[Cite as State v. Lewis, 2017-Ohio-7480.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104765



                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.


                                       JAMALL LEWIS
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-602693-A

        BEFORE:          Blackmon, P.J., Laster Mays, J., and Jones, J.

        RELEASED AND JOURNALIZED:                     September 7, 2017
ATTORNEY FOR APPELLANT

Russell S. Bensing
600 IMG Building
1360 East Ninth Street
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Daniel A. Cleary
Brian D. Kraft
Andrew T. Gatti
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:

       {¶1} Appellant Jamall Lewis (“Lewis”) appeals his convictions for aggravated

murder, murder, felonious assault, attempted murder, with firearm, repeat violent

offender and gang specifications, and having a weapon while under disability.           Lewis

assigns the following errors for our review:

       I. The trial court erred in entering a conviction which was against the
       manifest weight of the evidence.

       II. The trial court erred in the admission of prior statements of the state’s
       key witness.

       III. The trial court erred in determining that the state’s rationale for using
       a peremptory challenge on an African-American member of the jury panel
       was race-neutral.

       {¶2} Having reviewed the record and the pertinent law, we affirm the decision of

the trial court.

       {¶3} In January 2016, Lewis, Ramel Lee (“Lee”), and Ky’Tric Shropshire

(“Shropshire”) were indicted in a multicount indictment in connection with the April 15,

2013 shooting that resulted in the death of Regina Neal (“Neal”) and injuries to Charles

Elder (“Elder”).   As is relevant herein, Lewis was charged with aggravated murder,

murder, attempted murder, three counts of felonious assault, all containing various

one-year and three-year firearm specifications, criminal gang activity specifications,

repeat violent offender specifications and a notice of a prior conviction, as well as

discharging a firearm near prohibited premises, and having a weapon while under
disability. Lewis pled not guilty and the matter proceeded to a jury trial on June 1,

2016.1

         {¶4} Elder testified that a number of his friends are members of ATM Jack Boyz

gang, but that he is not in a gang. During the evening of April 15, 2013, while Elder and

Neal were walking from Neal’s home on East 134th Street near Caine Avenue, to a store

near Beachwood Avenue, all within an area considered ATM Jack Boyz territory, they

were suddenly fired upon.       Elder was struck in the leg.      Neal was shot in the head and

abdomen, and died from her injuries.

         {¶5} Elder determined that the shots came from behind them. It was “kind of

dark,” but when he looked back, he saw a man four or five houses away, wearing a “red

hoody that was tied tight, you could only see the nose and the mouth of the person.”             As

Elder’s friends, “Diaz” and Jermaine Cottrell, a.k.a. “Mane,” arrived in response to the

gunfire, Elder observed the man in the red hooded sweatshirt driving by in a small white

car.     Elder told police that the assailant was short, stocky, with a “big nose and big

lips.”

         {¶6} Elder testified that he “felt like [he] did recognize him” and he believed the

assailant was Lewis, a J-Park gang member, who had a prior altercation with Elder’s


         Lewis was tried with Shropshire. Shropshire was convicted of aggravated murder, murder,
         1

felonious assault, and having a weapon while under disability. He was sentenced to life
imprisonment with parole eligibility after 25 years. His direct appeal is pending in State v.
Shropshire, 8th Dist. Cuyahoga No. 104775. Lee was tried separately and was sentenced to nine
years on all of the specifications, to a total of fifteen years to life imprisonment on the remaining
charges. This court affirmed his conviction. See State v. Lee, 8th Dist. Cuyahoga No. 104682,
2017-Ohio-1449.
brother.    Elder conceded that he may have not immediately given Lewis’s name to

police, but he testified that in the days or weeks that followed, he provided police with the

name of Jamall Lewis as the person he “thought” was a suspect in the shooting.

Additionally, Elder listed Lewis’s name as a possible suspect on a Victim of Crime

Compensation application.      Shortly before trial, Elder identified Lewis in a photo array,

then again in court.

       {¶7} Cleveland police subsequently learned the name of the owner of the vehicle

that Elder observed immediately after the shooting, but they excluded him from

involvement in the shooting. However, Cleveland Police Detective Tim Entenok (“Det.

Entenok”) testified that early the next morning, Elder informed police that Jamall Lewis

was a suspect. (Tr. 111.)   The police also recovered 16 fired bullet shell casings from the

area, including .40 caliber, .45 caliber and 9 mm caliber shells, linked to three specific

handguns.     Using the National Integrated Ballistic Information Network (“NIBIN”), the

police linked the .40 shell casings to a Taurus pistol that was seized during an arrest in

Bedford Heights.       However, the caliber of the pellet recovered from Neal’s body could

not be determined.

       {¶8} By March 2015, S.L. was being detained in the juvenile detention center,

pending mandatory bindover for aggravated robbery with a firearm specification, and he

decided to cooperate with law enforcement.        Cleveland police detectives interviewed

him twice before obtaining a proffer statement on March 6, 2015.       S.L. stated that at the

time of the proffer, detectives did not know that he would address this matter, and that he,
and not the police, initiated discussion of this shooting. Before the proffer, the state had

not offered him any plea agreement.

       {¶9} S.L. admitted that prior to his proffer, he was facing mandatory bindover

and indictment for aggravated robbery with firearm and gang activity specifications, as

well as a charge of having a weapon while under disability.      As a result of his proffer,

the state agreed that S.L. would serve ten months in a juvenile facility for his offenses, so

“long as he came in and testified truthfully” against Lee, Shropshire, and Lewis.

       {¶10}   S.L. testified that he is a member of the J-Park gang, and that ATM Jack

Boyz gang members are their enemies.       On the afternoon of April 15, 2013, while S.L.

was walking past the Lee Harvard Plaza, ATM Jack Boyz gang member “Mane” shot at

him. S.L. met with other J-Park members Lewis, Shropshire, and Lee at Shropshire’s

house, and told them about the shooting so that they “would fight or shoot at them” in

retaliation. After nightfall, the group assembled in a silver SUV owned by a friend of

Shropshire, then Lee drove them to East 134th Street between Caine Avenue and

Beachwood Avenue, looking for Mane.              Lewis was armed with a .40 caliber

semiautomatic weapon, Shropshire had a .45 caliber semiautomatic weapon, and Lee and

S.L. were unarmed.     S.L. also testified that Lee was wearing a red hooded sweatshirt,

Lewis was wearing a gray hooded sweatshirt, and Shropshire was wearing a blue jacket.

       {¶11}   According to S.L., as they circled the block, they noticed a group of

people standing outside.   They parked a few streets over so they “could get ready to do

something to the ATM Jack Boys.”         Lee parked about a block away and the J-Park
members quickly discussed that Lewis and Shropshire would “[do the] shooting” and Lee

and S.L. would remain in the car.    Lewis and Shropshire then left the vehicle, each with

a weapon. A few minutes later, S.L. heard ten to twenty gunshots, then Lewis and

Shropshire ran back to the car with their weapons in their hands.       Lee drove the group

back to Shropshire’s house.     The next day, S.L. learned from social media that a man

and woman were hit during the shooting. After that, Lewis and Shropshire got rid of the

weapons.       S.L. admitted that he later obtained the .45 firearm that was “going around”

the neighborhood.

       {¶12}     Cleveland Police Det. Colin Ginley (“Det. Ginley”) testified that he

interviewed S.L. twice before the proffer.     According to Det. Ginley, the police do not

“guarantee anything but we’re going to give this information to the detectives and * * *

see if it’s truthful and see if it can be corroborated [then prosecutors will] consider it but

nothing is guaranteed.” If truthful testimony is then provided, the information provided

in the proffer cannot be used against the maker of the statement.

       {¶13} Det. Ginley testified regarding the substance of S.L.’s proffer, including the

earlier shooting and the planned retaliatory shooting. Det. Ginley also testified that he

confirmed that there was a report of gunshots earlier in the day in the area of Lee and

Harvard, and that S.L. correctly identified the caliber of the weapons used during the

shooting later that night.

       {¶14} After the presentation of the state’s case, the trial court denied Lewis’s

motion for acquittal.    Lewis was subsequently acquitted of the charge of discharging a
firearm near prohibited premises, but was convicted of all remaining charges and

specifications.    He was sentenced to 44 years-to-life imprisonment, with parole

eligibility after 30 years.

                     Weight of the Evidence Supporting a Conviction

       {¶15} In the first assigned error, Lewis argues that his conviction is against the

manifest weight of the evidence because Elder and S.L. are not credible and there were

discrepancies in their accounts of the shooting.

       {¶16}      In examining a challenge to the manifest weight of the evidence

supporting a conviction, this court weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. State v. Thompkins, 78

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The discretionary power to grant a new

trial should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction. Id.

       {¶17} In conducting its review, the court remains mindful that the credibility of

the witnesses and the weight to be given the evidence are primarily for the trier of fact to

assess. State v. Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the

syllabus.   Moreover, discrepancies in a witness’ testimony or between his or her

testimony and that of others does not necessarily preclude the jury from believing that
testimony. State v. Rudd, 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, ¶ 37. The

Rudd court explained:

       [A] conviction is not against the manifest weight of the evidence solely

       because the jury heard inconsistent or contradictory testimony. State v.

       Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38, citing State v.

       Asberry, 10th Dist. Franklin No. 04AP-1113, 2005-Ohio-4547, ¶ 11; see

       also State v. Mann, 10th Dist. Franklin No. 10AP-1131, 2011-Ohio-5286, ¶

       37 (“‘While the jury may take note of the inconsistencies and resolve or

       discount them accordingly, * * * such inconsistencies do not render

       defendant’s conviction against the manifest weight or sufficiency of the

       evidence.”’),    quoting   State   v.   Nivens,   10th   Dist.   Franklin   No.

       95APA09-1236, 1996 Ohio App. LEXIS 2245, *7 (May 28, 1996). The

       decision whether, and to what extent, to believe the testimony of a

       particular witness is “within the peculiar competence of the factfinder, who

       has seen and heard the witness.” State v. Johnson, 8th Dist. Cuyahoga No.

       99822, 2014-Ohio-494, ¶ 54.

Id. at ¶ 72.

       {¶18} In this matter, Lewis insists that Elder equivocated on the identity of the

shooter and did not immediately identify him as a perpetrator.      However, Elder testified

that in the days or weeks that followed the shooting, he “gave [police] a name” and

description. Additionally, about a month after the shooting, he listed Lewis’s name on a
Victim of Crime Compensation form as the person he “thought” was the shooter.         Later,

in a photo array and at trial, he identified Lewis as the assailant.   Reviewing the record

as a whole, the jury reasonably could have concluded that Elder’s identification of Lewis

was consistent, credible, and reliable.

       {¶19}    Additionally, S.L. testified regarding the incident leading up to the

shooting, and the planning of a retaliatory shooting. According to S.L.’s testimony, the

group drove to ATM Jack Boyz territory and observed individuals on East 134th Street.

The group parked nearby and planned that Lewis and Shropshire would shoot the

individuals on East 134th Street, and S.L. and Lee would remain in the SUV. S.L. also

testified that he observed Lewis and Shropshire leave the vehicle with weapons.      A few

minutes later, he heard gunshots, and the men then ran back to the vehicle.       The next

day, he learned the identities of the victims.   S.L. was then extensively cross-examined

regarding the leniency of his plea agreement, his subsequent possession of the .45 caliber

weapon used in the shooting, the clothing worn by the J-Park members at the time of the

shooting, and the type of vehicle used in the shooting. Additionally, the jury was also

cautioned, under R.C. 2923.03(D) that because S.L. was an accomplice to the shooting,

they were required to view his testimony with “grave suspicion.”       However, he remained

consistent that the shooting was the result of the earlier altercation with Mane and that

Lewis and Shropshire were the shooters.      His claims regarding the earlier shooting and

the caliber of the weapons were corroborated.     Therefore, after reviewing the record as a

whole, we conclude that although there were discrepancies in portions of S.L.’s
testimony, the jury reasonably could have concluded that this identification was credible

and reliable.     In weighing the evidence and all reasonable inferences, and considering

the credibility of witnesses and resolving conflicts in the evidence, we cannot say that the

jury clearly lost its way and created a manifest miscarriage of justice in convicting Lewis

in this matter.

       {¶20}      Moreover, although Elder’s testimony and S.L.’s testimony differed on

several points, including the color of the shooter’s clothing and the color and model of the

vehicle, following our own review of the record, we cannot say that the jurors acted

unreasonably in finding their testimony regarding Lewis’s involvement to be credible.

Rudd at ¶ 73.

       {¶21} From all of the foregoing, we cannot say that the convictions are against

the manifest weight of the evidence. This assigned error is without merit.

                                Witness’s Prior Statement

       {¶22} In the second assigned error, Lewis asserts that the trial court erred in

concluding that Det. Ginley’s testimony regarding the content of S.L.’s proffer of

evidence was admissible as a prior consistent statement.         Lewis argues that under

Evid.R. 801(D)(1)(b), such statement must be made before an alleged motive to fabricate,

whereas in this instance, the statement was made after S.L. was charged with delinquency

in connection with an aggravated robbery and was motivated to avoid a bindover and

imprisonment.

       {¶23} Evid.R. 801(D)(1)(b) provides:
       (D)   Statements which are not hearsay. A statement is not hearsay if:

       (1) Prior statement by witness. The declarant testifies at the trial or
       hearing and is subject to cross-examination concerning the statement, and
       the statement is * * *

       (b) consistent with his testimony and is offered to rebut an express or
       implied charge against him of recent fabrication or improper influence of
       motive[.]

       {¶24} Under this rule, a declarant’s prior consistent statement is not hearsay if

(1) the declarant testifies at trial and is subject to cross-examination, (2) the statement is

consistent with her prior testimony, and (3) it is offered to rebut an express or implied

charge of recent fabrication or improper motive. See State v. Nichols, 85 Ohio App.3d

65, 70, 619 N.E.2d 80 (4th Dist.1993); State v. Smith, 34 Ohio App.3d 180, 191, 517

N.E.2d 933 (5th Dist.1986); State v. Pritchard, 8th Dist. Cuyahoga No. 78497, 2001 Ohio

App. LEXIS 3400 (Aug. 2, 2001).

       {¶25} In State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596,

the Ohio Supreme Court considered a similar matter.       In that case, co-defendant Walker

entered into a plea agreement that allowed him to plead guilty to lesser charges in

exchange for his truthful testimony against Lang. In Lang’s opening statement, the

defense argued that the state would present “the statements of a person * * * with an

interest in the case,” and “implied that Walker had a motive to lie because of the

favorable terms of his pretrial agreement.” Id. at ¶ 108-109. The Ohio Supreme Court

concluded that these statements constituted “an allegation of recent fabrication that
allowed the state to introduce Walker’s prior consistent statements to rehabilitate his

testimony.” Id. at ¶ 110.   The Lang court explained:

       Defense counsel’s opening statement implied that Walker had had a motive
       to lie because of the favorable terms of his pretrial agreement. This was
       an allegation of recent fabrication or improper influence that allowed the
       state to introduce Walker’s prior consistent statements to rehabilitate his
       testimony. See State v. Wolff, 7th Dist. No. 07 MA 166, 2009-Ohio-2897,
       ¶ 78 (allegations of recent fabrication during opening statement provided
       grounds for admitting prior consistent statement).

       Furthermore, Walker had made the statements at issue before he entered
       into his pretrial agreement. See State v. Howe (Sept. 30, 1994), 2d Dist.
       App. No. 13969, 1994 Ohio App. LEXIS 4352, 1994 WL 527612, *9 (prior
       consistent statement made before an offer of leniency admissible following
       a defense allegation that the offer established a motive to falsify); State v.
       Mullins (1986), 34 Ohio App.3d 192, 197, 517 N.E.2d 945. Thus, no
       error, plain or otherwise, occurred when the trial court admitted Walker’s
       prior consistent statements. (Emphasis sic.)

Id. at ¶ 110-111.

       {¶26} In this case, defendant’s trial attorney cross-examined S.L. as follows:

       Q. So you’ve got all these problems, all this trouble developing for you at
       that point, and you make a decision, right?

       A. Yes.

       Q. With the assistance of your attorney, you reach out to the prosecutor’s
       office and you offer to give them information, correct?

       A. Yes.

       Q. There’s a requirement that goes with this offer of information that
       you’re going to have to do exactly what it is you’re doing right now,
       correct?

       A. Yes.
       Q. And not only are you going to sit in that seat and testify, but you’re
       going to testify truthfully, correct?

       A. Yes.

       Q. And consistently with whatever it is you tell them in that statement you
       gave on March 6th, 2015, correct?

       A. Yes.

       Q. And the deal that you cut is absolutely dependant upon them being
       satisfied that you lived up to your end of the bargain, correct?

       A. Yes.

       ***

       Q. [Y]ou’re pretty motivated to give this group of people right here
       exactly what it is they want in order to make sure that you maintain that deal
       because you’re still hanging out there a little bit, correct?

       A. Right.

       {¶27}     The trial court subsequently ruled that the proffer statement was

admissible as a prior consistent statement. Applying Lang, we likewise find no abuse of

discretion because it involves similar allegations of recent fabrication.    Moreover, the

record demonstrates that S.L. brought up this matter to police during the pendency of

another investigation.   S.L. then provided information about this matter before he

entered into his pretrial agreement, so it was made before an offer of leniency.

       {¶28}     Additionally, we note that Det. Ginley’s testimony contains repeated

references of what S.L. “said,” “talked about,” “brought up,” and “spoke” about, so he

clearly indicated that he was repeating S.L.’s statements.        Therefore, we find this

testimony to be cumulative to S.L.’s own trial testimony, so it is doubtful that it deprived
Lewis of a fair trial.       Accord State v. Miller, 8th Dist. Cuyahoga No. 100461,

2014-Ohio-3907, ¶ 79.

         {¶29} This assigned error is without merit.




                                        Batson Claim

         {¶30} In the third assigned error, Lewis asserts that the trial court erred in

accepting the state’s rationale for using a peremptory challenge to dismiss an

African-American jury panel member.

         {¶31} In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),

the United States Supreme Court held that purposeful discrimination in the use of

peremptory challenges to exclude members of a minority group violates the Equal

Protection Clause of the United States Constitution. Id. at 82.        The Batson court set

forth a three-step procedure for determining whether a peremptory strike violates equal

protection.    First, the opponent of the peremptory strike must make a prima facie case of

racial discrimination, demonstrating that members of a recognized racial group were

peremptorily challenged, and the facts and circumstances raise an inference that the

prosecutor used the peremptory challenge to exclude the jurors because of their race. Id.

at 96.    Second, if the trial court finds that the opponent has set forth a prima facie case,

then the proponent of the strike must come forward with a racially neutral explanation for
the strike.   Id. at 97-98.     Finally, if the proponent puts forth a racially neutral

explanation, the trial court must decide, based on all the circumstances, whether the

opponent has proven purposeful racial discrimination.        Id. This requires the court to

“examine the prosecutor’s challenges in context to ensure that the reason is not merely

pretextual.” State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶

65.   However, the ultimate burden of persuasion regarding racial motivation rests with,

and never shifts from, the opponent of the strike.      Rice v. Collins, 546 U.S. 333, 338,

126 S.Ct. 969, 163 L.Ed.2d 824 (2006).

       {¶32} A trial court’s finding of no discriminatory intent will not be reversed on

appeal unless it was clearly erroneous. State v. Hernandez, 63 Ohio St.3d 577, 583, 589

N.E.2d 1310 (1992), following Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859,

114 L.Ed.2d 395 (1991). This deferential standard arises from the fact that the third step

of the Batson inquiry turns largely on the trial court’s evaluation of credibility.   See State

v. Herring, 94 Ohio St.3d 246, 257, 2002-Ohio-796, 762 N.E.2d 940, citing Batson at 98.

       {¶33} In this matter, the defense made a Batson challenge after the state used a

peremptory strike to strike a young African-American male who worked in retail.            The

state then explained that “he is close in age to the age of these defendants * * * and he’s

from Cleveland Heights, which from past unfavorable jury verdicts” led him to conclude

that the juror would “tend to side more with the defense.”      The defense countered that a

young Caucasian female college graduate was not stricken and that “Cleveland Heights is
a completely fair and neutral territory.”    The court found the state’s explanation to be

sufficient, stating:

       [I]t’s not that there has to be a pattern that has been expressed. It could be
       made on the first. I believe he’s the first African-American the State is
       excusing here and they state it’s because he’s of similar age of the
       defendant, not based solely on race. There’s plenty of other
       African-Americans on this jury. And the record will reflect that the first
       two causal challenges were made against African-American jurors, * * *
       [which] were initiated by the defense in this case.

       I believe the State satisfied their burden and I’ll overrule the Batson
       challenge.

       {¶34} In evaluating the Batson challenge, we begin by noting that in State v.

Pennington, 8th Dist. Cuyahoga No. 78878, 2001 Ohio App. LEXIS 4888 (Nov. 1, 2001),

this court upheld a peremptory strike used to excuse a male African-American juror

where the stated reason was that the juror was the same age as the defendant.

       {¶35} Turning to the issue of the juror’s city of residence, we note that in Brown

v. Grounds, N.D. Cal. No. 12-CV-01714, 2014 LEXIS 114795 (Aug. 18, 2014), the

district court considered and reviewed a similar Batson challenge following               a

prosecutor’s peremptory challenge to prospective juror who lived in Berkeley, California,

which, according to the prosecutor, is “probably the most liberal city in the United

States.”     The juror was also politically active.     The trial court found no Batson

violation.    In addressing the juror’s residence in Berkeley, the trial court observed that

even if the peremptory strike was based solely on her Berkeley residence, “that would be

a race-neutral reason.” Id.      The district court, reiterating the analysis applied in the

state appellate court, found no Batson violation because the defendants did not “contend
that residence in Berkeley, and involvement in the politics of that city, are a proxy for

race, and nothing we are aware of would support such an assumption.” Id., applying

People v. Brown, 1st Dist., Division Four Case No. A118569, 2011 Cal. App. Unpub.

LEXIS 2392 (Mar. 30, 2011).

       {¶36}    In United States v. Bishop, 959 F.2d 820 (9th Cir.1992), the court

considered a prosecutor’s peremptory challenge of an African-American welfare

eligibility worker living in Compton, California.      The prosecutor explained that he

believed that “an eligibility worker living in Compton is likely to take the side of those

who are having a tough time, aren’t upper middle class, and probably believes that police

in Compton in South Central L.A. pick on black people [and see] police activity as more

intrusive[.]” Id. at 822.   The court concluded that a Batson violation had occurred, but

it also noted as follows:

       This is not to say that residence never can constitute a legitimate reason for

       excluding a juror, even after a prima facie showing of intentional

       discrimination has been made.        On the contrary: What matters is not

       whether but how residence is used.

Id. at 826. Accord People v. Stevenson, 1st Dist., Division Two Case No. A121825,

2010 Cal. App. Unpub. LEXIS 1499 (Mar. 2, 2010) (peremptory strike upheld where

dismissal of early education teacher based on her “sociology type background, common

liberal type background” and residence in San Francisco and Ventura County, which the

prosecutor believed are “liberal” areas).
       {¶37} Applying the foregoing, we hold that the prosecuting attorney could put

forth residence as a racially neutral basis for the peremptory challenge, so long as it is not

actually a pretext or surrogate for racial discrimination.   In this matter, there is no basis

in the record upon which to conclude that that prohibition was violated herein.

Moreover, in light of that racially neutral explanation, and the absence of purposeful

racial discrimination, the trial court’s determination that there was no discriminatory

intent is not clearly erroneous.

       {¶38} Finally, although Lewis also challenges the trial court’s statement that

there are “plenty of African-Americans on the panel,” the record indicates that the court

did not impermissibly require a pattern before finding discriminatory motive, but was

instead noting that the prosecutor had not used any peremptory challenges to strike other

African-Americans, a factor that a trial judge may take as an indication of

nondiscriminatory motive. See, e.g., United States v. Lane, 866 F.2d 103, 106 (4th

Cir.1989) (“the fact that two black jurors were seated on Lane’s jury and * * * prosecutor

exercised only one of his three peremptory challenges tends to negate a motive to

discriminate”).

       {¶39} Following a thorough review of the record, we cannot say that the trial

court’s decision finding lack of discriminatory intent was clearly erroneous.            The

assigned error is without merit.

       {¶40} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
LARRY A. JONES, SR., J., CONCUR
