IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

KENNETH ALEKSANDER SYKESJONES,

Appellant.

No. 85279-5-I 

DIVISION ONE

UNPUBLISHED OPINION

SMITH, C.J. — Kenneth Sykes-Jones was charged with assault in the 

second degree and possession of a stolen vehicle. A jury convicted SykesJones 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 SykesJones, 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. SykesJones 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 SykesJones 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 
No. 85279-5-I/6

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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;
No. 85279-5-I/7

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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. SykesJones 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. 
No. 85279-5-I/8

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17, who appeared to be of the same race. The court then overruled SykesJones’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 
No. 85279-5-I/9

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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.
No. 85279-5-I/10

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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, raceneutral 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. 
No. 85279-5-I/11

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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-
No. 85279-5-I/12

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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 
No. 85279-5-I/13

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information that would lead a reasonable person to believe that facts exist that 

constitute a crime. 11 WASHINGTON PRACTICE: WASHINGTON 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 statue 

 

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.
No. 85279-5-I/14

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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: