State Of Washington, V. Shawn Lamar Bell

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE

STATE OF WASHINGTON,
No. 85684-7-I
Respondent,
ORDER DENYING MOTION
v. FOR RECONSIDERATION
AND WITHDRAWING AND
SHAWN LAMAR BELL, SUBSTITUTING OPINION

Appellant.

The respondent, State of Washington, has filed a motion for

reconsideration of the opinion filed on February 5, 2024. The appellant, Shawn

Bell, has filed an answer to the motion. The court has considered the motion and

answer, and a majority of the panel has determined that the motion should be

denied but the opinion should be withdrawn and a substitute opinion filed; now,

therefore, it is

ORDERED that the motion for reconsideration is denied; and it is further

ORDERED that the opinion filed on February 5, 2024 is withdrawn; and it is

further

ORDERED that a substitute unpublished opinion shall be filed.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
No. 85684-7-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
SHAWN LAMAR BELL,

Appellant.

BIRK, J. — Following two incidents at retail stores in Puyallup and Tacoma,

the State charged Shawn Bell with robbery, assault, rape, attempted kidnapping,

and burglary. A jury convicted Bell on all counts except attempted kidnapping.

Bell appeals, asserting among other alleged errors that the trial court erred by

allowing the State to exercise a peremptory challenge contrary to GR 37. We

agree, and for this reason we reverse Bell’s convictions and remand for a new trial.

Bell also argues substantial evidence does not support his rape and burglary

convictions. We hold that substantial evidence exists. We do not reach Bell’s

other assignments of error.

I

A

Bell’s trial began March 7, 2022 with the following two and a half days

dedicated to individual voir dire. The trial court then presided over general voir

dire of the entire panel.
No. 85684-7-I/2

During general voir dire, the State asked juror 39, “How do you determine

whether somebody is telling the truth? What do you look for?” Juror 39 responded,

“Their body or eye contact, the way they speak, evidence and facts.” Later, the

State asked the prospective jurors as a group who had served on a criminal trial

before and juror 39 answered affirmatively by raising his placard. Juror 39 stated

his previous jury service occurred about four years before, and he did not think

there were any law enforcement officers who testified at that trial.

Defense counsel spent time discussing the presumption of innocence with

several jurors. After questioning another juror, defense counsel turned to juror 39

and asked, “Juror 39, what do you think?” Juror 39 responded, “I wasn’t paying

attention. I lost track. What was the question?” The following exchange then took

place between defense counsel and juror 39:

MR. TOLZIN: If I sit down, after I get [done] talking to you, and
I don’t say another word for the rest of this trial, what impact do you
think that’s going to have on the presumption of innocence for you?

Would you think that’s a con that my client did it?

PROSPECTIVE JUROR: Like if the person kind of gave up?

MR. TOLZIN: Yes, so would you hold that against my client?

PROSPECTIVE JUROR: Yeah, because I wouldn’t hear all of
the information on everything.

MR. TOLZIN: If I said a few words but he himself didn’t say
anything, would that be a problem for you?

PROSPECTIVE JUROR: He might incriminate himself and
put himself into something.

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No. 85684-7-I/3

MR. TOLZIN: Do you think the fact that he doesn’t say a word,
that I make a decision that he isn’t going to say anything, do you think
that in any way incriminates him in this case?

PROSPECTIVE JUROR: Maybe he gives you the power to
say that.

Neither party asked juror 39 any additional questions.

At the end of voir dire, the State exercised a peremptory challenge against

juror 39. Bell objected under GR 37. The State responded indicating “the issue”

it had with juror 39 was “the same as we had” with another juror, that in response

to defense counsel’s questioning juror 39 “kind of registered a stunned reaction

and said, ‘Sorry. I wasn’t paying attention.’ ” The State attributed its concern to

juror 39 “overtly” stating he was not paying attention. The trial court believed juror

39 to be a person of color and “[Juror 39’s] comments that he made during the voir

dire process, limited though they may be, seemed to demonstrate either a

confusion about the circumstances that he was being questioned about or

inattention.” Defense counsel noted juror 39 was the only male person of color

who was not numerically prohibited from being seated for the remainder of the trial.

GR 37(i) provides as follows:

The following reasons for peremptory challenges also have
historically been associated with improper discrimination in jury
selection in Washington State: allegations that the prospective juror
was sleeping, inattentive, or staring or failing to make eye contact
. . . . If any party intends to offer one of these reasons or a similar
reason as the justification for a peremptory challenge, that party must
provide reasonable notice to the court and the other parties so the
behavior can be verified and addressed in a timely manner. A lack
of corroboration by the judge or opposing counsel verifying the
behavior shall invalidate the given reason for the peremptory
challenge.

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No. 85684-7-I/4

Citing GR 37(i), the court commented, “Juror 39’s inattention was corroborated by

his own acknowledgement, and he even said so. It’s on the record.” The trial court

denied Bell’s GR 37 challenge and granted the State’s peremptory challenge to

juror 39.

B

Bell argues the trial court erroneously granted the State’s peremptory

challenge to juror 39 over his GR 37 objection. We agree.

Washington appellate courts have applied de novo review under GR 37

when addressing whether an objective observer could conclude that race or

ethnicity was a factor in a peremptory challenge. State v. Tesfasilasye, 200 Wn.2d

345, 355-56, 518 P.3d 193 (2022). In Tesfasilasye, the Supreme Court applied de

novo review because “there were no actual findings of fact and none of the trial

court’s determinations apparently depended on an assessment of credibility.” Id.

Tesfasilasye left open the possibility that a standard of review other than de novo

could apply in some GR 37 cases, but it did not define the circumstances in which

this would be appropriate. Neither party asserts that we should depart from the

decisional law applying de novo review.

The United States and Washington State Constitutions require an impartial

jury. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; Tesfasilasye, 200 Wn.2d

at 356. The parties and the jurors have the right to a trial process free from

discrimination. Powers v. Ohio, 499 U.S. 400, 409, 111 S. Ct. 1364, 113 L. Ed. 2d

411 (1991). The constitutions require nothing else, but tradition, statutes and court

rules created peremptory challenges. Tesfasilasye, 200 Wn.2d at 356. Parties

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No. 85684-7-I/5

may use these challenges to strike a limited number of otherwise qualified jurors

without providing a reason. See RCW 4.44.130, .140; CrR 6.4(e). Peremptory

challenges have a history of being used based on racial stereotypes. Tesfasilasye,

200 Wn.2d at 356. GR 37 was created to address this misuse of peremptory

challenges and to overcome the shortcomings of Batson v. Kentucky, 476 U.S. 79,

106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Tesfasilasye, 200 Wn.2d at 357.

Under GR 37(c), a party or the court may object to the use of a peremptory

challenge to raise the issue of improper bias. Upon objection to the exercise of a

peremptory challenge pursuant to the rule, the party exercising the challenge must

articulate the reasons that the peremptory challenge was exercised. GR 37(d).

Then, the trial court must evaluate the reasons given to justify the peremptory

challenge in light of the totality of circumstances. GR 37(e). GR 37(g) outlines a

nonexhaustive list of several circumstances the trial court should consider. State

v. Listoe, 15 Wn. App. 2d 308, 321-22, 475 P.3d 534 (2020); State v. Lahman, 17

Wn. App. 2d 925, 936, 488 P.3d 881 (2021).

If the court determines that an objective observer could view race or

ethnicity as a factor in the use of the peremptory challenge, then the peremptory

challenge must be denied, and the trial court should explain its ruling on the record.

GR 37(e). The remedy for a GR 37 violation in a criminal case is reversal of the

conviction. Tesfasilasye, 200 Wn.2d at 362; Lahman, 17 Wn. App. 2d at 938. This

remedy applies regardless of the strength of the State’s case or the hardship to

victims or witnesses. Lahman, 17 Wn. App. 2d at 932.

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No. 85684-7-I/6

The State concedes1 it never gave notice of its intent to challenge juror 39

based on his being “inattentive,” despite the command of the rule that a party

wishing to rely on this or another ground listed in GR 37(i) “must provide

reasonable notice to the court and the other parties so the behavior can be verified

and addressed in a timely manner.” In State v. Hillman, the defendant exercised

a peremptory challenge against the lone Black person from the jury venire because

defense counsel deemed the juror’s demeanor as reflective of inattention and

disinterest. 24 Wn. App. 2d 185, 189-90, 196, 519 P.3d 593 (2022). The

prosecutor agreed that the juror did not seem animated, but disagreed that the

juror lacked interest in the proceeding and objected to the peremptory challenge

under GR 37, which the trial court sustained. Id. at 190. The Hillman court noted

defense counsel failed to bring his concerns regarding the juror’s demeanor until

after the close of juror questioning. Id. at 196. Citing GR 37(i), Hillman held

defense counsel’s failure to bring these concerns to the attention of the court and

opposing counsel prior to the close of questioning invalidated the purported

justification for the peremptory strike. Id. at 196-97.

The present case is analogous. GR 37(i) required the State to provide

“reasonable notice” to the trial court and Bell “so [juror 39’s] behavior [could] be

verified and addressed in a timely manner.” While juror 39 verified his

inattentiveness through his own admission, the State’s failure to bring its concerns

to the trial court’s or defense counsel’s attention until after the close of questioning

1
Wash. Court of Appeals oral argument, State v. Bell, No. 85684-7-I (Nov.
15, 2023), at 8 min., 33 sec. to 8 min., 59 sec., https://tvw.org/video/division-1-
court-of-appeals-2023111168/.

6
No. 85684-7-I/7

prevented the behavior from being “addressed in a timely manner.” GR 37(i).

Neither Bell nor the trial court were afforded an opportunity to ask juror 39 about

the length, extent, or significance of any inattentiveness. The State failed to follow

the requirements of GR 37(i), and this error requires a new trial.

II

Although we reverse and remand because of the GR 37 violation, we

address Bell’s sufficiency of the evidence arguments as to his burglary and rape

convictions.

Due process requires the State to prove “ ‘beyond a reasonable doubt . . .

every fact necessary to constitute the crime with which [a defendant] is charged.’ ”

State v. W.R., 181 Wn.2d 757, 762, 336 P.3d 1134 (2014) (alterations in original)

(quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)).

Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing

the evidence in the light most favorable to the State, could find the elements of the

charged crime beyond a reasonable doubt. State v. Cardenas-Flores, 189 Wn.2d

243, 265, 401 P.3d 19 (2017). In a sufficiency of the evidence claim, the defendant

admits the truth of the State’s evidence and all inferences that reasonably can be

drawn from that evidence. State v. Colquitt, 133 Wn. App. 789, 796, 137 P.3d 892

(2006). “Nevertheless, the existence of a fact cannot rest upon guess, speculation,

or conjecture.” Id. Sufficiency of the evidence is a question of constitutional law

that we review de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016).

7
No. 85684-7-I/8

A

Bell argues the State failed to prove that he entered or remained in the

“Lovers” store unlawfully. We disagree.

1

The State put on evidence that on March 8, 2019, Carolyn Nance and Alisha

Marquez were closing Lovers, a Puyallup adult store. Nance was at the front when

someone entered the store. Nance went to greet the customer but “very quickly

found out that it was not a customer,” because the person had a mask on his face

and “he was approaching me with his hands up and was coming for me.” Nance

described the mask as shiny, orange, “very streaky looking,” and “was a costume

mask, a Halloween mask.” Nance observed the person wore “baggy, hooded

clothes.” Marquez described the mask as a “jack o’lantern mask.” The masked

man put his hands on Nance and backed her against a wall with his hands around

her throat. With one hand on Nance’s throat and another on the back of her neck,

the masked man guided Nance to the cash register.

The masked man asked if Nance was alone in the store, and Nance said

there was an associate in the back. After directing her to open the register and put

the money in a bag he was carrying, Nance testified he “kind of [dragged] me back

to the back of the store where the other associate was.” Nance testified she did

not feel like she had a choice to do this and was not in a safe situation because

“he had put his hands on me.” Marquez testified she was in the back of the store

closing her register when she saw Nance come to the back with somebody in a

mask holding her neck. The masked man instructed Nance and Marquez to put

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No. 85684-7-I/9

the store’s phones, the deposit that was being prepared, and their personal cell

phones into his bag. On their way out, the masked man took several items from

the store, including battery operated vibrators, performance enhancement pills,

and dildos. When they reached the store entrance, the masked man said, “ ‘You’re

coming with me,’ and [Marquez] said, ‘No, the fuck she’s not,’ ” then she grabbed

Nance’s arm and pulled her back. The masked man left.

Michelle Lund, a police administrative support specialist at Tacoma Police

Department, testified that she heard about the Lovers store incident on the news.

Lund watched Lovers store surveillance video the Puyallup Police Department

posted on their Facebook page, and the suspect’s orange, metallic-looking mask

caught her attention. Together with the mask and the suspect’s body size and

type, Lund believed the suspect to be Bell.

Nance testified exhibit 91 was the mask the man wore. Exhibit 91 was

obtained from execution of a search warrant at Bell’s business.

2

“A person is guilty of burglary in the first degree if, with intent to commit a

crime against a person or property therein, he or she enters or remains unlawfully

in a building and if, in entering or while in the building or in immediate flight

therefrom, the actor or another participant in the crime (a) is armed with a deadly

weapon, or (b) assaults any person.” RCW 9A.52.020(1). A person “enters or

remains unlawfully” in or on the premises when he or she is not then licensed,

invited, or otherwise privileged to so enter. RCW 9A.52.010(2). “A license or

privilege to enter or remain in a building which is only partly open to the public is

9
No. 85684-7-I/10

not a license or privilege to enter or remain in that part of a building which is not

open to the public.” Id.

The license to enter or remain may be limited as to time, place, or purpose

and may be revoked. State v. Lambert, 199 Wn. App. 51, 73, 395 P.3d 1080

(2017). Depending on the “actual facts of the case,” a limitation on or revocation

of the privilege to be on the premises may be inferred from circumstances. State

v. Collins, 110 Wn.2d 253, 255, 261, 751 P.2d 837 (1988) (defendant remained

unlawfully on the premises, because he exceeded the scope of his invitation and

committed crimes).

In Lambert, a jury found the defendant guilty of first degree burglary of the

residences of his parents and grandparents. 199 Wn. App. at 68-69. Trial

evidence showed the defendant entered his family’s residences with permission,

before attacking and killing his paternal grandfather and maternal grandfather. Id.

at 56-58. The defendant argued his burglary convictions were supported by

insufficient evidence because he did not enter or remain unlawfully in a family

member’s residence. Id. at 72. Lambert held, “A jury could also reasonably infer

that any invitation to enter and remain in the house was revoked when Lambert

attacked [his paternal grandfather].” Id. at 73. Viewing the evidence in the light

most favorable to the State, a jury could reasonably infer the invitation to the

defendant to enter the house was limited to a single purpose—to visit his

grandfather. Id.

Bell relies on State v. Miller, in which the court reversed and dismissed a

second degree burglary conviction because the defendant did not enter or remain

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No. 85684-7-I/11

unlawfully in a car wash. 90 Wn. App. 720, 723, 730, 954 P.2d 925 (1998). The

defendant entered a self-service car wash, washed his truck, and broke into

several coin boxes in three wash bays. Id. at 723. The car wash, open for

business 24 hours a day, consisted of wash bays with a roof, side walls, and no

doors. Id. Miller reasoned it was immaterial whether the defendant formulated the

intent to steal the contents of the coin boxes before he entered the car wash or

after he was already present. Id. at 725. “Washington law does not provide that

entry or remaining in a business open to the public is rendered unlawful by the

defendant’s intent to commit a crime.” Id.

The defendant in Miller did not assault an employee, did not enter an

employee-only area of the business, and did not prevent an employee from

contacting law enforcement. Evidence taken in the light most favorable to the

State showed Bell did all of these things at the Lovers store. Any license to enter

was revoked when Bell committed an assault against Nance by grabbing her,

placing his hands on her throat and neck, and forcing her to place store property

into his bag. The evidence was sufficient to support a first degree burglary

conviction.

B

Bell argues the evidence was insufficient to prove he committed second

degree rape because the State could not prove forcible compulsion. We disagree.

1

The State put on evidence that in the early morning hours of March 11,

2019, Joseph Marco and B.C. were closing the Castle Megastore, an adult store

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No. 85684-7-I/12

in Tacoma. Marco testified that after closing and exiting the store out the store’s

back door and into the loading area with B.C., “[p]retty immediately we saw

somebody come from behind the dumpster and come towards us.” Marco

described the individual as wearing black sweats, a black hoodie pulled up, a

backpack, and an orange mask that was “bright and shiny.” B.C. testified the man

was in all black and wore an orange, shiny, metallic mask. The masked man

grabbed Marco by his collar, demanding to let him into the store. Marco lied and

said he did not have store keys because he “didn’t want this to go any further.”

The masked man punched Marco in the face, causing Marco’s glasses to fly off so

Marco “was pretty much disabled at that point in time.”

B.C. testified they walked away from the street and lower down into the

loading dock area. B.C. testified the masked man grabbed her t-shirt, brought her

face close to his face, and told her that he “would fuck me in the parking lot, right

there in the parking lot.” Marco testified that after the masked man punched him,

the masked man “basically said that he was going to fuck [B.C.] because he

couldn’t get in the store,” and “[h]e was frustrated.” Marco did not remember B.C.

saying much, but he tried pleading with the masked man and said, “ ‘Please don’t

hurt us.’ ” Marco testified the masked man then said, “ ‘Suck my dick.’ ”

B.C. testified, “[The masked man] was going to make me suck him off. At

that point he had put his hands on my shoulders and kind of pushed me down to

the ground.” B.C. clarified, “It was just he pushed me lightly.” B.C. did not feel like

she could run away because she “just didn’t want to take the chance of not getting

away” and did not feel she was able to just leave on her own. B.C. testified the

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No. 85684-7-I/13

masked man “pulled down his pants, and he forced me to perform oral sex on him,”

and “[h]e forced his penis into my mouth. I had kind of stopped at one point, and

he made the comment to suck it like I mean it.” The masked man continued to

force B.C. to perform oral sex “[b]y pressing himself in [her] mouth.” Eventually

the masked man stopped, pulled up his pants, and told B.C. and Marco to run and

that he would be back the following night. At some point, the masked man

demanded B.C.’s phone, she gave it to him, and he threw her phone in the street.

B.C. and Marco testified exhibit 91 was the mask the man wore that night.

On cross-examination, when asked, “[The man] never threatened you,

right,” B.C. responded, “Not with a weapon no.” Other than when the man

threatened “to F [her],” B.C. agreed the masked man did not “make any threats

towards [her] at all the entire time.”

Forensic scientist Jennifer Hayden completed a DNA analysis on oral

swabs collected from B.C. during a sexual assault exam and testified it was 870

octillion times more likely the profile was the result of B.C. and Bell than B.C. and

an unknown individual.

2

A person is guilty of second degree rape when the person engages in

sexual intercourse with another person by forcible compulsion. RCW

9A.44.050(1)(a). “Forcible compulsion” means physical force which overcomes

resistance, or a threat, express or implied, that places a person in fear of death or

physical injury to herself or himself or another person, or in fear that she or he or

another person will be kidnapped. RCW 9A.44.010(3).

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No. 85684-7-I/14

The required physical force must have been force that was “ ‘directed at

overcoming the victim’s resistance and was more than that which is normally

required to achieve penetration.’ ” State v. Gene, 20 Wn. App. 2d 211, 224, 499

P.3d 214 (2021) (quoting State v. McKnight, 54 Wn. App. 521, 528, 774 P.2d 532

(1989)). “ ‘Forcible compulsion is not the force inherent in any act of sexual

touching, but rather is that used or threatened to overcome or prevent resistance

by the [victim].’ ” Id. (alteration in original) (internal quotation marks omitted)

(quoting State v. Corey, 181 Wn. App. 272, 277, 325 P.3d 250 (2014)). The

resistance that forcible compulsion overcomes need not be physical resistance,

but it must be reasonable resistance under the circumstances. Id. Whether the

evidence establishes the element of resistance is a fact-sensitive determination

based on the totality of the circumstances, including the victim’s words and

conduct. McKnight, 54 Wn. App. at 526.

A threat for purposes of forcible compulsion cannot be based solely on the

victim’s subjective reaction to particular conduct. State v. Weisberg, 65 Wn. App.

721, 725, 829 P.2d 252 (1992). “Threat” means to communicate, directly or

indirectly the intent to “cause bodily injury in the future to the person threatened or

to any other person.” RCW 9A.04.110(28)(a). “[T]here must be some evidence

from which the jury could infer that not only did [the victim] perceive a threat, but

also that [the defendant] in some way communicated his intention to inflict physical

injury in order to coerce compliance.” Weisberg, 65 Wn. App. at 726.

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No. 85684-7-I/15

Viewing the evidence in the light most favorable to the State and drawing

all reasonable inferences from the evidence, there is sufficient evidence in the

record to prove forcible compulsion. B.C.’s testimony that the assailant grabbed

her shirt, brought her towards him, and pushed B.C. to the ground, even “lightly,”

permits a jury to find force directed at overcoming the victim’s resistance. Gene,

20 Wn. App. 2d at 224. B.C.’s testimony supports the inference that she resisted

because the man “pushed” her to the ground. Further, before the man forced B.C.

to perform oral sex on him, he grabbed Marco by the collar and punched him in

the face, and, when he grabbed B.C. by her shirt and brought her close to his face

he told her he “would fuck [her] in the parking lot, right there in the parking lot,” and

at some point took B.C.’s phone away to prevent her from contacting the police.

And when B.C. paused while performing oral sex on the man, he told B.C. to “suck

it like [you] mean it.” A jury may conclude the man made a “threat” within the

meaning of the statute because he “communicated his intention to inflict physical

injury in order to coerce compliance” through his violent and coercive actions

leading up to and during the rape. Weisberg, 65 Wn. App. at 726. The evidence

was sufficient to support a second degree rape conviction.

III

In light of our disposition, we do not reach Bell’s claims of error in his brief

of appellant and his statement of additional grounds concerning a lesser degree

instruction on third degree rape, seizure of his phone, ineffective assistance of

counsel, DNA collection, alleged violation of Franks v. Delaware, 438 U.S. 154,

155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), alleged violation of Brady v.

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No. 85684-7-I/16

Maryland, 373 U.S. 83, 86, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), alleged

appeals to racial bias in closing argument in violation of State v. Monday, 171

Wn.2d 667, 678, 257 P.3d 551 (2011), and sentencing error.

Reversed and remanded.

WE CONCUR:

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