[Cite as State v. Evans, 2010-Ohio-4813.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-10-22

        v.

DAVID V. EVANS,                                           OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2009 0327

                                      Judgment Affirmed

                            Date of Decision: October 4, 2010




APPEARANCES:

        Destiny R. Slaughterbeck for Appellant

        Jana E. Emerick for Appellee
Case NO. 1-10-22


PRESTON, J.

       {¶1} Defendant-appellant, David V. Evans (hereinafter “Evans”), appeals

the judgment of conviction and sentence entered against him in the Allen County

Court of Common Pleas, following a jury trial in which Evans was found guilty of

assault on a corrections officer. For the reasons that follow, we affirm.

       {¶2} On October 15, 2009, the Allen County Grand Jury returned an

indictment charging Evans with one count of assault on a corrections officer in

violation of R.C. 2903.13(A)&(C)(2)(a), a felony of the fifth degree. On October

26, 2009, Evans was arraigned and entered a plea of not guilty.

       {¶3} On February 9, 2010, a jury trial commenced, and after the

presentation of evidence, the jury returned a verdict finding Evans guilty of assault

on a corrections officer. The matter proceeded to sentencing and the trial court

sentenced Evans to twelve months in prison, which was to be served consecutive

to the prison term in which Evans was already serving.

       {¶4} Evans now appeals and raises one assignment of error.

                          ASSIGNMENT OF ERROR

       THE REMOVAL OF THE AFRICAN-AMERICAN JUROR
       BY PEREMPTORY CHALLENGE VIOLATED THE DUE
       PROCESS AND EQUAL PROTECTION RIGHTS OF THE
       APPELLANT, RESULTING IN THE DENIAL OF A FAIR
       TRIAL.




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       {¶5} In his only assignment of error, Evans argues that, contrary to

Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, a

peremptory challenge was exercised by the State against a prospective juror of

African-American descent, which gave rise to an inference of discrimination, and

that consequently, the trial court’s denial of his Batson motion ultimately resulted

in a violation of his constitutional rights.

       {¶6} In Batson v. Kentucky, the United States Supreme Court held that

“the Equal Protection Clause forbids the prosecutor to challenge potential jurors

solely on account of their race.” 476 U.S. at 89. The Court stated that a defendant

can demonstrate a violation of his equal protection rights pursuant to the

Fourteenth Amendment of the United States Constitution by showing that the

State’s use of peremptory challenges at the defendant’s trial was used to

intentionally exclude members of the defendant’s race. Id. at 96. As a result, the

Court established a three-step procedure for evaluating claims of racial

discrimination concerning peremptory challenges: “‘First, the opponent of the

strike must make a prima facie showing of discrimination. Second, the proponent

must give a race-neutral explanation for the challenge. Third, the trial court must

determine whether, under all the circumstances, the opponent has proven

purposeful racial discrimination.’” State v. Douglas, 3d Dist. 9-05-24, 2005-Ohio-

6304, ¶29, quoting State v. White (1999), 85 Ohio St.3d 433, 436, 709 N.E.2d 140,



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Case NO. 1-10-22


citing Batson, 476 U.S. at 96-98. Regarding the third step, the Supreme Court of

Ohio has stated that:

       [T]he trial court may not simply accept a proffered race-neutral
       reason at face value, but must examine the prosecutor’s
       challenges in context to ensure that the reason is not merely
       pretextual. “[T]he rule in Batson provides an opportunity to the
       prosecutor to give the reason for striking the juror, and it
       requires the judge to assess the plausibility of that reason in light
       of all evidence with a bearing on it.” Miller-El v. Dretke (2005),
       545 U.S. 231, 251-52, 125 S.Ct. 2317, 162 L.Ed.2d 196. If the trial
       court determines that the proffered reason is merely pretextual
       and that a racial motive is in fact behind the challenge, the juror
       may not be excluded. Id. at 252.

State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶65.

Additionally, on appeal, this Court will not reverse a trial court’s finding that there

was no purposeful racial discrimination unless it is clearly erroneous. State v.

Stribling, 3d Dist. No. 1-08-59, 2009-Ohio-1444, ¶16, citing State v. Were, 118

Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶61.

       {¶7} Here, during voir dire, the State exercised the first of its four

peremptory challenges to excuse prospective juror Branch, who was African-

American. (Feb. 9, 2010 Tr. at 77). Immediately, the defense raised a Batson

challenge to the State’s excusal of Branch, since Evans was also African-

American. (Id. at 78-79). Without addressing the issue regarding whether the

defense had established a prima facie case of discrimination, the State responded

by providing several racially neutral reasons for why it was peremptorily



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Case NO. 1-10-22


challenging the juror.1 First, the State claimed that the juror had been convicted of

domestic violence, or at least a lesser included charge of that offense. (Id. at 79).

In addition, the State noted that the juror had to take anger management

counseling. (Id.). As a result, the State claimed it was concerned that the criminal

charge against Evans, assault, was too similar to the domestic violence incidents

discussed by the juror, especially considering that they both involved acts of

physical violence. (Id. at 79-80). Moreover, the State also noted that the juror had

indicated he had an illness and was taking medication, which he indicated could

interfere with his ability to serve on the jury. (Id. at 80). Finally, the State pointed

out that the juror himself had expressed that “he wouldn’t feel right” being a

member of the jury. (Id. at 80).

         {¶8} Thereafter, the trial court addressed the issue regarding the defense’s

prima facie case, specifically noting the following: that Evans was African-

American; that Branch was the only African-American of the twelve people

initially paneled; the nature of the underlying crime; and the treatment of members

of the venire with similar characteristics. (Id. at 80-82). After noting the above,

the trial court concluded that, “[t]aking into consideration all of those things I will

at least make a finding for purposes of my analysis that the defense has made out a

prima facie case with respect to Mr. Branch. He’s the only African-American, it


1
 We note that the trial court addressed the issue of whether the defense had established a prima facie case
of discrimination after the State offered its racial neutral reason for exercising its peremptory challenge.


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Case NO. 1-10-22


appears, to be on the twelve that we’re focusing on. So, for purposes of the Batson

analysis, while it could be argued perhaps there hasn’t been a prima facie case, I’m

going to find that there is.”2 (Id. at 82). Furthermore, after considering all of the

circumstances and the State’s racially neutral reasons, the trial court ultimately

determined that the State had not engaged in racial discrimination, and the

challenge was overruled. (Id. at 80-83).

         {¶9} On appeal, Evans argues that the record fails to establish that the

explanations offered by the State were race-neutral, and therefore, the trial court’s

decision to overrule his motion was clearly erroneous. However, after reviewing

the record, we cannot find that the trial court’s decision was clearly erroneous.

         {¶10} First of all, when the trial court inquired as to whether any of the

potential jurors were on medication, Branch replied “yes” and informed the court

that he suffered from “M.S.,” which “affected [him] every now and then.” (Feb. 9,

2010 Tr. at 19-20). In particular, Branch stated that his medication caused him to

become “dizzy, [and have] real bad headaches,” and that it sometimes affected his

ability to pay attention. (Id. at 20). Moreover, when asked if he would be willing

to sit on the jury, Branch replied, “[h]onestly, if I feel like this, I’m being honest, I

wouldn’t feel up to it.” (Id.).


2
  Although this Court may not agree with the trial court’s finding that the defense had established a prima
facie case of discrimination, this author wishes to note that he is sympathetic to the trial court’s dilemma.
Nevertheless, neither party challenged the defense’s prima facie case and because of the ultimate outcome,
this Court does not find that the trial court’s decision was clearly erroneous.


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Case NO. 1-10-22


       {¶11} Furthermore, there was additional evidence that Branch had

experienced prior dealings with the court system. Specifically, Branch indicated

that, even though at least one of the charges had been reduced to a disorderly

conduct, he had been involved “more than once” with charges stemming from

domestic violence incidents. (Id. at 41). Branch went on to explain that he

believed that there had been false accusations against him, but that it had been too

late to drop the charges against him, so as a result, he was placed on probation and

had to go to anger management counseling, which he had just recently completed.

(Id. at 43-46). We acknowledge that despite his dealings with the court system in

the past, the juror told defense counsel that he would be able to keep an open

mind, listen carefully to the evidence, and follow the judge’s instructions. (Id. at

54-55). Nevertheless, when defense counsel asked if he would have any difficulty

being “fair and impartial,” Branch replied, as follows, “[t]o be very honest,

anything that deals with stuff like this, considering the fact that I’ve been involved

with Court cases and stuff, I wouldn’t feel right to say, you know, if somebody

was going down or something. I wouldn’t feel right being a part of it.” (Id. at 55).

       {¶12} Based on the above evidence, this Court cannot find that the trial

court’s decision was clearly erroneous. First of all, there were indications that the

prospective juror could have physical problems with sitting on the jury.           In

particular, Branch said that he was on medication which could sometimes affect



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Case NO. 1-10-22


his ability to pay attention and cause him to become dizzy and have headaches.

Moreover, there were indications that the prospective juror had been recently

involved with criminal charges in which physical violence had been an issue.

Specifically, Branch acknowledged that he had just been on probation and

completed anger management counseling because of allegations of domestic

violence. Furthermore, Branch himself expressed his unwillingness to be a part of

a jury. Not only did Branch indicate that he “wouldn’t feel up to” being on a jury

considering his medical condition and medication, but he also acknowledged that

given his recent involvement with the court system he “wouldn’t feel right being a

part of it.” Therefore, we believe that the trial court’s decision to overrule the

Batson challenge was not clearly erroneous since there was no evidence of

purposeful racial discrimination.

       {¶13} Evans’ assignment of error is, therefore, overruled.

       {¶14} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and ROGERS, J., concur.

/jlr




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