosecuting attorney represent him, stating, “I don’t think [Zapel] understands
how things work if he thinks that’s going to happen. So I think the Court’s left with finding him
incompetent.” 1 VRP (May 3, 2018) at 100.
The trial court issued its ruling, relying on the August 23, 2017 competency report
completed by Dr. Dudley and testimony given by Dr. Dudley at the May 3, 2018 hearing, which
indicated that “[Zapel] understands the nature of the proceedings and the defendant is able to assist
in his own defense.” Clerk’s Papers (CP) at 201. The trial court concluded that Zapel was
competent to stand trial and found that
the last time Dr. Johnson saw the defendant . . . the defendant did not have the ability to cooperate with counsel, period. Dr. Johnson feels this may have been intentional; the defendant is not willing to talk about the factual events of the crime.
....
. . . in Dr. Dudley’s opinion the defendant has the ability to cooperate with his attorney.
1 VRP (May 3, 2018) at 103-104.
On October 8, 2019, the defense moved for reconsideration of the trial court’s finding of
competency to stand trial made 17 months earlier in May 2018. The trial court denied the motion
for reconsideration.
E. TRIAL TESTIMONY
During trial, the surveillance video showing the stabbings of West and Olsen was played
for the jury. The video surveillance from the VA campus showing Zapel leaving the campus after
stopping in a bushy area was also shown to the jury.
Relevant to the issues raised on appeal, the jury heard from the following witnesses.
8 No. 55098-9-II
Rosalinda Valdezpenia testified that Zapel informed her that he had been charged with two
other felonies in the past. He told her that he was sent to Western State Hospital, and “‘I got away
with it,’” with regard to one of the times that he was charged with an offense. 4 VRP (March 13,
2020) at 1461. Valdezpenia testified that, about a week before the stabbings, she counted Zapel’s
medication and noticed that the pill container had two extra pills.
Robert Mackinnon testified that Zapel had stated that he could not stand West. Zapel,
however, never mentioned harming or killing West.
Robert Ewing testified that Zapel told him that he “wonder[ed] what it would feel like to
really clobber somebody.” 4 VRP (March 12, 2020) at 1372. Ewing also testified that Zapel “had
problems with several people” and “he seemed like a troubled kid and had trouble getting along
with people.” 4 VRP (March 12, 2020) at 1374. Zapel had said to Ewing, “I wonder what it would
feel like to kill someone.” 4 VRP (March 12, 2020) at 1372. According to Ewing, West and Zapel
had a “competition and sort of adversarial situation” in which they would compete in borrowing
cigarettes. 4 VRP (March 12, 2020) at 1376. Ewing stated, however, that he never personally saw
Zapel’s reaction to this “cigarette borrowing competition.” 4 VRP (March 12, 2020) at 1376.
Dr. Dudley testified that during the competency hearing on May 3, 2018, Zapel made
comments while the video of the killings was played. Dr. Dudley testified that Zapel stated,
“[T]here were two Daves” and “‘[t]hat one . . . he was scared but nothing happened to him.’” 4
VRP (March 16, 2020) at 1573. Later, Zapel stated, “‘they had been picking on me for a couple
of months’” and “‘I had to do it’” or “‘I wanted to do it’” and “‘I had to let off some steam. It felt
good to do that.’” 4 VRP (March 16, 2020) at 1573-74.
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Dr. Johnson testified that Zapel first said that he did not engage in the conduct for which
he was accused. Dr. Johnson stated that someone can “be delusional and still act intentionally.”
4 VRP (March 16, 2020) at 1590. Dr. Johnson also stated that the inability to form intent because
one has mental illness is rare.
Christopher Cadle, Ph.D., a licensed psychologist and forensic evaluator, testified that he
attempted to interview Zapel five times unsuccessfully due to Zapel’s unwillingness to participate.
Dr. Cadle stated that a person with schizophrenia can still act with intent or premeditation. He
opined that at the time of the killings, Zapel had a mental disorder. Dr. Cadle stated, however, that
at the time of the killings, Zapel could form intent. Dr. Cadle also stated that Zapel had the capacity
to premeditate. Dr. Cadle contrasted the actions of a person who is flailing and unable to form
intent with Zapel’s actions. He stated that Zapel walked purposefully as if he had a place in mind
when he returned to the kitchen to retrieve a kitchen knife. Dr. Cadle also stated, “[T]hat’s very
goal-directed behavior, very purposeful behavior. So he goes in, finds the drawer where the knife
is, takes the knife out, and then walks out.” 4 VRP (March 16, 2020) at 1644.
Leslie Goldmann, Ph.D., a clinical psychologist, testified that schizophrenia “impairs one’s
ability to think rationally to behave in an organized fashion.” Dr. Goldmann opined that the illness
can affect one’s ability to premeditate a crime. Dr. Goldmann also stated that it could impair one’s
ability to act with intent.
Washington State Patrol Crime Lab forensic scientist David Stritzke testified that the DNA
profile from the knife blade found in the kitchen at Central Park matched the profile of Olsen, and
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the knife handle matched the DNA profile of Zapel and West as contributors. Stritzke also tested
the recovered jacket and found DNA that matched the profiles of West and Zapel.
F. JURY INSTRUCTIONS
The trial court instructed the jury on the crime of first degree murder and attempted first
degree murder. The trial court instructed as follows:
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.
CP at 1896.
A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result that constitutes an element of a crime.
CP at 1897.
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.
CP at 1898.
A person commits the crime of attempted murder in the first degree when, with intent to commit that crime, he or she does any act that is a substantial step toward the commission of that crime.
CP at 1912.
A substantial step is conduct that strongly indicates a criminal purpose and that is more than mere preparation.
CP at 1913.
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The trial court also instructed the jury on the lesser included crimes of second degree
murder and attempted second degree murder.
G. CLOSING ARGUMENTS
During closing arguments, the prosecuting attorney made several comments that Zapel now
challenges on appeal.
The State argued:
Now, what is our evidence of premeditation? He grabs a knife, more than a moment in point of time, runs back outside. Again, more than a moment in a point of time. Stabs [West] and [Olsen] over and over and over again. Again, more than a moment in point of time. As he’s killing [Olsen], he pauses and then stabs, then pauses again and then stabs.
5 VRP (March 17, 2020) at 1890. Zapel objected, stating that the State’s argument conflated
“premeditation with intent to be the same physical act.” 5 VRP (March 17, 2020) at 1890. The
trial court overruled the objection, stating that the parties had “broad discretion during closing to
make arguments . . . they wish to make.” 5 VRP (March 17, 2020) at 1890.
Later, the State argued:
Your role is to determine whether the State has proved the elements of the crimes before you beyond a reasonable doubt, those to-convict instructions that the judge gave you. Those are the elements that you are to consider, having to prove intent and premeditated intent. And you heard that someone who is insane, who is delusional, can still act with intent. And the evidence shows you that the defendant did act with intent and that that intent was clearly premeditated.
5 VRP (March 17, 2020) 1892-93. Zapel again objected, “Again, objection. Confusing, melting
together concepts we talked about before that don’t fit.” 5 VRP (March 17, 2020) at 1893. The
trial court overruled the objection.
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During rebuttal, the State argued:
And you’ll note from your jury instructions that it’s a premeditated intent, so it goes to the intent and whether that intent was premeditated.
5 VRP (March 17, 2020) at 1946. Zapel again objected on the basis that the prosecuting attorney
misstated the law, “[P]remeditation and intent are separated.” 5 VRP (March 17, 2020) at 1946.
The trial court overruled the objection, “That’s true, but at this point, this is argument. Objection
overruled.” 5 VRP (March 17, 2020) at 1946.
H. VERDICT, SENTENCE, AND APPEAL
The jury found Zapel guilty of first degree murder (Counts I and II) and attempted first
degree murder (Count III). The jury also found by special verdict that Zapel committed each crime
while armed with a deadly weapon.
Zapel moved for a new trial or arrest of judgment on a number of grounds, including that
insufficient evidence existed to support a finding that Zapel acted with intent, insufficient evidence
existed to show that he acted with premeditation, and on the basis of prosecutorial misconduct.
The trial court denied the motion.
At sentencing, the trial court sentenced Zapel to a mid-range sentence of 792 months in
custody and 36 months of community custody. The trial court found Zapel indigent and imposed
a mandatory $500 victim assessment fee and a mandatory DNA collection fee. The trial court also
ordered Zapel to “pay [community custody] supervision fees as determined by [Department of
Corrections].” CP at 2076.
Zapel appeals.
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ANALYSIS
A. COMPETENCY DETERMINATION
Zapel contends that the trial court incorrectly concluded that he was capable of assisting in
his own defense. Zapel argues that the trial court failed to give adequate weight to defense
counsel’s opinion regarding Zapel’s lack of competency, Dr. Johnson’s testimony, and Zapel’s
extensive history of mental illness. He also challenges the trial court’s finding that Dr. Johnson
felt that Zapel’s failure to cooperate with counsel “‘may have been intentional.’” Br. of Appellant
at 22 (quoting 1 VRP (May 3, 2018) at 103).4
The trial court has wide discretion in determining whether a defendant is competent to
stand trial. State v. Ortiz, 104 Wn.2d 479, 482, 706 P.2d 1069 (1985), cert. denied, 476 U.S. 1144
(1986). Therefore, we review a trial court’s competency determination for an abuse of discretion.
Id; State v. Ortiz-Abrego, 187 Wn.2d 394, 402, 387 P.3d 638 (2017).
A trial court abuses its discretion when its decision is based on “the wrong legal standard
or is unsupported by the record.” Ortiz-Abrego, 187 Wn.2d at 402. “We normally defer to the
trial court’s competency determination because the trial court can personally observe the
individual’s behavior and demeanor.” State v. Crenshaw, 27 Wn. App. 326, 330, 617 P.2d 1041
(1980), aff’d, 98 Wn.2d 789 (1983).
4 Zapel also contends that the trial court failed to conduct a proper competency hearing; however, Zapel fails to present any argument showing why the hearing was improper. Therefore, we decline to address this argument. In re Disciplinary Proc. Against Jensen, 192 Wn.2d 427, 449, 430 P.3d 262 (2018).
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“It is a fundamental principle of state and federal law that incompetent defendants may not
stand trial.” State v. Coley, 180 Wn.2d 543, 551, 326 P.3d 702 (2014), cert. denied, 574 U.S. 1174
(2015). The “party challenging competency” has the burden to “prove by a preponderance of the
evidence that the defendant is incompetent.” Id. at 555.
“[A] defendant is competent to stand trial if he has the capacity to understand the nature of
the proceedings against him and he can assist in his own defense.” Id. at 551-52; Former RCW
10.77.010(15) (2019), RCW 10.77.050. A trial court may consider “‘many things, including the
defendant’s appearance, demeanor, conduct, personal and family history, past behavior, medical
and psychiatric reports and the statements of counsel’” when rendering a decision. Ortiz-Abrego,
187 Wn.2d at 404 (quoting State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302, cert. denied, 387
U.S. 948 (1967)). “The mere existence of a mental disorder or the existence of delusions does not
prevent a defendant from being competent.” State v. Fedoruk, 5 Wn. App. 2d 317, 335, 426 P.3d
757 (2018). A defendant with a current mental disorder is able to assist in his own defense when
he “posses[es] an adequate recall of the factual events involved in the charge against him, [is] able to communicate those recollections to his attorney, and ha[s] both an intellectual and emotional appreciation of the ramifications and consequences of the crime charged.”
State v. McCarthy, 193 Wn.2d 792, 806, 446 P.3d 167 (2019) (alterations in original) (quoting 12
ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 902,
at 171 (3d ed. 2021)). An expert opinion that a defendant is competent provides a tenable basis
for a competency determination. State v. Lawrence, 166 Wn. App. 378, 389, 271 P.3d 280, review
denied, 174 Wn.2d 1009 (2012).
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1. Finding With Regard To Dr. Johnson
As an initial matter, Zapel challenges the trial court’s finding that Dr. Johnson felt that
Zapel’s failure to cooperate with counsel “‘may have been intentional.’” Br. of Appellant at 22
(quoting 1 VRP (May 3, 2018) at 103). Zapel argues the trial court erred because Dr. Johnson
opined that Zapel’s unwillingness to cooperate with counsel was “‘most likely . . . based on his
mental illness.’” Br. of Appellant at 22 (quoting 1 VRP (May 3, 2018) at 79).
At the competency hearing, Dr. Johnson twice testified that an issue remained as to whether
Zapel was “consciously” not cooperating or “not willing” to cooperate. 1 VRP (May 3, 2018) 77.
Because Dr. Johnson stated that Zapel’s lack of cooperation may stem from an unwillingness rather
than an inability to cooperate, the trial court did not err in finding that Dr. Johnson felt Zapel’s
failure to cooperate with counsel may have been intentional.
2. Trial Court’s Discretionary Competency Ruling
Dr. Johnson and Dr. Dudley testified at the competency hearing. Dr. Johnson opined that
Zapel’s competency would vary, specifically his ability to assist defense counsel. He stated that
it appeared Zapel could not “make the connection between . . . the need to talk about the conduct
and how that might be in his best interests because he has relatively limited options here in terms
of how to manage this situation.” 1 VRP (May 3, 2018) at 77. Dr. Johnson also stated that an
issue remained as to whether Zapel could not or would not cooperate.
Dr. Dudley conducted multiple evaluations of Zapel in jail and reviewed Zapel’s extensive
history of mental illness. Dr. Dudley believed Zapel to be competent. Dr. Dudley opined that
Zapel could understand the nature of the court proceedings and had the ability to cooperate with
16 No. 55098-9-II
his attorney. Dr. Dudley also observed Zapel’s behavior during the hearing, where Zapel appeared
to confess to the murders and indicated that the prosecuting attorney should represent him. Dr.
Dudley testified that, notwithstanding Zapel’s behavior during the hearing, he maintained his
belief in Zapel’s competency.
Here, the trial court had before it psychological reports, which evidenced Zapel’s long
history of mental illness. The trial court explicitly stated that, in reaching its decision, it had
considered the reports and its own notes from the hearing. The trial court made findings of fact
which referenced the testimony presented from both Dr. Johnson and Dr. Dudley. And the trial
court relied on the opinion of Dr. Dudley, who found Zapel competent to stand trial. Because the
trial court considered all the evidence, including the opinion of Dr. Dudley, who opined that Zapel
was competent to stand trial, the trial court had a tenable basis on which to conclude that Zapel
was competent. The trial court’s decision regarding competency was supported by the record, and
therefore, the trial court did not abuse its discretion in making its competency determination.
B. SUFFICIENCY OF THE EVIDENCE—FIRST DEGREE MURDER
Zapel contends that the State failed to prove premeditation beyond a reasonable doubt, and
therefore, his convictions for murder in the first degree must be reversed with instructions for
dismissal of the charges. We disagree.
1. Legal Principles
The State must prove each element of a crime charged beyond a reasonable doubt. State
v. Anderson, 198 Wn.2d 672, 686, 498 P.3d 903 (2021). When a defendant challenges the
sufficiency of the evidence, “‘the relevant question is whether, after viewing the evidence in the
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light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” State v. Scanlan, 193 Wn.2d 753, 770, 445
P.3d 960 (2019) (internal quotation marks omitted) (quoting State v. Green, 94 Wn.2d 216, 221,
616 P.2d 628 (1980) (plurality opinion)), cert. denied, 140 S. Ct. 834 (2020). “‘When the
sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the
evidence must be drawn in favor of the State and interpreted most strongly against the defendant.’”
State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010) (quoting State v. Salinas, 119 Wn.2d 192,
201, 829 P.2d 1068 (1992)). “‘A claim of insufficiency admits the truth of the State’s evidence
and all inferences that reasonably can be drawn therefrom.’” Id. (quoting Salinas, 119 Wn.2d at
201). “‘Circumstantial evidence and direct evidence are equally reliable in determining the
sufficiency of the evidence.’” Scanlan, 193 Wn.2d at 770 (internal quotation marks omitted)
(quoting Kintz, 169 Wn.2d at 551). “However, inferences based on circumstantial evidence must
be reasonable and cannot be based on speculation.” State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d
318 (2013). A claim of insufficiency of the evidence is reviewed de novo. State v. Berg, 181
Wn.2d 857, 867, 337 P.3d 310 (2014).
The element of premeditation differentiates murder in the first degree from murder in the
second degree. State v. Bingham, 105 Wn.2d 820, 823, 719 P.2d 109 (1986). Premeditation
requires “more than a moment in point of time.” RCW 9A.32.020(1). “The State must show ‘the
deliberate formation of and reflection upon the intent to take a human life,’” which “‘involves the
mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period
of time, however short.’” State v. Hummel, 196 Wn. App. 329, 354, 383 P.3d 592 (2016) (quoting
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State v. Hoffman, 116 Wn.2d, 82-83, 804 P.2d 577 (1991)). The opportunity to deliberate, by
itself, is insufficient to prove premeditation. Id. “The State can prove premeditation by
circumstantial evidence ‘where the inferences drawn by the jury are reasonable and the evidence
supporting the jury’s finding is substantial.’” Id. at 355 (quoting State v. Pirtle, 127 Wn.2d 628,
643, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996)). “Four characteristics of the crime
are particularly relevant to establish premeditation: motive, procurement of a weapon, stealth, and
the method of killing.” Pirtle, 127 Wn.2d at 644.
2. Evidence On Premeditation
The State argues that evidence is sufficient to show premeditation. In support, the State
relies on State v. Ortiz, 119 Wn.2d 294, 831 P.2d 1060 (1992) (lead opinion of Durham, J.),
(concurring opinion of Dolliver, J.), and State v. Aguilar, 176 Wn. App. 264, 308 P.3d 778 (2013),
review denied, 179 Wn.2d 1011 (2014), and argues that these cases are not meaningfully
distinguishable from the present case.
In Ortiz, the Supreme Court found sufficient evidence of premeditation where the
defendant (1) committed the killing with a knife and inflicted multiple wounds; (2) the “knife was
procured on the premises” but the “murder occurred in a bedroom, and not in the kitchen where
the knife was found[;]” (3) “[t]he victim was struck in the face with something other than the
knife[;]” and (4) “the defensive wounds found on the victim indicate a prolonged struggle.” 119
Wn.2d at 312-13.
In Aguilar, the court again found sufficient evidence of premeditation where the defendant
(1) “had a motive to kill his wife—her possible involvement with another man[;]” (2) first hit his
19 No. 55098-9-II
wife and then continued his attack by stabbing her; (3) “instituted his plan to kill his wife by leaving
the living room to procure a weapon, a knife, from the kitchen[;]” (4) used stealth to evade his 13-
year-old daughter in order to continue his attack; and (5) finally, engaged in a “lengthy and
excessive attack.” 176 Wn. App. at 273-74.
The State also relies on State v. Sargent, 40 Wn. App. 340, 353, 698 P.2d 598 (1985), in
which the court found premeditation could be inferred from the facts after considering that “the
victim was struck by two blows to the head with some interval passing between them,” and State
v. Gibson, 47 Wn. App. 309, 312, 734 P.2d 32, review denied, 108 Wn.2d 1025 (1987), in which
this court found premeditation when the evidence showed a “a sufficient lapse of time between the
beating and strangulation.”
The State further cites to Pirtle, in which, among other facts, the Supreme Court considered
that the defendant had the presence of mind to clean himself and his car, and hide evidence. 127
Wn.2d at 645. The State argues that, like the defendant in Pirtle, Zapel’s behavior after the attacks,
including washing his hands, fleeing the scene, and discarding his jacket, show that Zapel acted
with premeditation.
In drawing parallels between Zapel’s conduct and the premeditated conduct in the cases it
cites, the State asserts that Zapel had a motive to kill West. The State points to the evidence that
Zapel once stated he could not stand West. And Ewing, a resident at Central Park, testified that
Zapel had a “sort of adversarial situation” with West in which Zapel and West competed in
borrowing cigarettes. 4 VRP (March 12, 2020) at 1376. Also, Zapel told police that he “had to
do somethin’ violent” and he “went to go kill [West].” Ex. 314 at 29. With regard to Olsen, the
20 No. 55098-9-II
State asserts premeditation is shown when Zapel paused during his killing of Olsen and moved the
knife from one hand to the other. The State also asserts that premeditation is shown by Zapel’s
lengthy attack of his victims with multiple stab wounds.
Here, viewing the facts in the light most favorable to the State, there is sufficient evidence
showing that Zapel acted with premeditation when he killed West. There is evidence that Zapel
could not stand West. And there is evidence that Zapel had entertained thoughts about hurting
someone, and in particular, “what it would feel like to kill someone.” 4 VRP (March 12, 2020) at
1372-1374.
The video shows that Zapel walked through the kitchen and out to the courtyard. After
encountering West in the courtyard, Zapel returned to the kitchen, secured the murder weapon
from the kitchen counter, returned to the courtyard, and stabbed West. Zapel stabbed West 26
times. Zapel then attempted to erase signs of the crime by placing the murder weapon in a kitchen
drawer, washing his hands, leaving the VA campus, and eventually discarding the jacket he wore
during the crime.
Viewing the evidence in the light most favorable to the State, the evidence shows that Zapel
disliked West, had thoughts about hurting or killing someone, deliberately went into another room
to procure the murder weapon after encountering West in a different location, brutally killed West,
and attempted to get rid any evidence of the crime that could implicate him. Because Zapel’s
actions show the deliberate formation of an intent to take a human life, sufficient evidence supports
the first degree murder conviction as to West.
21 No. 55098-9-II
And, viewing the evidence in the light most favorable to the State, the evidence is also
sufficient to show that Zapel acted with premeditation as to Olsen. Zapel encountered Olsen by
chance and then stabbed him 18 or 19 times. Although the meeting with Olsen was by chance, the
video shows a prolonged struggle in which Olsen attempted to defend himself from Zapel. During
the attack on Olsen, Zapel paused, but he resumed stabbing Olsen when Olsen began to move.
Afterward, Zapel hid evidence of his involvement by putting the knife in a kitchen drawer, washing
his hands, leaving the scene, and discarding the jacket he was wearing. This evidence supports a
finding that Zapel deliberately formed an intent to take Olsen’s life. Therefore, sufficient evidence
supports the first degree murder conviction as to Olsen.
In sum, the jury had before it sufficient evidence of premeditation on the first degree
murder charges. Because sufficient evidence supported a finding of premeditation and the jury
did not merely speculate as to whether Zapel deliberated, Zapel’s sufficiency of the evidence
challenge fails.
C. SUFFICIENCY OF THE EVIDENCE—ATTEMPTED FIRST DEGREE MURDER
Zapel contends that the attempted first degree murder conviction must also be reversed as
insufficient evidence showed that he acted with premeditated intent or that he took a substantial
step toward committing first degree murder. We agree that there is insufficient evidence to show
Zapel acted with premeditated intent as to the attempted first degree murder charge.
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1. Premeditated Intent5
In order to convict a defendant of attempted first degree murder, a jury must find that the
defendant “took a substantial step toward committing first-degree murder with the premeditated
intent to cause the death of another.” State v. Orn, 197 Wn.2d 343, 363, 482 P.3d 913 (2021);
State v. Barajas, 143 Wn. App. 24, 36, 177 P.3d 106 (2007), review denied, 164 Wn.2d 1022
(2008). Again, the four characteristics that are “particularly relevant” when considering whether
premeditation was established include “motive, procurement of a weapon, stealth, and the method
of killing.” Pirtle, 127 Wn.2d at 644.
Here, the evidence is insufficient to show that Zapel attempted to kill Garner with
premeditated intent. After killing Olsen, Zapel returned to the kitchen to put the knife used to kill
West and Olsen away. Zapel then washed his hands. At that time, Garner entered the kitchen and
saw Zapel. Upon seeing Garner, Zapel immediately grabbed a second knife and moved toward
Garner. The video shows Garner leaving the kitchen as Zapel follows him with the second knife.
The events happened rapidly, and the video shows no opportunity for deliberation. Because there
5 The State contends that premeditation is not an essential element of attempted first degree murder, citing to State v. Boswell, 185 Wn. App. 321, 340 P.3d 971 (2014), review denied, 183 Wn.2d 1005 (2015) and State v. Besabe, 166 Wn. App. 872, 271 P.3d 387, review denied, 175 Wn.2d 1003 (2012). It argues that nonetheless, it proved that Zapel acted with premeditated intent.
Pursuant to Boswell and Besabe, a trial court is not required to include premeditation as an essential element of the “to convict” jury instruction for attempted first degree murder. Boswell, 185 Wn. App. at 335-37; Besabe, 166 Wn. App. at 883-84. However, the jury instructions as a whole must instruct the jury that the State maintains the burden of proving that a defendant acted with premeditation. State v. Orn, 197 Wn.2d 343, 361, 482 P.3d 913 (2021). Therefore, here, the State was required to prove that Zapel acted with premeditated intent.
23 No. 55098-9-II
is no evidence of deliberation with regard to Garner, there is insufficient evidence to prove that
Zapel acted with premediated intent in his attempt to kill Garner.
2. Substantial Step
Zapel also argues that the State failed to show that he took a substantial step toward
committing first degree murder. He argues that “[a] jury could reasonably infer that Mr. Zapel
was attempting to scare, threaten, intimidate or chase away Mr. Garner so that Mr. Zapel could
escape from the crime scene.” Br. of Appellant at 38.
“A person is guilty of an attempt to commit a crime if, with intent to commit a specific
crime, he or she does any act which is a substantial step toward the commission of that crime.”
RCW 9A.28.020(1). In order for a defendant’s conduct to constitute a substantial step, it must be
“strongly corroborative of the actor’s criminal purpose.” State v. Workman, 90 Wn.2d 443, 452,
584 P.2d 382 (1978). “[A]ny act done in furtherance of the crime constitutes an attempt if it clearly
shows the design of the defendant to commit the crime.” State v. Wilson, 158 Wn. App. 305, 317,
242 P.3d 19 (2010). “Whether conduct constitutes a substantial step is a question of fact.” Id.
Here, when Zapel saw Garner, Zapel immediately armed himself with a knife and moved
towards Garner. Viewing the facts and reasonable inferences in the light most favorable to the
State, a jury could find that Zapel armed himself and moved toward Garner in order to effectuate
a third killing. Because Zapel armed himself with a knife and moved toward Garner, a jury could
determine that Zapel took a substantial step towards killing Garner.
24 No. 55098-9-II
The evidence shows that Zapel took a substantial step toward killing Garner; however, the
State failed to prove that Zapel acted with premeditation. Thus, there is insufficient evidence to
support Zapel’s conviction for attempted first degree murder.
3. Remand Is Required
Zapel seeks reversal and dismissal of his attempted first degree murder conviction due to
insufficiency of the evidence to support the conviction. The State responds that the correct action
is to remand for entry of the lesser included offense for that crime. We agree with the State.
“When the evidence is insufficient to support a conviction and the conviction is reversed,
we may remand for entry of an amended judgment on a lesser included offense.” State v. Hutchins,
73 Wn. App. 211, 218, 868 P.2d 196 (1994). “[R]emand for resentencing on a lesser included
offense is appropriate only when the jury was explicitly instructed on the lesser offense.” State v.
Richardson, 12 Wn. App. 2d 657, 667, 459 P.3d 330 (2020). “Based upon the giving of such an
instruction it has been held that the jury necessarily had to have disposed of the elements of the
lesser included offense to have reached the verdict on the greater offense.” State v. Green, 94
Wn.2d 216, 234, 616 P.2d 628 (1980) ( italics omitted) (lead opinion of Stafford, J.), 235
(concurring opinion of Utter, C.J.). Second degree murder is a lesser included offense of first
degree murder. State v. Mullins, 158 Wn. App. 360, 371, 241 P.3d 456 (2010), review denied, 171
Wn.2d 1006 (2011).
Here, the jury was instructed on the lesser included offense of attempted second degree
murder. Therefore, with regard to the attempted first degree murder conviction, we reverse that
25 No. 55098-9-II
conviction and remand for entry of judgment on the lesser included crime of attempted second
degree murder.
D. PROSECUTORIAL MISCONDUCT
Zapel argues that the prosecuting attorney committed misconduct during closing
arguments. We disagree.
When making a claim of prosecutorial misconduct, the defendant bears the burden of
proving that a prosecutor’s conduct was improper and prejudicial. State v. Thorgerson, 172 Wn.2d
438, 442, 258 P.3d 43 (2011). We first evaluate whether the prosecuting attorney’s comments
were improper. State v. Emery, 174 Wn.2d 741, 759, 278 P.3d 653 (2012). If the prosecuting
attorney made improper statements, we then determine if the conduct prejudiced the defendant.
Id. at 760. When the alleged improper conduct was objected to below, prejudice is shown if there
is a substantial likelihood that the prosecutor’s misconduct affected the jury verdict. Id. We look
at the challenged statements “in the context of the total argument, the issues in the case, the
evidence, and the instructions given to the jury.” State v. Warren, 165 Wn.2d 17, 28, 195 P.3d
940 (2008), cert. denied, 556 U.S. 1192 (2009).
Here, Zapel argues that the prosecuting attorney made improper arguments by misstating
the law on premeditation. He contends that the prosecuting attorney “argued that intent to kill
proves premeditation.” Br. of Appellant at 39.
A misstatement of the law by the prosecuting attorney constitutes improper argument.
State v. Allen, 182 Wn.2d 364, 373, 341 P.3d 268 (2015). The prosecution’s statements to the jury
26 No. 55098-9-II
must be confined to the law as stated in the instructions given by the trial court. State v. Estill, 80
Wn.2d 196, 199, 492 P.2d 1037 (1972).
Zapel challenges the three arguments made by the State that he objected to below. During
closing arguments, the State argued:
Now, what is our evidence of premeditation? He grabs a knife, more than a moment in point of time, runs back outside. Again, more than a moment in a point of time. Stabs [West] and [Olsen] over and over and over again. Again, more than a moment in point of time. As he’s killing [Olsen], he pauses and then stabs, then pauses again and then stabs.
5 VRP (March 17, 2020) at 1890. Next, the State argued:
Your role is to determine whether the State has proved the elements of the crimes before you beyond a reasonable doubt, those to-convict instructions that the judge gave you. Those are the elements that you are to consider, having to prove intent and premeditated intent. And you heard that someone who is insane, who is delusional, can still act with intent. And the evidence shows you that the defendant did act with intent and that that intent was clearly premeditated.
5 VRP (March 17, 2020) at 1892-93. And during rebuttal, the State argued:
And you’ll note from your jury instructions that it’s a premeditated intent, so it goes to the intent and whether that intent was premeditated.
5 VRP (March 17, 2020) at 1946.
Zapel contends that the State’s arguments, particularly the last argument in rebuttal, “serve
to blur the difference between the two legal principles.” Br. of Appellant at 43. Zapel asserts that
“[s]pecific intent to kill and premeditation are not synonymous, but separate and distinct elements
of the crime of first-degree murder.” Br. of Appellant at 43 (quoting State v. Ollens, 107 Wn.2d
848, 850, 733 P.2d 984 (1987)). Zapel offers no further analysis except to later state, when
contending that the comments served to prejudice him, that the prosecuting attorney “implied that
27 No. 55098-9-II
the element of intent was entwined or interchangeable with the much more subtle element of
premeditation.” Br. of Appellant at 44.
With regard to the first statement that Zapel challenges, in discussing the evidence on
premeditation, the prosecuting attorney drew the jury’s attention to the manner in which Zapel
killed West and Olsen with stabbings “over and over and over again.” 5 VRP (March 17, 2020)
at 1890. The prosecuting attorney argued that as Zapel killed Olsen, “he pauses and then stabs,
then pauses again and then stabs.” 5 VRP (March 17, 2020) at 1890. In the challenged statement
the prosecuting attorney emphasized the amount of time taken to effectuate the killing. The
“method of killing” can provide evidence of premeditation. Pirtle, 127 Wn.2d at 644. Thus, these
statements are not improper.
With regard to the second challenged statement, the prosecuting attorney told the jury that
they must look at the “to-convict” instructions given by the judge, stating, “Those are the elements
that you are to consider, having to prove intent and premeditated intent.” 5 VRP (March 17, 2020)
at 1892. The State then said, “And the evidence shows you that the defendant did act with intent
and that that intent was clearly premeditated.” 5 VRP (March 17, 2020) at 1893. Although the
State failed to distinguish intent and premeditation in these precise comments, the prosecuting
attorney also informed the jury that they must look to the elements of the instructions given by the
court. Further, the reference to premeditated intent was taken directly from the jury instruction on
first degree murder. In context, there was no danger of the jury misunderstanding that intent and
premeditation are distinguishable. Zapel fails to show that these statements are improper.
28 No. 55098-9-II
With regard to the third comment, Zapel argues that the prosecuting attorney blurred the
difference between intent and premeditated intent and that the State argued that a premeditated
intent was required to find Zapel guilty of first degree murder. Again, this statement was taken
from the jury instruction on first degree murder. And the prosecuting attorney told the jury that it
was taken from the jury instructions. This statement also is not improper.
The challenged statements made by the prosecuting attorney were not improper.
Therefore, Zapel’s prosecutorial misconduct challenge fails.
CONCLUSION
The trial court did not abuse its discretion in ruling that Zapel was competent to stand trial,
there was sufficient evidence of premeditation to support the convictions for first degree murder
as charged in Counts I and II, there was insufficient evidence to support the conviction for
attempted first degree murder, and the prosecuting attorney did not commit misconduct during
closing arguments. Therefore, we affirm Zapel’s convictions for first degree murder as charged
in Counts 1 and II, reverse Zapel’s conviction for attempted first degree murder, and remand to
the trial court for entry of the lesser included offense of attempted second degree murder and for
resentencing.
29 No. 55098-9-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, J. We concur:
Maxa, P.J.
Price, J.