State Of Washington, Respondent V. Cody Messer, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
Respondent.
v.
CODY MESSER,
Appellant.
No. 86831-4-I
DIVISION ONE
UNPUBLISHED OPINION
P ER CURIAM — Cody Messer appeals his convictions of rape of a child in the first
degree and child molestation in the first degree, both designated as domestic violence
offenses. 	Messer contends, among other things, that the trial court erred by allowing
the State to exercise a peremptory challenge to excuse Juror 29, a member of the
venire who self-identified as a female of Indian descent, over Messer’s GR 37 objection.
Under GR 37, “[i]f 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 shall be denied.” GR 37(e). “The court need not find purposeful discrimination
to deny the peremptory challenge.” Id.
The State concedes error, acknowledging that “the trial court should have
sustained Messer’s GR 37 objection and retained Juror 29.” The State observes that at
least one of the justifications provided by the prosecutor “directly implicates GR 37(i)”
(reasons historically associated with improper discrimination) and, in light of the record,

No. 86831-4-I/2
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none of the other bases for excusal were “sufficiently compelling to foreclose the
possibility that race or ethnicity could have been a factor” in the decision to challenge
Juror 29.
We accept the State’s concession of error, reverse Messer’s convictions, and
remand for a new trial. 	See State v. Lahman, 17 Wn. App. 2d 925, 938, 488 P.3d 881
(2021) (reversing and remanding for a new trial after determining that the trial court
should have sustained the defendant’s GR 37 objection). Given our remand for retrial, it
is unnecessary to address the remaining assignments of error in Messer’s opening brief
and Statement of Additional Grounds for Review.
Reversed and remanded.
FOR THE COURT: