State Of Washington, V. Kenneth Sykes Jones ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85279-5-I
Respondent, DIVISION ONE
v.
ORDER WITHDRAWING AND
KENNETH ALEKSANDER SYKES- SUBSTITUTING OPINION
JONES,
Appellant.
The court has determined that the unpublished opinion in the above-
entitled case filed on June 24, 2024 contains a scrivener’s error at page 13, line
15, specifically, “[t]he legislature recently amended the statue.” Accordingly, we
hereby withdraw our opinion and substitute it with a new opinion to address the
scrivener’s error.
Now, therefore, it is hereby
ORDERED that the unpublished opinion filed on June 24, 2024 is
withdrawn and a substitute unpublished opinion shall be filed. The corrected
sentence on page 13, line 15, of the new opinion, shall read as follows: “The
legislature recently amended the statute . . .”
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85279-5-I
Respondent, DIVISION ONE
v.
UNPUBLISHED OPINION
KENNETH ALEKSANDER SYKES-
JONES,
Appellant.
SMITH, C.J. — Kenneth Sykes-Jones was charged with assault in the
second degree and possession of a stolen vehicle. A jury convicted Sykes-
Jones of the latter charge. On appeal, Sykes-Jones contends that the trial court
erred by overruling his GR 37 challenge and allowing the State to use a
peremptory challenge against juror 13. He also asserts that the jury instruction
defining knowledge violated his due process rights because it contained an
inaccurate statement of the law. Finally, Sykes-Jones argues that the victim
penalty assessment should be stricken because he is indigent.
We agree that the victim penalty assessment should be stricken and
remand for the trial court to do so. However, because an objective observer
could not have viewed race or ethnicity as a factor in the use of the peremptory
challenge and because the jury instruction accurately stated the law, we affirm
Sykes-Jones’s conviction.
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FACTS
On November 4, 2020, Kenneth Sykes-Jones was discovered sitting in the
cab of a stolen tow truck by Joel Espana, the truck’s owner. Upon finding Sykes-
Jones, Espana climbed into the cab to confront him. In response, Sykes-Jones
drew a knife and slashed at Espana, slicing his jacket. Sykes-Jones then exited
the cab and fled on foot. Law enforcement responding to the scene found
Sykes-Jones hiding in a nearby dumpster and arrested him. Sykes-Jones was
later charged with assault in the second degree and possession of a stolen
vehicle.
Voir Dire
During voir dire, the court asked the jury pool whether anyone had any
childcare issues, medical issues, or appointments that would keep them from
serving on the jury. Juror 3 indicated that he was a doctor and would miss
appointments if selected to serve on the jury. Juror 13 informed the court that
she was an educator and expressed concern about missing standardized state
testing at her school. The State then asked both jurors whether their work
obligations would impact their ability to focus on the case. Juror 3 replied, “No.”
The State pressed further, asking whether juror 3 would be able to sit through the
trial, listen to the evidence, and render a verdict, to which the juror answered,
“Yes.”
In response to the State’s question, juror 13 indicated that she might have
difficulty staying focused:
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Once I’m here, I will be able to focus, but during the breaks[,] . . .
I will be probably checking [to] see if everything is okay.
Juror 13 confirmed that the students would be able to complete the
standardized testing in her absence, but she expressed concern over how her
absence could affect the students:
My concern is the—because I’m overseeing all those test sessions, if I’m
not there—because things happen during testing. If there’s something out
of ordinary, proctors may not know exactly [what] to do. And if things are
not handled correctly, then we—the test might be invalidated. And also,
there are students who need accommodations for the tests. If they are not
provided, that will be a[n] issue too.
The State asked juror 13 if there was anyone who could cover for her at
school. Juror 13 explained that no one at her school could cover for her, but the
school district might be able to find someone else to assist.
The State later exercised a peremptory challenge against juror 13. Sykes-
Jones raised a Batson1 challenge in response. The State provided the following
justification for the challenge:
My understanding of Batson is [that it is] based on race, gender, or
any other protected class. The State is just excusing Juror Number
13 because we believe that she has a hardship being a teacher. It
had nothing to do with her . . . race or anything of that nature.
Sykes-Jones informed the court that the standard is “whether or not [the
peremptory challenge] could be perceived as being based by race.” The State
reiterated its reasoning, explaining that the peremptory challenge was “not based
on race.” The State noted that it had asked juror 13 similar questions as those it
asked juror 17, who “appear[ed] to be of the same race” as juror 13.2 The State
1 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69(1986).
2 We infer from the record that jurors 3 and 17 were of Asian descent.
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also noted that Sykes-Jones used a peremptory challenge against juror 17. The
court agreed with the State and overruled Sykes-Jones’s challenge, concluding
that the peremptory challenge was “not based upon race, religion, or any of the
other Batson factors” and citing juror 13’s hardship as the basis for the excusal.
When Sykes-Jones asked for clarification as to whether the excusal was a
peremptory challenge or a hardship excusal, the court explained:
It’s a peremptory challenge. I was just making the record outlining
the distinction between your Batson challenge and the reason why
the peremptory is being exercised.
Jury Instructions
Later, during discussions about jury instructions, Sykes-Jones raised
concern that the knowledge jury instruction, related to the possession of a stolen
vehicle charge, misstated the law. Sykes-Jones contended that the instruction
did not make clear to the jury that it needed to find actual knowledge and
therefore, that the instruction was insufficient. The court disagreed, concluding
that the instruction was an accurate statement of law.
The jury acquitted Sykes-Jones of assault in the second degree and the
lesser included offense of assault in the fourth degree, but convicted Sykes-
Jones of possession of a stolen vehicle. The court sentenced him to 47 months
in prison.
ANALYSIS
GR 37
Sykes-Jones contends that the State’s use of a peremptory challenge
against prospective juror 13, who the parties determined was a person of color,
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violated GR 37. We disagree. Because an objective observer could not view
race or ethnicity as a factor in the use of the peremptory challenge, the State’s
use of a peremptory challenge against juror 13 did not violate GR 37.
As an initial matter, the State contends that Sykes-Jones waived this issue
by failing to raise a GR 37 challenge before the trial court. We disagree.
Generally, we will not consider issues raised for the first time on appeal.
RAP 2.5(a); State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007).
Typically, “an objection must apprise the court of the ground upon which it is
made, otherwise no error can be predicated upon it.” State v. Severns, 19 Wn.2d
18, 20, 141 P.2d 142 (1943).
Here, although Sykes-Jones’s counsel stated that she was making a
Batson objection, it is clear that counsel intended to raise a GR 37 challenge
because she described the applicable standard for such a challenge. Moreover,
we note that since the creation of GR 37, any claim of racial bias during jury
selection is subject to a GR 37 analysis, regardless of whether counsel frames
the objection as a Batson challenge or GR 37 challenge. See, e.g., State v.
Jefferson, 192 Wn.2d 225, 249, 429 P.3d 467 (2018) (modifying Batson
framework to incorporate GR 37 analysis); State v. Listoe, 15 Wn. App. 2d 308,
319-20, 475 P.3d 534 (2020) (explaining that GR 37 now applies to claims of
racial bias during jury selection, not Batson); State v. Orozco, 19 Wn. App. 2d
367, 373-77, 496 P.3d 1215 (2021) (noting that GR 37 replaced Batson test for
racial discrimination in jury selection). Because Sykes-Jones explained the
standard for a GR 37 challenge when making his objection to the State’s use of a
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peremptory challenge against juror 13, Sykes-Jones sufficiently apprised the trial
court of the ground upon which the objection was made, and the issue has been
preserved for appeal.
Under GR 37, a party or the court “may object to the use of a peremptory
challenge to raise the issue of improper bias.” GR 37(c). Once such an
objection is raised, the party exercising the peremptory challenge must “articulate
the reasons the peremptory challenge has been exercised.” GR 37(d). The
court must then evaluate the proffered reason considering the totality of the
circumstances and whether “an objective observer could view race or ethnicity as
a factor in the use of the peremptory challenge.” GR 37(e). An “objective
observer” is someone who is “aware that implicit, institutional, and unconscious
biases, in addition to purposeful discrimination, have resulted in the unfair
exclusion of potential jurors in Washington.” GR 37(f). If an objective observer
could view race or ethnicity as being a factor in the use of the challenge, the
court must deny the peremptory challenge. GR 37(e).
The rule provides a non-exhaustive list of circumstances a trial court
should consider when making this determination, including:
(i) the number and types of questions posed to the
prospective juror, which may include consideration of whether the
party exercising the peremptory challenge failed to question the
prospective juror about the alleged concern or the types of
questions asked about it;
(ii) whether the party exercising the peremptory challenge
asked significantly more questions or different questions of the
potential juror against whom the peremptory challenge was used in
contrast to other jurors;
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(iii) whether other prospective jurors provided similar
answers but were not the subject of a peremptory challenge by that
party;
(iv) whether a reason might be disproportionately associated
with a race or ethnicity; and
(v) whether the party has used peremptory challenges
disproportionately against a given race or ethnicity, in the present
case or in past cases.
GR 37(g).
Our Supreme Court has made clear that this list “is not a checklist for trial
courts to cross off but, instead, factors to be considered in making a
determination.” State v. Tesfasilasye, 200 Wn.2d 345, 358, 518 P.3d 193 (2022).
The remedy for a GR 37 violation is reversal. Tesfasilasye, 200 Wn.2d at 362;
but see State v. Hale, 28 Wn. App. 2d 619, 641, 537 P.3d 707 (2023), review
denied, 2 Wn.3d 1026 (2024) (applying harmless error standard where trial court
erred in denying peremptory challenge). We review GR 37 rulings de novo.
State v. Booth, 22 Wn. App. 2d 565, 571, 510 P.3d 1025 (2022).3
Here, the State exercised a peremptory challenge against juror 13 after
the juror indicated that she might be distracted by her work if impaneled. Sykes-
Jones raised a GR 37 objection in response. The State then explained that it
exercised the challenge because it “believe[d] that [juror 13] has a hardship being
a teacher.” The State also noted that it asked juror 13 similar questions as juror
3 Our Supreme Court has noted that de novo review may not be
appropriate in all circumstances, such as where the trial court’s ruling is based on
factual findings or credibility determinations. Tesfasilasye, 200 Wn.2d at 356.
Here, the court made no such findings, and we apply de novo review. See Hale,
28 Wn. App. 2d at 628.
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17, who appeared to be of the same race. The court then overruled Sykes-
Jones’s challenge, explaining:
Well, I do appreciate [Sykes-Jones] bringing it up. I think it
was important for her to make that record. However, I do agree
with [the State]. The real fundamental issue here is not based upon
race, religion, or any of the other Batson factors but based upon the
fact that Juror Number 13 clearly indicated that she is needed if
this—back at school as a teacher or as, I think, an ES—English as
a second language coordinator is a better way of putting it. She is
needed on Monday to administer tests that would affect other
students, [and] she’s the only one who could do it. And so we’d be
running the risk, if we keep her on the jury panel, of making her the
alternate—the automatic alternate, because that would be the only
way we could maybe go forward with that knowledge.
Because the challenge has been made, I’m going to
exercise my discretion not to allow the challenge at this time but to
have—to have—Juror 13 will be excused on the basis of her work
hardship and solely on the basis of her work hardship. I want to
make that very clear.
The court clarified that juror 13 was dismissed by use of a peremptory
challenge:
I was just making the record outlining the distinction between your
Batson challenge and the reason why the peremptory is being
exercised.
In evaluating the State’s offered reason for striking the juror, we consider
the circumstances listed in GR 37(g). Relevant here are circumstances (i), (ii),
and (iii) because the record does not implicate considerations (iv) and (v).
Circumstances (i) and (ii) ask us to consider the number and type of
questions posed to juror 13 as compared to other jurors. GR 37(g)(i)-(ii). Only
one other juror, juror 3, was questioned about whether their work obligations
might impact their ability to serve on the jury. The prosecutor asked juror 3 nine
questions, three of which related to the juror’s ability to focus on the case, and
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asked juror 13 five questions, all of which were about her ability to focus on the
case despite work obligations. But though the prosecutor asked juror 13 more
work-related questions than juror 3, juror 13 answered equivocally and gave
answers that merited further exploration by the prosecutor. For example, while
juror 13 indicated that she could focus during the proceedings, she also admitted
that during breaks she would “be probably checking [to] see if everything is
okay.” And contrary to Sykes-Jones’s contention that the prosecutor asked
needless follow-up questions, the prosecutor’s additional questions about the
impact of juror 13’s absence from her work were clearly intended to flesh out the
extent to which juror 13 might be distracted by missing work. The equivocal
nature of juror 13’s answer invited the prosecutor to ask two additional follow-up
questions. In contrast, juror 3 responded unequivocally with one-word answers:
when asked whether their work would affect how they viewed the case, juror 3
replied, “No.”
We note, too, that the prosecutor also asked follow-up questions of juror 3
when necessary. At one point during jury selection, juror 3 informed the court
that he had been the victim of two violent crimes. When asked whether those
experiences would impact how he viewed the case, juror 3 answered, “No, I don’t
think so.” In response to this equivocal answer, the State asked juror 3 two
follow-up questions, indicating that the State treated both juror 3 and 13 similarly
by clarifying the jurors’ equivocal responses with additional questions when
necessary. Viewed objectively, circumstances (i) and (ii) do not show that juror
13’s race or ethnicity was a factor in the State’s use of a peremptory challenge.
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Circumstance (iii) asks us to consider the reasons for the peremptory
challenge in light of whether jurors who were not the subject of a challenge gave
similar answers as juror 13. Here, no other juror indicated that their work
obligations could distract them at any point during the trial. Therefore,
circumstance (iii) also does not show that juror 13’s race or ethnicity was a factor
in the State’s use of a peremptory challenge.
Still, Sykes-Jones argues that rather than exercising a peremptory against
the juror, the State should have requested that juror 13 be dismissed for
hardship. The trial court possesses considerable discretion in determining
whether to dismiss a juror for hardship. In general, “no person may be excused
from jury service by the court except upon a showing of undue hardship, extreme
inconvenience, public necessity, or any reason deemed sufficient by the court for
a period of time the court deems necessary.” RCW 2.36.100(1).
Here, juror 13 stated that her absence from work might negatively impact
her students but that someone else may be able to fill in for her. This concern
does not rise to the level of “undue hardship,” “extreme inconvenience,” or “public
necessity” that is typical of a hardship dismissal. Nevertheless, we note that a
hardship is neither a presumptively invalid basis for dismissing a juror nor one
historically associated with bias.
The reason offered by the State in the present case is a legitimate, race-
neutral reason. In light of the totality of the circumstances, an objective observer
aware of the realities of implicit bias could not view race as a factor in the State’s
peremptory challenge.
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Jury Instructions on Knowledge
Sykes-Jones contends that the trial court’s instruction defining knowledge
violated his due process rights by allowing the jury to find him guilty based on
constructive rather than actual knowledge that the vehicle was stolen. We
disagree.
As an initial matter, we note that the parties disagree as to the appropriate
standard of review. Sykes-Jones maintains that the applicable standard of
review is de novo because the constitutionality of jury instructions is a question of
law. The State counters that the trial court’s decision to give a proposed jury
instruction is reviewed for an abuse of discretion standard. We agree with
Sykes-Jones. It is well-established that we review de novo included jury
instructions that allegedly contain an error of law. Del Rosario v. Del Rosario,
152 Wn.2d 375, 382, 97 P.3d 11 (2004).
“Basic principles of due process require the State to prove every essential
element of a crime beyond a reasonable doubt.” State v. Cantu, 156 Wn.2d 819,
825, 132 P.3d 725 (2006); U.S. CONST. amend. XIV. Knowledge that a vehicle is
stolen is an essential element of the charge of possession of a stolen vehicle.
State v. Level, 19 Wn. App. 2d 56, 59, 493 P.3d 1230 (2021). There are two
components to this knowledge element: a defendant’s possession of the vehicle
must be knowing, and the defendant must act with knowledge that the vehicle is
stolen. Level, 19 Wn. App. 2d at 59-60.
Sykes-Jones contends that the instruction misled the jury because it failed
to clearly explain that actual knowledge is required for the jury to find Sykes-
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Jones guilty. State v. Shipp, 93 Wn.2d 510, 610 P.2d 1322 (1980), is instructive
here. In Shipp, our Supreme Court considered the constitutionality of a jury
instruction that was based on the statutory definition of knowledge set forth in
RCW 9A.08.010. 93 Wn.2d at 513-14. That statute provides that
[a] person knows or acts knowingly or with knowledge when:
(i) He or she is aware of a fact, facts, or circumstances or result
described by a statute defining an offense; or
(ii) He or she has information which would lead a reasonable
person in the same situation to believe that facts exist which facts
are described by a statute defining an offense.
RCW 9A.08.010(1)(b).
The court noted that a juror could misinterpret the statute to allow a finding
of knowledge “if an ordinary person in the defendant’s situation would have
known” the fact in question. Shipp, 93 Wn.2d at 514. The court then concluded
that the use of the statutory language violated due process because it could be
interpreted by the jury as creating a mandatory presumption of knowledge where
only a permissive inference is constitutionally permissible. Shipp, 93 Wn.2d at
514-16. The court explained that the knowledge statute was constitutional only
when interpreted as “permitting, rather than directing, the jury to find that the
defendant had knowledge if it finds that the ordinary person would have had
knowledge under the circumstances.” Shipp, 93 Wn.2d at 516.
After Shipp, WPIC 10.02 was amended to correct the problem identified
by the court. See State v. Leech, 114 Wn.2d 700, 710, 790 P.2d 160 (1990).
The revised pattern jury instruction provides that a jury is permitted but not
required to find that a defendant acted with knowledge if the defendant has
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information that would lead a reasonable person to believe that facts exist that
constitute a crime. 11 WASHINGTON PRACTICE: W ASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 10.02 (5th ed. 2008) (WPIC). Since then, Washington
courts have repeatedly upheld the language in the revised pattern jury instruction
as constitutional. See e.g., Leech, 114 Wn.2d at 710; State v. Barrington, 52
Wn. App. 478, 485, 761 P.2d 632 (1988); State v. Rivas, 49 Wn. App. 677, 689,
746 P.2d 312 (1987); State v. Kees, 48 Wn. App. 76, 81-82, 737 P.2d 1038(1987).
Here, the instruction given by the trial court was the revised pattern jury
instruction,4 which avoids the due process problem identified by the court in
Shipp. Therefore, the instruction was an accurate statement of the law and was
not unconstitutional.
Victim Penalty Assessment
Sykes-Jones also contends that because he is indigent, the victim penalty
assessment should be stricken. The legislature recently amended the statute
4 The jury instruction at issue states:
A person knows or acts knowingly or with knowledge with
respect to a fact, circumstance, or result when he or she is aware of
that fact, circumstance, or result. It is not necessary that the
person know that the fact, circumstance, or result is defined by law
as being unlawful or an element of a crime.
If a person has information that would lead a reasonable
person in the same situation to believe that a fact exists, the jury is
permitted but not required to find that he or she acted with
knowledge of that fact.
When acting knowingly as to a particular fact is required to
establish an element of a crime, the element is also established if a
person acts intentionally as to that fact.
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governing victim penalty assessments to prohibit the imposition of such an
assessment if the court finds that the defendant is indigent at the time of
sentencing. See LAWS OF 2023, ch. 449, § 1. Although the amendment did not
take effect until after Sykes-Jones was sentenced, it applies retroactively to
Sykes-Jones because this case is on direct appeal and he is indigent. State v.
Ellis, 27 Wn. App. 2d 1, 17, 530 P.3d 1048 (2023). The State does not oppose
remand to strike the victim penalty assessment. Therefore, we remand for
Sykes-Jones to move the court to strike the fee.
Affirmed and remanded for Sykes-Jones to move to strike the victim
penalty assessment.
WE CONCUR:
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