State of Washington v. Tyler Terell Bagby

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
TYLER TERELL BAGBY,
Appellant.
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No. 36530-1-III
UNPUBLISHED OPINION
LAWRENCE-BERREY, J. — Tyler Bagby appeals his convictions for residential
burglary, harassment, and fourth degree assault. We reject his arguments of prosecutorial
misconduct (implicit racial bias) and instructional error and affirm.
FACTS
Tyler Bagby, a Black American student at Washington State University, went to a
fraternity party with three friends, Solomon Cooper, Shyla Roberson, and Kailah
Crisostomo. Ms. Crisostomo had been dating Mr. Bagby for a couple of weeks and
attended nearby University of Idaho. The group had shots of vodka before the party and
they continued to drink at the fraternity.
At one point, Ms. Crisostomo separated from Mr. Bagby and went into the
fraternity’s coed bathroom. When Ms. Crisostomo did not return, Mr. Bagby asked Ms.
FILED
APRIL 20, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

No. 36530-1-III
State v. Bagby
2
Roberson to see if his girlfriend was alright. Ms. Roberson found Ms. Crisostomo in the
bathroom crying, saying she did not want to go home with Mr. Bagby.
At some point, Mr. Bagby entered the bathroom and asked what was going on.
Ms. Roberson told him that she could take Ms. Crisostomo home. Mr. Bagby argued with
her and insisted that he take Ms. Crisostomo home. He began hitting the stall door and
continued to demand that Ms. Crisostomo come with him.
Three other people at the fraternity party watched this unfold—Austin Davis,
Sabrina Manzo, and Leann Griffith. None of those three people knew Mr. Bagby or
either of the two women.
Mr. Davis, a white man, attempted to intervene and get Mr. Bagby to leave the
bathroom. Mr. Bagby responded by punching Mr. Davis, causing him to lose
consciousness and fall to the ground. Mr. Bagby continued punching Mr. Davis. Mr.
Bagby was restrained and removed from the fraternity by his friend, Mr. Cooper. Ms.
Roberson was able to leave the party with Ms. Crisostomo and the two went to Ms.
Roberson’s apartment.
Over the next 40 minutes, Mr. Bagby repeatedly called and texted Ms. Roberson,
sending her insulting and threatening messages. Approximately 10 minutes later, Mr.
Bagby arrived at Ms. Roberson’s apartment and began loudly banging on her door. He

No. 36530-1-III
State v. Bagby
3
forced the door open and made his way into the apartment where he began yelling at Ms.
Crisostomo. Ms. Roberson called 911 and Ms. Crisostomo locked herself in a bedroom.
Daniel Robinett and Elizabeth Nelson heard the yelling and tried to assist the two
women. Mr. Robinett and Ms. Nelson did not know each other nor did they know Mr.
Bagby or the two women. Mr. Robinett and Ms. Nelson intervened and tried to get Mr.
Bagby to leave. About this time, officers from the Pullman Police Department arrived
and escorted Mr. Bagby away.
The State charged Mr. Bagby with one count of residential burglary, one count of
third degree malicious mischief, one count of harassment, and one count of fourth degree
assault.
Prior to trial, both parties submitted their proposed jury instructions. The
instructions proposed by Mr. Bagby included the standard voluntary intoxication
instruction. The State’s proposed instructions did not include a voluntary intoxication
instruction.
At trial, the State called multiple witnesses. Many did not know Mr. Bagby or Mr.
Davis. The prosecutor and defense counsel often asked these witnesses questions about
what they saw and at times referred to either the nationality, race, or ethnicity of the
person they were describing:

No. 36530-1-III
State v. Bagby
4
[STATE]: . . . And the gentleman talking to the women in the stall
trying to get his girlfriend out, what was his nationality?
[WITNESS]: He was African American.
Report of Proceedings (RP) at 79.
[STATE]: . . . Now the record reflects she identified the defendant,
and then the gentleman that came up to talk to him, what was his
nationality?
[WITNESS]: He looked white.
RP at 80.
[STATE]: . . . Did you ever pay attention to his nationality or
anything else?
[WITNESS]: No.
[STATE]: Ethnicity, sorry.
[WITNESS]: He was black, I think.
RP at 94.
[STATE]: Okay. White, black, Latino?
[WITNESS]: White.
RP at 34.
[DEFENSE COUNSEL]: . . . Were they African American, or were
they white?
[WITNESS]: I believe they were African American.
RP at 71.
[DEFENSE COUNSEL]: Were there any other black people in the
bathroom?
[WITNESS]: I do not know that.

No. 36530-1-III
State v. Bagby
5
RP at 73.
[STATE]: . . . All right, so, then you see these, then did you see the
white guy talk with the black—with the defendant here?
[WITNESS]: Hmm hmmm. [Indicating yes.]
RP at 80.
[STATE]: . . . What was the demeanor like of the white guy at this
time?
[WITNESS]: He was pretty calm, very casual, was kind of like hey
bro, like you just need to leave. . . .
RP at 80-81.
[STATE]: . . . And the defendant punched the white guy that was
talking to him?
[WITNESS]: Yes.
RP at 81.
[DEFENSE COUNSEL]: . . . Do you recall, you said you indicated
that Mr. Bagby was there, okay, do you recall any other black guys in the
bathroom at that time?
[WITNESS]: At the time, no.
RP at 86.
[DEFENSE COUNSEL]: . . . He was the only black guy in the
bathroom?
[WITNESS]: That I remember, yeah.
RP at 88.
[STATE]: Did you recognize the ethnicity of that guy?
[WITNESS]: He was white.

No. 36530-1-III
State v. Bagby
6
RP at 95.
[STATE]: Is that the person that was talking to the African
American man?
[WITNESS]: Yes.
RP at 96.
[STATE]: And again, we’re talking, the white guy did not push
touch [or] hit the black guy he was talking to?
[WITNESS]: Yes.
RP at 97.
[STATE]: . . . What ethnicity was he?
[WITNESS]: White.
RP at 180.
Neither party objected to the other referring to nationality, race or ethnicity when
asking questions.
The State began its cross-examination of Mr. Bagby by focusing on his friendship
with Ms. Roberson. Mr. Bagby admitted that he and Ms. Roberson had been to each
other’s apartments. This led to a few questions about Mr. Bagby’s dog:
[THE STATE]: She’d watch your dog for you while you went to the
store?
[MR. BAGBY]: Yes.
[THE STATE]: How long have you had that dog?
[MR. BAGBY]: I got my dog in August of 2017, so that makes him
about a year and a half now, his birthday is June 11th.

No. 36530-1-III
State v. Bagby
7
[THE STATE]: So, he would have been a puppy when she knew
him?
[Mr. BAGBY]: Yes.
[THE STATE]: For six months?
[MR. BAGBY]: That’s [why] she watched him.
[THE STATE]: Okay. All right. Still have your dog?
MR. BAGBY: Yes, I do.
[THE STATE]: Love him?
[MR. BAGBY]: Of course.
[THE STATE]: Care about him deeply?
[MR. BAGBY]: Who has a dog for over a year and don’t care about
him? Yes, I do.
[THE STATE]: Unfortunately, some people [don’t]; but I’m glad to
hear you’re not one of them, so okay. . . .
RP at 261-62. Defense counsel did not object to these questions.
After both sides presented their cases, the trial court instructed the jury on the law.
The instructions included the standard voluntary intoxication instruction submitted earlier
by defense counsel.
The jury found Mr. Bagby guilty of all charges except malicious mischief.
The trial court imposed a standard range sentence. Mr. Bagby timely appealed.
ANALYSIS
PROSECUTORIAL MISCONDUCT
Mr. Bagby contends the prosecutor committed misconduct by use of racial
descriptions and stereotypes in his questioning. We disagree.

No. 36530-1-III
State v. Bagby
8
“Prosecutorial misconduct is grounds for reversal if ‘the prosecuting attorney’s
conduct was both improper and prejudicial.’” State v. Monday, 171 Wn.2d 667, 675, 257
P.3d 551 (2011) (quoting State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009)).
Generally, where a prosecutor’s conduct is unobjected to, a defendant waives the right to
argue prosecutorial misconduct unless the conduct was so flagrant and ill intentioned that
a curative instruction would not have alleviated the prejudice. Fisher, 165 Wn.2d at 747.
Here, Mr. Bagby did not object to the prosecutor’s questions that repeatedly referred to
his and Mr. Davis’s national origin, race, and ethnicity nor did Mr. Bagby object to the
prosecutor’s questions about his dog.
Mr. Bagby argues that his prosecutorial misconduct claims are not waived because
the prosecutor’s repetitive references reflect implicit bias that tainted his trial. We first
review the roles of a prosecutor and why convictions tainted by a prosecutor’s racist
arguments or stereotypes are so repugnant to our system of justice.
A prosecutor serves two important functions—enforcing the law by prosecuting
law breakers and representing the state in the search for justice. Monday, 171 Wn.2d at
676.
Defendants are among the people the prosecutor represents. The
prosecutor owes a duty to defendants to see that their rights to a
constitutionally fair trial are not violated. Thus, a prosecutor must function
within boundaries while zealously seeking justice. A prosecutor gravely

No. 36530-1-III
State v. Bagby
9
violates a defendant’s Washington State Constitution article I, section 22
right to an impartial jury when the prosecutor resorts to racist argument and
appeals to racial stereotypes or racial bias to achieve convictions.
Id. (citations omitted).
In Monday, the defendant was on trial for murder and assault. Id. at 669. At trial,
the defense called a number of witnesses, some of whom were Black. Id. at 676. During
closing, the prosecutor argued: “‘[T]he only thing that can explain to you the reasons why
witness after witness after witness is called to this stand and flat out denies what cannot
be denied on that video is the code. And the code is black folk don’t testify against black
folk.’” Id. at 674 (alteration in original). The jury returned guilty verdicts.
On appeal, the State conceded that the prosecutor’s remarks were misconduct but
argued the defendant waived his prosecutorial misconduct claim because he failed to
object. Id. at 677. The Supreme Court disagreed. It determined that the prosecutor’s
racist remarks violated the defendant’s constitutional right to an impartial jury and
reviewed the defendant’s prosecutorial misconduct claim by applying the constitutional
harmless error standard of review. Id. at 680. The court held: “[W]hen a prosecutor
flagrantly or apparently intentionally appeals to racial bias in a way that undermines the
defendant’s credibility or the presumption of innocence, we will vacate the conviction
unless it appears beyond a reasonable doubt that the misconduct did not affect the jury’s

No. 36530-1-III
State v. Bagby
10
verdict.” Id. The court determined that the prosecutor’s misconduct was not harmless
beyond a reasonable doubt and reversed the defendant’s convictions. Id. at 681.
Applying the rule in Monday, we first look to whether the prosecutor appealed to
racial bias. Mr. Bagby first claims the prosecutor appealed to racial bias by repeatedly
referring to race, ethnicity, skin color, and national origin when asking witnesses
questions. Here, both the prosecutor and defense counsel referred to race, ethnicity, and
skin color when questioning witnesses. This allowed the witnesses, who did not know
Mr. Bagby or Mr. Davis, to distinguish them when testifying.
At various other times, the prosecutor used the term “nationality.” This was a
misuse of the term, as both Mr. Bagby and Mr. Davis are American. After reviewing the
questions and their context, we find nothing to support an inference of racial bias in the
prosecutor’s misuse of the term.
Mr. Bagby also argues that the prosecutor appealed to racial stereotypes that Black
men mistreat animals. Arguably, the prosecutor’s questions to Mr. Bagby were an
awkward attempt to build rapport at the beginning of a cross-examination. The
prosecutor accepted Mr. Bagby’s answer that he loved his dog and complimented him.
We disagree with Mr. Bagby’s argument that these questions played into a racial
stereotype that Black men mistreat animals.

No. 36530-1-III
State v. Bagby
11
Here, the prosecutor’s questions do not reflect racism or stereotypes nor do they
reflect flagrant or ill-intentioned misconduct. Mr. Bagby’s prosecutorial misconduct
claims were thus waived by counsel’s failure to object and we do not review them.
VOLUNTARY INTOXICATION INSTRUCTION
Mr. Bagby contends the trial court erred by giving the jury the standard voluntary
intoxication instruction. He complains that the instruction is confusing and misled the
jury. We decline to review this claim of error.
The invited error doctrine “prohibits a party from setting up an error at trial and
then complaining of it on appeal.” State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762
(1984), overruled on other grounds by State v. Olson, 126 Wn.2d 315, 893 P.2d 629
(1995). This doctrine precludes a party who requested an instruction to later complain of
it on appeal. State v. Studd, 137 Wn.2d 533, 546-47, 973 P.2d 1049 (1999). Here, Mr.
Bagby requested the standard voluntary intoxication instruction and the trial court gave it.
He may not complain of it on appeal.

No. 36530-1-111
State v. Bagby
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
Pennell, C.J.
JI 	~ .....
~ ' 	\.._ .J,
Lawrence-Berrey, J.
Staab, J.
12