* State Of Washington, Respondent V. Nigel Sinclair Hogan, Appellant

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
NIGEL SINCLAIR HOGAN, SR,
Appellant.
No. 84796-1-I
DIVISION ONE
OPINION PUBLISHED IN PART
DÍAZ, J. — A jury convicted Nigel Sinclair Hogan, Sr., of murder in the
second 	degree. 	Hogan 	now 	argues 	the 	State 	violated 	GR 	37 	and 	other
constitutional rights when it struck a prospective juror, whom Hogan’s lawyer
thought was transgender and who had expressed generalized misgivings about
the criminal justice system. As we review in the unpublished portion of this opinion,
Hogan also claims that the trial court wrongly denied the admission of medical
evidence supporting his defense and that his charging document was deficient.
We affirm.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/2
2
I. 	BACKGROUND
Former friends, Hogan and Terence Jackson had a falling out in 2008
related to the failure to repay an informal loan between them. For years thereafter,
the 	animosity 	between 	the 	two 	men 	escalated 	and 	led 	to 	regular 	violent
interactions involving them, their relatives and friends.
On the evening of October 24, 2015, Terence’s younger brother Jerome
Jackson happened to walk by Hogan and his partner, Elenise Falo, who were
sitting in their car, and this chance interaction led to a physical fight between Hogan
and Jerome.1 Jerome then left.
Later that night, as Hogan and Falo remained in their car, they heard a car
pull up, and inside were Terence, Jerome, and three other men. 	Terence
confronted Hogan about the fight earlier that evening with Jerome. Hogan pulled
out a firearm and fired at least ten shots, killing Jerome and seriously wounding
Paul Carter, one of the men who arrived with Terence.
Hogan has maintained that he acted legally in self-defense, claiming that
Jerome was attacking Falo and that Carter lunged at him despite multiple warnings
to back up.
Following the incident, Falo went to the hospital for injuries she and Hogan
alleged resulted from Jerome’s attack.
Hogan was arrested not long after the incident. Three years later, the State
charged him with murder in the second degree for Jerome’s death and assault in
1 We refer to Terrance Jackson and Jerome Jackson by their first names as they
share a surname. No disrespect is intended.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/3
3
the first degree for Carter’s injuries.
Following trial in 2022, a jury convicted Hogan of felony murder in the
second degree predicated on assault in the second degree, with a firearm
enhancement, and manslaughter in the first degree. The jury was unable to agree
on a verdict on the assault charge. The court vacated the manslaughter conviction
as violating double jeopardy. It sentenced him to 222 months of confinement.
II. 	ANALYSIS
A. 	Peremptory Strike of Juror 40
1. 	Additional Factual Background
During jury selection, the State made a peremptory challenge to strike juror
40. 	Hogan’s counsel objected, stating the “defense would like to raise a GR 37
argument to that. 	This individual is one of the only trans persons on the jury. 	In
the entire panel.”
In response, the court noted that juror 40, who identified as being 20 years
old and Caucasian, had declined to identify their gender on the jury questionnaire.
Specifically, having the options “Female,” “Male,” “Non-binary,” and “Prefer not to
answer,” juror 40 had selected the last option. 	The court then asked for the
response of the State, and it answered:
I think counsel is making some assumptions. They are both based
on probably appearance and “prefer not to answer” that this person
is transgender. 	I don’t think you can possibly say that you know if
anyone else on this panel is or is not transgender. 	They might
identify their gender specifically. They might decline to identify. And
I don’t think you can just go on appearances alone.
Second of all, this juror was uncomfortable talking about their very
significant political views in the group. And when we spoke with them
privately, they struggled to sort of articulate their thoughts. 	They
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/4
4
seemed very uncomfortable. 	This did not seem like someone from
the State’s perspective that was going to be able to -- in a -- in a jury
room take a position and stand up for it and communicate with other
jurors.
They expressed 	significant 	concerns 	about the 	criminal 	justice
system, which, of course, lots of people did, but it was hard to really
get to the core of it. 	And so we do not think . . . that there is any
possibility that an objective person would believe that the State
struck this person based on an outside possibility that they were
transgender.
(Emphasis added).
The court then reviewed juror 40’s questionnaire again and noted it
remembered they had been individually questioned earlier. Without seeking input
from the defense, and without defense interjecting to make any further argument,
the court ruled:
All right. 	So the motion is denied. 	I don’t think there is a basis for
arguing 	that 	this 	person 	is 	being 	challenged 	because 	they’re
transgender. 	Primarily, they have not identified as transgender. 	It
was not apparent to me that they were transgender, it’s not on the
questionnaire that their [sic] transgender, and, um -- and in addition,
there is a basis for challenging them that is—that is not based on --
on their identity and that is their answers on the questionnaire which
indicated that they have strong beliefs about when police use
excessive use of force on arrestees, the protesters and historically
onto represented [sic] groups.
And also, they were very reticent when answering questions during
voir dire. 	They -- they seemed to have a very difficult time, uh,
responding to questions. And so, um, the motion is denied and Juror
40 is struck.
(Emphasis added). 	Hogan offered no further clarification or made any further
record of his objection to the strike, and jury selection resumed.
2. 	Discussion
a. 	Alleged GR 37 Violation
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/5
5
Hogan argues that the trial court erred when it overruled the GR 37
objection of his defense counsel. Specifically, he argues the court misapplied GR
37 by permitting the removal of a juror who was critical of the criminal justice
system and its “treatment of historically underrepresented groups.”
We find his arguments unavailing for two overarching reasons. 	First,
Hogan’s trial counsel expressly asserted nothing more than a facially improper
basis (gender identity) for his GR 37 objection. 	Second, even if Hogan had
explained to the trial court how that improper basis was related to a proper basis
(race and ethnicity), he has not shown that juror 40 was in fact transgender or that
that their gender identity implicated their views on race or ethnicity so as to
establish that the State sought, implicitly or explicitly, to strike the juror for improper
reasons.
i. 	Providing a Facially Invalid Basis for a GR 37 Objection
The “purpose of [GR 37] is to eliminate the unfair exclusion of potential
jurors based on race or ethnicity.” GR 37(a) (emphasis added); State v. Jefferson,
192 Wn.2d 225, 249, 429 P.3d 467 (2018)) (“The evil of racial discrimination is still
the evil this rule seeks to eradicate.”). Procedurally, the rule specifies that a “party
may object to the use of a peremptory challenge to raise [an] issue” for “further
discussion . . . outside the presence of the panel,” before a potential juror is
excused, “by simple citation to this rule.” GR 37(c).
“The court will apply canons of statutory interpretation when construing a
court rule.” 	State v. Robinson, 153 Wn.2d 689, 692, 107 P.3d 90 (2005). 	“We
review construction of a court rule de novo because it is a question of law.” Id. at
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/6
6
693. 	“While the plain language of a court rule controls where it is unambiguous,
under our court rule interpretation guidelines we must examine [such rules] in
context with the entire rule in which it is contained as well as all related rules.” Id.
Here, when the State moved to strike juror 40, Hogan’s counsel objected
and cited to the rule, which initiated the “further discussion . . . outside the presence
of the panel.” GR 37(c). Hogan’s counsel then immediately stated sua sponte—
as the sole basis of the objection—that “[t]his individual is one of the only trans
persons on the jury. 	In the entire panel.” The entirety of the “further discussion”
between parties and the court that followed made no mention of race or ethnicity,
whether as the “basis” of the purported “unfair exclusion” of juror 40 or otherwise.
GR 37(a). 	Indeed, Hogan’s counsel made no further argument of any kind,
including no explanation about how juror 40’s purported gender identity is related
to any issue touching on race or ethnicity. 	The only and explicit basis of the
objection was juror 40’s purported gender identity as transgender.2
We hold that, by affirmatively asserting a facially improper basis for a GR
2 	Nothing inherent in the definition or cultural understanding of “transgender”
incorporates race. 	Merriam-Webster defines “transgender” as “of, relating to, or
being a person whose gender identity differs from the sex the person was identified
as having at birth”—“especially: of, relating to, or being a person whose gender
identity is opposite the sex the person was identified as having at birth[.]” MERRIAM-
W EBSTER O NLINE DICTIONARY (last visited Sep. 09, 2024), https://www.merriam-
webster.com/dictionary/transgender; see also B LACK ’S L AW DICTIONARY 1810 (12th
ed. 2024) (defining “transgender” to concern a person “whose physical sex at birth
differs from the sex with which the person later identifies.”); see also Transgender
and Non-Binary People FAQ, HUM. RTS . CAMPAIGN (Apr. 26, 2024) (defining
“transgender, or trans” as “an umbrella term for people whose gender identity is
different 	from 	the 	sex 	assigned 	to 	them 	at 	birth”),
https://www.hrc.org/resources/transgender-and-non-binary-faq
[https://perma.cc/G9FY-VX2C]
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/7
7
37 objection, i.e., one bereft of any declared relationship to race or ethnicity, a GR
37 objection is not properly raised and is properly denied.
This court’s decision in State v. Brown, 21 Wn. App. 2d 541, 506 P.3d 1258
(2022), is instructive here. There, the State used “six of its seven peremptories to
remove female jurors,” to which defense counsel objected. 	Id. at 549. 	The
preliminary issue the parties presented was “which test to apply”: GR 37 or the
three-step test announced in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,
90 	L. 	Ed. 	2d 	69 	(1986), 	which 	“was 	developed 	to 	determine whether 	the
peremptory strike of a venireperson was impermissibly motivated by race.” Id. at
549 & 551. This court accepted Brown’s concession “that GR 37 does not apply
to 	an 	objection 	based 	on 	gender 	discrimination” 	and 	addressed 	Brown’s
“assert[ion] that the trial court should have applied the modified Batson test as
declared in Jefferson”—which incorporated “GR 37’s structure” into the third step
of the Batson test”—to claims of gender discrimination. 	Id. at 549-50 & 553
(emphasis added).
We held that “Jefferson’s test was explicitly limited to race and ethnicity.”
Id. at 554. 	We observed that, although “gender . . . was a consideration in the
drafting and adoption of GR 37,” simply put, “GR 37 does not apply to gender or
any other protected status covered by the equal protection clause and our state
constitution.” Id. (emphasis added). We explained that “GR 37 and the holding in
Jefferson are based on a demonstrated history of Batson’s inability to move the
needle on racial and ethnic bias in jury selection.” Id. We further concluded, “Ms.
Brown fails to demonstrate that racial and gender bias are so similar that they are
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/8
8
merely interchangeable. 	If such were the case, gender would likely have been
included in GR 37’s inaugural version.” Id. (emphasis added).
For the first time on appeal, Hogan attempts to conflate gender and racial
and ethnic biases, arguing that “[j]uror 40 . . . had a heightened understanding of
[the] reality” that, “[l]ike people of color, people who do not conform to traditional
sex or gender norms have suffered disparately in society and our justice systems.”
This argument—tying juror 40’s purported gender identity to their possible views
on racial and ethnic justice issues—however, was simply not before the trial court.
And this argument is essentially making the same claim we rejected in Brown;
namely, that race and gender or gender identity are “interchangeable” in some
way. 21 Wn. App. 2d at 554.
Even if we chose to look beyond the words of Hogan’s counsel’s objection
and consider the full exchange between the juror, the parties and the court—both
in group and individual questioning, including about juror 40’s “concerns about the
criminal justice system”—race or ethnicity is never mentioned. 	In the entirety of
the dialogue, there is no reference to race or ethnicity, or any indication that race
or ethnicity is related to the basis on which Hogan brought the objection.
In response, also for the first time on appeal, Hogan next reaches farther
back 	in 	jury 	selection, 	to 	juror 	40’s 	questionnaire 	where 	they 	“expressed
awareness of racial justice issues,” to argue that “an objective observer could
conclude that race was a factor in the prosecution’s strike.” 	Hogan first points to
juror 40’s assertion that they have a “strong opinion” about the criminal justice
system. However, those answers contained no mention of race or ethnic identity
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/9
9
either; 	instead 	they 	broadly 	reference 	challenges 	that 	“historically
underrepresented” or “poor [people]” have with the justice system generically.
The only mention of race or ethnicity was in a separate portion of the
questionnaire where juror 40 agreed that “[w]e sometimes make judgments and
have 	preconceptions 	about 	other 	people 	based 	on 	their 	race 	or 	ethnic
background.” They explained such biases can develop because “racial biases are
deeply rooted in our country and its history” and they noted biases can manifest in
a person’s beliefs and actions.3
These statements pertain to issues of race or ethnicity, but only at the
highest level of generality. 	Regardless, Hogan neither presented the court with
any of juror 40’s answers to the questionnaire as the basis for objecting to the
State’s strike, nor tied them in any way to racial and ethnic discrimination, even as
the court expressly stated that the “basis for challenging [juror 40] . . . is not based
on . . . their answers on the questionnaire.”
Finally, Hogan offers the conclusory argument that, because he literally
cited to the rule number, his claim that the State violated GR 37 was properly raised
and is “preserved for review.” 	It is certainly true, on a plain language reading of
that provision of the rule, that one can “make” an objection “to raise the issue of
improper bias” for “further discussion” by simply citing the rule. GR 37(c). But, the
sole, express purpose of the rule as stated in GR37(a) “is to eliminate the unfair
3 During group questioning, the State also asked for juror 40 to explain their
understanding of unconscious bias, and they answered that “implicit bias can affect
how decisions are made, especially in court.” 	None of the venirepersons
disagreed with this anodyne statement.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/10
10
exclusion of potential jurors based on race or ethnicity.” 	(Emphasis added.) 	In
other words, even though GR 37(c)’s phrasing—“the issue of improper bias”—is
stated in inchoate terms, the plain language of the “entire rule” makes clear that its
sole target is improper bias based on race or ethnicity. 	Robinson, 153 Wn.2d at
693.
During oral argument, Hogan conceded “[c]ounsel’s objection certainly
could have been better and arguably deficient.” 	Wash. Ct. of Appeals oral
argument, State of Washington v. Nigel Sinclair Hogan, Sr., No. 84796-1-I
(September 13, 2024), at 4 min., 20 sec. through 4 min., 25 sec. video recording
by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-
1-court-of-appeals-2024091210/?eventID=2024091210. 	That 	concession
understates the gravity of adopting Hogan’s argument.
If we were to be persuaded by his conclusory argument, we would
effectively deem any objection that simply cites to GR 37 as creating a basis upon
which to lodge a proper appeal. Taken to its logical conclusion, Hogan would ask
this court to consider claims of possible race discrimination even if an objecting
party offered nonsense reasons for the objection; e.g., if counsel lodged a GR 37
objection and explained the State was discriminating against short jurors or
explained that counsel always objected on a given day of the week. We refuse to
countenance such an interpretation or its results. State v. Elgin, 118 Wn.2d 551,
555, 825 P.2d 314 (1992) (“We avoid a literal reading of a statute if it would result
in unlikely, absurd, or strained consequences. The spirit or purpose of an
enactment should prevail over the express but inept wording.”) (citation omitted).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/11
11
Moreover, reviewing the rule as a whole, its structure makes clear that
uttering the name of the rule simply serves as a tool to interrupt ongoing jury
selection in order to engage in “further discussion” to address possible racial or
ethnic discrimination. But here, Hogan misdirected the court for purposes of that
further discussion, by volunteering solely a facially invalid basis for its GR 37
objection, i.e., juror 40’s gender identity, and by staying silent as the court
considered the juror’s gender identity. Where Hogan simply did not argue that the
State was striking juror 40 for racial or ethnic reasons or explain how their gender
identity was related thereto, he left the court no chance to consider his newfound
argument, on appeal, that objecting that juror 40 was transgender actually
encompassed a claim of racial or ethnic bias.4
In this sense, our opinion is a narrow one. We need not and do not reach
further hypotheticals about what, if anything, must affirmatively be said by an
objecting party to require further discussion under GR37 or preserve the issue of
possible racial or ethnic bias. We conclude only that a litigant may not volunteer
solely an improper basis for a GR 37 objection as it cites the rule, and then rely on
that objection to trigger our review.5
4 On reply, Hogan also conflates the idea of whether an objection was properly
asserted with how to review the issue, assuming it was properly asserted. At oral
argument, his counsel confirmed this conflation when stating “the rule is that we
have de novo review of GR 37 objections, like, GR 37—it still requires an analysis
of the rule.” Wash. Ct. of Appeals oral argument, supra at 4 min., 31 sec. through
4 min., 41 sec. (emphasis added). This is putting the proverbial cart (how to review
an issue) before the horse (whether to review an issue (properly asserted)).
5 This holding is also consistent with a long-held principle of judicial economy.
Namely, our Supreme Court has long held that “an ‘appellate court may refuse to
review any claim of error which was not raised in the trial court,’” based on the
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/12
12
ii. 	Insufficient Factual Predicate for Appellate Claim as to Race
Even if this court were to assume arguendo that Hogan properly made a
GR 37 objection simply by naming the rule, there was no GR 37 violation here.
First, as the court found, there was no showing that juror 40 was actually
transgender and, second, no indication that juror 40’s gender identity affected their
views on race or ethnicity, for which the State then allegedly excluded them.
Our Supreme Court has observed that when reviewing GR 37 claims, “most
courts have effectively applied de novo review because the appellate court
‘stand[s] in the same position as does the trial court’ in determining whether an
objective observer could conclude that race was a factor in the peremptory strike.”
State v. Tesfasilasye, 200 Wn.2d 345, 355-56, 518 P.3d 193 (2022) (quoting
Jefferson, 192 Wn.2d at 250). The court “agree[d][,] in [Tesfasilasye’s] case,” that
this standard was appropriate since “there were no actual findings of fact and none
of the trial court’s determinations apparently depended on an assessment of
credibility.” Id. at 356. However, the court left open for “further refinement” what
“the standard of review” should be “for a case that squarely presents the question
based on a well-developed record.” Id.
policy “to ‘encourage the efficient use of judicial resources.’” State v. O’Hara, 167
Wn. 2d 91, 97-98, 217 P.3d 756, (2009) (quoting RAP 2.5(a)). It further explained
that “‘appellate courts will not sanction a party’s failure to point out at trial an error
which the trial court, if given the opportunity, might have been able to correct to
avoid an appeal and a consequent new trial.’” Id. at 98 (quoting State v. Scott, 110
Wn.2d 682, 685, 757 P.2d 492 (1988)); see also State v. Walker, 182 Wn.2d 463,
477, 341 P.3d 976 (2015) (“[p]roper and timely objections provide the trial court an
opportunity to correct” error). In conducting the analysis of exceptions to this rule,
“the appellate court must place itself in the shoes of the trial court to ascertain
whether, given what the trial court knew at that time, the court could have corrected
the error.” O’Hara,167 Wn.2d at 100. We hold the court could not.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/13
13
This case is one such candidate for further refinement because the trial
court’s decision did involve factfinding. 	The court reviewed juror 40’s election of
the choice “prefer not to answer” on the questionnaire. It then stated in pertinent
part, “[i]t was not apparent to me that they were transgender,” and “they have not
identified as transgender,” adding “it’s not on the questionnaire that their [sic]
transgender.” 	The court concluded that neither the questionnaire response nor
defense counsel’s opinion about their appearance duly supported the conclusion
they were transgender. In turn, the court held that there was no “basis for arguing
that this person is being challenged because they’re transgender.”
At our Supreme Court’s suggestion, we defer to the court’s findings of fact.
Tesfasilasye, 200 Wn.2d at 356. 	To do otherwise would be to read into a non-
answer (declining to select any gender identity) facts not in evidence or, without
any basis, to credit defense counsel’s perceptions over the court’s. 	The non-
answer on the questionnaire shows only that juror 40 opted not to disclose their
gender identity to the court. There was no actual indication anywhere in the record
that, as Hogan contends on appeal, juror 40 presented in a “feminine” way, despite
having a name typically associated with a male gender identity. State v. Bunner,
86 Wn. App. 158, 161, 936 P.2d 419 (1997) (“This court may generally affirm the
lower court on any basis supported by the record.”). 	Moreover, the trial judge
considered the totality of the evidence before it and personally observed juror 40
during voir dire. It is, therefore, appropriate to accept the court’s comment that “it
was not apparent” that juror 40 was transgender. 	It was particularly appropriate
for the court to decline to use its governmental authority to assign a gender identity
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/14
14
to a juror who chose not to disclose it, and where gender had no apparent
relevance to the case.
In turn, Hogan’s primary argument—that juror 40 displayed, because of their
gender identity, a “heightened understanding” to the plight of racial and ethnic
minorities—also fails because this factual predicate is unfounded.
Apparently sensing the import of the court’s finding that juror 40 did not
appear to be transgender, Hogan argues in reply that “[w]hether juror 40 was trans
or not, the point is that juror 40 was gender non-conforming—unlike all the other
potential jurors, and striking juror 40 implicated the juror’s sex.” 	But there is
similarly no evidence, and Hogan cites to none in the record, that juror 40 was
“gender non-conforming,” or was the sole such person in the venire.6 Thus, that
argument is equally unavailing.
Even assuming juror 40 was transgender, Hogan points to nothing in the
record that ties their gender identity to their views on racial or ethnic bias that
allegedly served as a factor in the State’s strike. In other words, Hogan identifies
no actual connection between juror 40’s gender identity and their view on racial or
ethnic bias to even allow the possibility that the State inexcusably relied on such a
nexus. Juror 40 neither stated nor implied a connection between their identity and
views on race that could have then factored into the State’s strike, such as
disclosing, for example, that as a transgender or gender-nonconforming person,
6 Merriam-Webster defines “gender nonconforming” as “exhibiting behavioral,
cultural, or psychological traits that do not correspond with the traits typically
associated with one’s sex: having a gender expression that does not conform to
gender norms.” MERRIAM-W EBSTER O NLINE DICTIONARY (last visited Sep. 09, 2024),
https://www.merriam-webster.com/dictionary/gender%20nonconforming.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/15
15
they were more likely to be reluctant to convict a black defendant. The idea that
juror 40’s gender nonconformity inherently meant they held heightened sympathy
toward to Hogan, as a racial minority, and that this tendency was a factor in the
State’s choice to strike them, only appears in Hogan’s appellate brief. It is based,
not on evidence in the record, but on the observation of Hogan’s appellate counsel
that there is some similarity in the kind of 	oppression both have suffered
historically. Without more particularized facts, we cannot reward such speculation
with a remedy under GR 37.
In summary, even if Hogan properly raised GR 37 objection by simply
naming the rule, there is not a sufficient showing that juror 40 was actually
transgender or that, because of their gender identity, they held sympathetic racial
or ethnically beliefs which caused the State to use their peremptory against them.7
b. 	Alleged Constitutional Violation
Distinctly, though somewhat entangled with his GR 37 claim, Hogan argues
that the prosecution’s strike unconstitutionally removed juror 40 based on their sex
or gender, under Batson. We disagree.
7 Hogan submitted a Statements of Additional Authorities (SAA) offering additional
caselaw supporting his argument that his counsel properly raised the issue of
alleged race based discrimination to the trial court by naming GR 37 and the State
filed a motion to strike the SAA. However, this court has explained that the RAP
(10.8) addressing SAAs was “intended to provide parties an opportunity to cite
authority decided after the completion of briefing. 	We do not view it as being
intended to permit parties to submit to the court cases that they failed to timely
identify when preparing their briefs.” O’Neill v. City of Shoreline, 183 Wn. App. 15,
23, 332 P.3d 1099 (2014) (emphasis added). 	As none of the authority Hogan
offers was decided after the completion of the briefing, we need not and do not
consider them. Thus, the motion to strike is granted.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/16
16
Critical to his argument is the proposition that recent modification to
Batson’s traditional analysis for claims of racial discrimination applies “with equal
force” to gender discrimination challenges. In making his argument that the State’s
strike unconstitutionally relied on juror 40’s sex or gender, Hogan expressly relies
on GR 37’s objective observer standard in lieu of the typical analysis for evaluating
constitutional violations in jury selection. But, as Hogan concedes, no Washington
court has ever applied the GR 37 standard to a claim of discrimination in jury
selection with regard to sex or gender.8 We decline to be the first and, as such,
apply the analysis laid out in Batson to claims of gender-based discrimination in
the use of a peremptory challenge. 	State v. Burch, 65 Wn. App. 828, 839, 830
P.2d 357 (1992) (stating “that the principles enunciated in Batson apply to gender-
based discrimination[.]”). 	We hold that the court properly rejected his claim that
striking juror 40 was unconstitutional gender discrimination under Batson.
Courts must engage in a three-step analysis as outlined in Batson when
considering claims of gender-based discrimination in the use of peremptory
challenges. First, the party challenging the strike must make a “prima facie case
of purposeful discrimination by showing that the totality of the relevant facts gives
rise to an inference of discriminatory purpose.” 	Batson, 476 U.S. at 93-94. 	The
parties apparently concede that Hogan’s Batson claim does not fail at step 1
8 Hogan argues that it is “not an excuse” that no Washington Court has applied GR
37’s objective observer standard to Batson gender claims, because that is “what
Washington’s Constitution demands.” In support, he briefly refers to Washington’s
Equal Rights Amendment, but does not elaborate further on state constitutional
obligations. W ASH. CONST. art. XXXI § 1 (amend. 61). This court need not consider
this claim. State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990) (“This court will
not consider claims insufficiently argued by the parties.”).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/17
17
because the State essentially skipped this step by immediately arguing a gender-
neutral reason for the strike.9
At the second step, the striking party takes on the burden of disproving
discrimination, as it is required to provide a justification for the strike that is neutral
from the protected status at issue. 	City of Seattle v. 	Erickson, 188 Wn.2d 721,
726-27, 398 P.3d 1124 (2017). 	Here, as reviewed above, the State provided a
non-gendered 	reason for 	striking 	juror 	40, 	namely 	their 	inability 	to 	answer
questions clearly. Hogan concedes the burden then shifted back to him once the
State provided the court with “facially non-gender-identity reasons.”
As the third step, the court must weigh all the relevant circumstances to
decide if the proffered reasons are actually pretextual and give rise to an inference
of discriminatory intent. 	Batson, 476 U.S. at 97-98; Flowers v. Mississippi, 588
U.S. 284, 302, 139 S. Ct. 2228, 204 L. Ed. 2d 638 (2019). “This final step involves
evaluating ‘the persuasiveness of the justification’ proffered by the prosecutor, but
‘the ultimate burden of persuasion regarding [prohibited, discriminatory] motivation
rests with, and never shifts from, the opponent of the strike.’” Rice v. Collins, 546
9 However, should we consider Step 1 in further detail, there was not a sufficient
indication that the totality of the facts gave rise to an inference of discriminatory
purpose. The burden of proof was on the defense at this stage. State v. Orozco,
19 Wn. App. 2d 367, 373, 496 P.3d 1215 (2021). And although appellant claims
the strike “smack[ed] of gender discrimination against a feminine presenting
person,” 	and 	cites 	to 	studies 	about 	LGBTQ 	people’s 	disproportionate
representation in the legal system, there is no evidence in the record, let alone any
evidence offered by defense below, that there was any reason for the State to
strike someone “feminine presenting.” And otherwise, there was no indication that
gender identity had anything to do with Hogan’s case. 	Thus, with nothing in the
record to suggest that gender as a protected class was relevant, Hogan’s Batson
claim might fail even at the first step. But, because the parties omit argument on
this point, we proceed.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/18
18
U.S. 333, 338, 126 S. Ct. 969, 163 L. Ed. 2d 824 (2006) (quoting Purkett v. Elem,
514 U.S. 765, 767-68, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995) (per curiam)).
This court affords “a high level of deference to the trial court’s determination of
discrimination” at this juncture, and the trial court’s decision will only be reversed
if the appellant can show it was clearly erroneous. State v. Hicks, 163 Wn.2d 477,
493, 181 P.3d 831 (2008); Erickson, 188 Wn.2d at 727.
The U.S. Supreme Court has explained such deference is appropriate
because:
The trial judge’s assessment of the prosecutor’s credibility is often
important. . . . [T]he best evidence of discriminatory intent often will
be the demeanor of the attorney who exercises the challenge. 	We
have 	recognized 	that 	these 	determinations 	of 	credibility 	and
demeanor lie peculiarly within a trial judge’s province. The trial judge
must determine whether the prosecutor’s proffered reasons are the
actual reasons, or whether the proffered reasons are pretextual and
the prosecutor instead exercised peremptory strikes on the basis of
[the prohibited classification]. The ultimate inquiry is whether the
State was motivated in substantial part by discriminatory intent.
Flowers v. Mississippi, 588 U.S. at 302-03 (citations omitted) (internal quotation
marks omitted).
As already noted, Hogan acknowledges that our Supreme Court has
incorporated the objective observer standard into the Batson test only for race
related claims. 	In fact, Hogan concedes that for both the second and third steps
of the test, “the analysis and outcome hinge on whether [the] modified approach
to Batson applies to gender or sex, and not just race.” 	As such, it is clear,
regardless of whether Hogan’s claim would succeed under an objective observer
standard, it fails without it.
But, to complete our analysis, the court flatly found at least three reasons
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/19
19
unrelated to juror 40’s gender that explained the State’s strike: (a) they did not
appear to be transgender; (b) their answers on the questionnaire indicated strong
beliefs about “when police use excessive use of force on arrestees, the protesters
and historically onto represented [sic] groups”; and (c) “they were very reticent
when answering questions during voir dire” or “seemed to have a very difficult time
. . . responding to questions.” Affording the court a “high level of deference,” Hogan
has not shown any of these decisions are “clearly erroneous.” Hicks, 163 Wn.2d
at 493-94. Thus, this assignment of error fails.
A majority of the panel having determined that only the foregoing portion of
this opinion will be printed in the Washington Appellate Reports and that the
remainder shall be filed for public record pursuant to RCW 2.06.040, it is so
ordered.
B. 	Exclusion of Medical Records
1. 	Additional Factual Background
Hogan’s principle defense at trial was that he acted in self-defense in killing
Jerome, as well as in the defense of his girlfriend and mother of his children,
Elenise Falo. 	Falo testified at trial that Jerome had attacked her before Hogan
shot him, hitting her repeatedly while she was inside Hogan’s car. 	As a
consequence, Falo testified, she experienced shoulder, neck, and head pain for
which she sought medical treatment at a hospital.
Over the course of her trial, both parties presented their case with liberal
use and reference to the medical records documenting Falo’s hospital visit;
namely, information about the injuries she reported, what tests were conducted,
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/20
20
any diagnoses she received, and what medication she was prescribed.
Following her examination, Hogan moved to admit her medical records and
the State objected. The State had not contested that they were admissible under
the business records exception to the hearsay rule and Hogan had a custodian to
testify to their authenticity, but the State objected on the grounds that the records
would confuse the jury, invite speculation, and unduly highlight matters not at
issue. 	Hogan argued they were not confusing because their contents were “well
within a layperson’s understanding of what happens when one goes to the
hospital.”
In his discussion of why the court should admit the records, Hogan stated
that the records were “pretty much what the witness testified to” and further argued:
There aren’t particularly difficult terms used, and in case the jury
would like to refer back to it--because we did so much jumping
around with pages, that this could actually be useful to them to see
how it all fits together. And I’d ask under the rules of evidence that
all the foundation has been laid and this is merely like completing
that record.
The court sustained the State’s objection under ER 403. It concluded that
the records would be confusing to the jury without testimony from a medical
provider. In making its ruling, the court expressly noted that both sides had been
permitted to elicit testimony about the records.
2. 	Discussion
Arguing the exclusion was error, Hogan asserts that the record was “plainly
relevant. It documented Ms. Falo’s injuries and corroborated her testimony. This
in turn tended to show that Jerome attacked Ms. Falo and Mr. Hogan acted in
defense of Ms. Falo.” He avers that by excluding this relevant evidence, the court
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/21
21
both abused its discretion under the rules of evidence and violated Hogan’s
constitutional right to present the evidence in support of his defense. 	We hold it
did neither.
When a trial court’s evidentiary ruling is challenged and a defendant claims
a violation of his Sixth Amendment right [under the United States Constitution] to
present a defense, we apply a two-part test. 	State v. 	Jennings, 199 Wn.2d 53,
58, 502 P.3d 1255 (2022) (citing State v. Arndt, 194 Wn.2d 784, 797-98, 453 P.3d
696 (2019)). First, we analyze the lower court’s ruling for an abuse of discretion,
applying the evidentiary rule or evidentiary statute at issue. 	Id. at 58-59. Second,
if we find no abuse of discretion, we then consider de novo whether the ruling
violated the defendant’s Sixth Amendment right to present a defense. 	Id.
Hogan’s claim implicates several evidence rules, for purposes of analysis
at the first step. First, for evidence to be admitted at trial, it must be relevant. ER
402. 	And evidence is relevant if it tends to prove or disprove the existence of a
fact of consequence to the outcome of the case. State v. Weaville, 162 Wn. App.
801, 818, 256 P.3d 426 (2011). But also, even evidence that is relevant “may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” ER
403.
We review a trial court’s ER 403 ruling for abuse of discretion. State v. Caril,
23 Wn. App. 2d 416, 427, 515 P.3d 1036 (2022). A trial court abuses its discretion
if no reasonable person would take the view it adopted. 	State v. Atsbeha, 142
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/22
22
Wn.2d 904, 913-14, 16 P.3d 626 (2001). Stated differently, it abuses its discretion
if “its decision is manifestly unreasonable or exercised on untenable grounds or for
untenable reasons.” State v. Lord, 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007).
A decision that is contrary to law or based on an incorrect application of an
evidentiary rule is also an abuse of discretion. State v. Neal, 144 Wn.2d 600, 609,
30 P.3d 1255 (2001).
Here, assuming Falo’s medical records were relevant, and even accepting
Hogan’s position that they would not have confused the jury, it was not an abuse
of discretion for the trial court to choose to exclude them because both parties
already “had an opportunity to really ask what each side believes is the relevant
portion of those records, and so that information, at least, is before the jury in
testimony.” In other words, the trial court did not abuse its discretion in reasoning
that they would have been a “needless presentation of cumulative evidence.” ER
403. Indeed, Hogan’s counsel herself acknowledged that the medical records are
“pretty much what the witness testified to, that she made complaints, that she did
X-rays, what parts of her body they x-rayed.” 	Having heard this concession, the
court’s exercise of discretion was based on tenable reasons. 	Hogan has not
shown that no reasonable person would have weighed the repetitiveness of the
evidence the same way that court did pursuant to ER 403. 	Atsbeha, 142 Wn.2d
at 913-14.
Similarly, moving to the second step in reviewing Hogan’s evidentiary claim,
we note that while the right to present a defense to a criminal charge is
constitutionally guaranteed, it is not “without limitation.” 	State v. Orn, 197 Wn.2d
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/23
23
343, 352, 482 P.3d 913 (2021) (citing State v. Darden, 145 Wn.2d 612, 621, 41
P.3d 576 (2010)). Specifically, our Supreme Court has held that “the Constitution
permits judges to exclude evidence that is repetitive.” Id. (quoting Holmes v. South
Carolina, 547 U.S. 319, 326-27, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006)).
Moreover, our Supreme Court has held that there is an important and “clear
distinction” between “merely bolstering” a defense and “evidence that is necessary
to present a defense.” 	Jennings, 199 Wn.2d at 66-67. 	That distinction is
dispositive here.
While it may have been helpful for Hogan’s defense case to admit the
records because, as he asserts, the records would have “significantly buttressed
the account the jury ultimately rejected,” this very argument demonstrates that
Hogan simply sought to admit the records in order to bolster Falo’s credibility by
repeating the account relayed in her testimony.
The 	relevance 	of 	the 	excluded 	evidence 	at 	stake 	here 	is, 	thus,
fundamentally different from the evidence that a defendant was denied the ability
to admit in State v. Broussard, a case in which this court held the defendant’s right
to present a defense was violated. 25 Wn. App. 2d 781, 792, 525 P.3d 615 (2023).
There, the trial court did not allow any testimony from a witness that would have
provided the jury with an alternative defense theory of the case. 	Id. at 788-89.
Hogan’s claim is clearly distinguishable.
Here, the evidence excluded did not prevent the jury from being presented
with Hogan’s defense theory. The exclusion of the records did not prevent the jury
from hearing Falo’s account, nor did it prevent the jury from finding Falo’s
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/24
24
testimony about the source of her injuries to be credible, given that several other
witnesses’ testimony corroborated her claims. 	For example, Hogan does not
argue that the State contested Falo went to the hospital seeking treatment.10 Had
the State done so, the medical record itself might have been necessary to address
the verity of that fact, central to his theory. But here, the only purpose the records
served was for the information within them to reiterate the specifics Falo already
testified to.
This court has emphasized that “phrasing an evidentiary ruling as a
constitutional claim [does not] provide[] a means for an end run around the Rules
of Evidence. 	Nor is the second step analysis merely a repetition of the analysis
undertaken at step one.” State v. Ritchie, 24 Wn. App. 2d 618, 628-29, 520 P.3d
1105 (2022) (citation omitted). 	Moreover, this court has characterized Rule 403
as one of those “well-established, commonly utilized rule[s] that ha[ve] been
applied time and again without any demonstrated detriment to the fairness of
proceedings.” Id. at 634-35.
The court excluded, under this commonly utilized rule, this evidence which
Hogan chiefly offered to strengthen the theory already in play and to bolster Falo’s
credibility. 	Consequently, we conclude that there was no abuse of discretion at
the evidentiary level, nor a violation of Hogan’s constitutional rights.
10 At oral argument, Hogan ultimately agreed that there was no “suggestion,
argument, innuendo, that the witness who was testifying as to going to the hospital
didn’t actually go to the hospital, didn’t actually get treated[.]” Wash. Ct. of Appeals
oral argument, supra at 21 min., 45 sec. through 22 min., 35 sec. In other words,
Hogan acknowledged the State never disputed that fact, but rather, had implied
Falo went to the hospital “to make a record” “for false reasons.” Id.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/25
25
C. 	Sufficiency of the Charging Document
The information charged Hogan, in count 1, with murder in the second degree,
stating:
That the defendant NIGEL SINCLAIR HOGAN SR in King County,
Washington, on or about October 24, 2015, while committing and
attempting to commit the crime of Assault in the Second Degree, and
in the course of and in furtherance of said crime and in the immediate
flight therefrom, and with intent to cause the death of another person,
did cause the death of Jerome Jackson, a human being, who was
not a participant in said crime, and who died on or about October 24,
2015;
Contrary to RCW 9A.32.050(1)(a), (b), and against the peace and
dignity of the State of Washington.
And further do allege the defendant, Nigel Sinclair Hogan SR at said
time of being armed with a .40 caliber handgun, a firearm as defined
in RCW 9.41.010, under the authority of RCW 9.94A.533(3).
Hogan argues this charge was constitutionally deficient because it omitted
an essential element of the crime and, thus, violated his constitutional right of
proper notice. Specifically, he claims the charge failed to specify the means of that
alleged assault.
It has been long held, however, that, although a predicate offense is an
element of a felony murder charge, an information need not include the elements
of the predicate offense itself. State v. Kosewicz, 174 Wn.2d 683, 692, 278 P.3d
184 (2012); State v. Fillpot, 51 Wn. 223, 228, 98 P. 659 (1908). 	Because a
defendant is not actually charged with the predicate crime, its elements are not
deemed essential elements. Kosewicz, 174 Wn.2d at 691-92. Even recently, our
Supreme Court has rejected the conflation of what must be proven at trial to convict
someone of a crime with the requirements of a charging document. 	State v.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84796-1-I/26
26
Canela, 199 Wn.2d 321, 335-36, 505 P.3d 1166 (2022).
In response, Hogan argues this long held precedent is wrongly decided and
asks us instead to rely on nonbinding case law, namely Kreck v. Spalding, 721
F.2d 1229, 1233 (9th Cir. 1983). As we must, this court follows binding case law.
We conclude the charging document was not constitutionally deficient and reach
no further issues as to this assignment of error.
D. 	Fees
Hogan also seeks to strike the DNA and Victim Penalty Assessment (VPA)
fees from his sentence, which relief the State rightly does not oppose. See RCW
7.68.035(4); RCW 43.43.7541; L AWS OF 2023, ch. 449, §§ 1, 4; State v. Ellis, 27
Wn. App. 3d 1, 16-17, 530 P.3d 1048 (2023). Accepting the State’s concession,
we remand this matter to the trial court to strike both the VPA and DNA fees.
III. 	CONCLUSION
We affirm, with the exception that we remand the matter for the trial court
strike the VPA and DNA fees.
WE CONCUR:
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.