                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-0825

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                               Marcus Anthony Mattox,
                                     Appellant.

                                Filed April 11, 2016
                                     Affirmed
                                Smith, Tracy, Judge

                            Ramsey County District Court
                              File No. 62-CR-14-7094

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith,

Tracy, Judge.

                       UNPUBLISHED OPINION

SMITH, TRACY, Judge

      On appeal from his convictions for felony domestic assault, terroristic threats,

theft, false imprisonment, and three counts of fifth-degree assault, appellant Marcus
Anthony Mattox argues that the state discriminated on the basis of race in excluding a

prospective juror. Mattox raises several additional arguments in a pro se supplemental

brief. Because the district court did not clearly err in finding that Mattox failed to prove

purposeful racial discrimination and because the other arguments in Mattox’s pro se

supplemental brief lack merit, we affirm.

                                            FACTS

       On September 17, 2014, Mattox assaulted and threatened his girlfriend, R.O. The

assault continued into the apartment hallway, where Mattox assaulted three neighbors and

stole one neighbor’s cell phone. The state charged Mattox with felony domestic assault,

terroristic threats, theft, three counts of fifth-degree assault, and false imprisonment.

       Following voir dire, the state exercised a peremptory challenge to exclude

prospective juror A.J. from the jury panel. Because A.J. was the only African-American

prospective juror remaining on the panel, Mattox challenged the exclusion under Batson

v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), which prohibits the state from striking

a prospective juror on the basis of race.

       The district court found that Mattox had not made a prima facie showing of

purposeful discrimination, but nevertheless asked the prosecutor to provide a race-neutral

reason for her peremptory challenge. The prosecutor explained that, while observing the

panel during voir dire, she saw A.J. “at least on four occasions, exchange glances with

[Mattox], and they smiled at each other . . . several times.” In addition, according to the

prosecutor, A.J. returned for the second day in “an extremely low-cut blouse and

continued the same behavior.” The prosecutor explained that she used a peremptory


                                              2
challenge because (1) “it is clear that [A.J. has] formed at least a bare attachment to

[Mattox]”; (2) A.J. “immediately looked away” whenever the prosecutor made eye

contact with her, showing that “she was favoring one side over the other”; and (3) A.J.

was “overly hostile” and “not as engag[ed]” as other potential jurors. The district court

stated that it had not observed any conduct favoring one side or the other, but had

observed that A.J. made “little eye contact” during questioning and did not volunteer

much information. Mattox’s attorney responded that, while A.J. appeared bored, A.J.

was engaged and respectful; that the prosecutor was also wearing a “low-cut blouse”; and

that attire was not a legitimate reason for a peremptory challenge.

       The district court denied Mattox’s Batson challenge, ruling that (1) Mattox had not

established a prima facie case of purposeful discrimination; (2) the state had provided

sufficient race-neutral explanations for its peremptory challenge; and (3) Mattox had not

shown that the race-neutral explanations were pretextual or that the real reason for the

peremptory challenge was the prospective juror’s race.

       The jury found Mattox guilty of all seven charges. Mattox appealed.

                                     DECISION

                                             I.

       Mattox argues that the district court clearly erred by denying his Batson challenge.

The Equal Protection Clause of the United States Constitution forbids a prosecutor from

challenging potential jurors “solely on account of their race.” Batson, 476 U.S. at 89, 106

S. Ct. at 1719.




                                             3
             To make a successful Batson challenge, the defendant must
             first make a prima facie showing that the state exercised a
             peremptory challenge on the basis of race, the burden then
             shifts to the state to articulate a race-neutral explanation,
             [and] then the district court must determine whether the
             defendant met his burden of proving intentional
             discrimination.

State v. McDonough, 631 N.W.2d 373, 385 (Minn. 2001); see Batson, 476 U.S. at 96-98,

106 S. Ct. at 1723-24; see also Minn. R. Crim. P. 26.02, subd. 7(3). The district court’s

determination on a Batson challenge “will not be reversed unless clearly erroneous.”

McDonough, 631 N.W.2d at 385. We give deference to the district court’s Batson

determination because “the record may not accurately reflect all relevant circumstances

that may properly be considered.” State v. White, 684 N.W.2d 500, 506 (Minn. 2004).

      The district court found that Mattox failed to establish a prima facie case of

purposeful discrimination. See id. at 505 (explaining that a prima facie case of racial

discrimination requires “(1) that one or more members of a racial group have been

peremptorily excluded from the jury; and (2) that circumstances of the case raise an

inference that the exclusion was based on race”). But because the district court continued

the Batson analysis and “ruled on the ultimate question of intentional discrimination, the

question whether [Mattox] made a prima facie showing is moot.” See State v. Scott, 493

N.W.2d 546, 548 (Minn. 1992). We continue to the next step under Batson.

      The state has the burden to “articulate a race-neutral explanation” for its

peremptory challenge. McDonough, 631 N.W.2d at 385. Here, the prosecutor provided

three race-neutral explanations for her peremptory challenge: (1) “it is clear that [A.J.

has] formed at least a bare attachment to [Mattox]”; (2) A.J. “immediately looked away”


                                            4
whenever the prosecutor made eye contact with her, showing that “she was favoring one

side over the other”; and (3) A.J. was “overly hostile” and “not as engag[ed]” as other

potential jurors. No discriminatory intent is inherent in these explanations. See id.

(“Unless a discriminatory intent was inherent in the prosecutor’s explanation, the reason

offered will be deemed race neutral.” (quotation omitted)). As a result, the state met its

burden to articulate a race-neutral explanation for its peremptory challenge. See id.

       Finally, the district court determined that Mattox had not met his burden to show

that the state’s race-neutral explanations were pretextual and the real reason for the strike

was intentional discrimination.    At this third step, “the district court may take into

consideration whether the [s]tate’s strike will result in the disproportionate exclusion of

members of a certain race.” State v. Carridine, 812 N.W.2d 130, 136 (Minn. 2012). The

district court also evaluates the prosecutor’s intent. State v. James, 520 N.W.2d 399, 403

(Minn. 1994). “A [district] court’s determination of the genuineness of the prosecutor’s

response is entitled to great deference on review.” Id. at 404 (quotations omitted).

       Mattox argues that the state’s reasons for striking A.J. were pretextual because the

prosecutor did not comment on A.J.’s behaviors at the time they occurred, the district

court did not observe all of A.J.’s reported behaviors, and the prosecutor was also

wearing a “low-cut blouse” and female prospective jurors should not be penalized for

their clothing choices.

       First, the prosecutor did not need to point out A.J.’s behavior or provide a reason

for her peremptory challenge until after Mattox objected that the challenge was based on




                                             5
race.   A reason is not required until the second step of the Batson analysis.             See

McDonough, 631 N.W.2d at 385.

        Second, the district court did not need to observe all aspects of A.J.’s behavior to

accept the prosecutor’s race-neutral explanations as nonpretextual; it only needed to

analyze the genuineness of the prosecutor’s response. See James, 520 N.W.2d at 404.

The district court concluded that A.J.’s apparent favoring of the defense, demonstrated

through eye contact and smiling at Mattox, as reported by the prosecutor, was a race-

neutral explanation for the peremptory challenge. In rejecting Mattox’s assertion of

pretext, the district court impliedly determined that the prosecutor’s report was credible.

The district court’s finding that Mattox failed to show pretext is entitled to “considerable

deference” because it is based on a determination of the prosecutor’s credibility. See

State v. Taylor, 650 N.W.2d 190, 202 (Minn. 2002).

        Finally, the district court did not mention or rely on the prospective juror’s dress in

finding that the prosecutor’s explanation was race neutral and that discrimination was not

proved. Attire therefore did not play a role in the decision.

        We conclude that Mattox did not meet his burden to show that the state’s

peremptory challenge of A.J. was purposefully discriminatory.              The district court

therefore did not clearly err by denying Mattox’s Batson challenge.

                                              II.

        Mattox raises several additional arguments in his pro se supplemental brief:

(1) ineffective assistance of counsel; (2) prosecutorial misconduct regarding notice of




                                               6
Spreigl evidence; (3) introduction of a phone call between Mattox and R.O.’s mother;

and (4) sufficiency of the evidence for the false-imprisonment conviction.

       A. Ineffective Assistance of Counsel

       Mattox appears to argue that his attorney was ineffective because she did not

introduce relationship evidence and did not introduce a letter from R.O. to impeach

R.O.’s testimony. To show ineffective assistance of counsel, the defendant must “prove

that his counsel’s representation fell below an objective standard of reasonableness” and

that, but for the error, “the result of the proceeding would have been different.” Gates v.

State, 398 N.W.2d 558, 561 (Minn. 1987) (quotations omitted).

       Mattox’s objections to his counsel’s performance involve trial strategy, which is

generally not subject to review as ineffective assistance of counsel. See Andersen v.

State, 830 N.W.2d 1, 10 (Minn. 2013) (“We will generally not review an ineffective-

assistance-of-counsel claim that is based on trial strategy.”). We note, however, that

counsel’s alleged statement that Mattox could not introduce relationship evidence against

his victims is unsupported by the record and, in any event, would have been legally

correct.   See Minn. Stat. § 634.20 (2014) (explaining that relationship evidence is

evidence of similar conduct by the defendant against the victim of domestic abuse or

other family members). We also observe that introducing R.O.’s letter could not have

affected the outcome of Mattox’s trial given R.O.’s testimony about the letter’s contents,

including cross-examination by Mattox’s attorney.            Mattox cannot show ineffective

assistance of counsel on either of these bases he asserts.




                                              7
       B. Prosecutorial Misconduct

       Mattox next asserts that the prosecutor committed misconduct by failing to

provide notice of the state’s intent to introduce certain evidence and by causing him to

reject a potential plea deal. Because Mattox did not object to this conduct below as

prosecutorial misconduct, we must determine whether the prosecutor committed a plain

error that affected Mattox’s substantial rights. See State v. Ramey, 721 N.W.2d 294, 299

(Minn. 2006).

       Mattox refers to the challenged evidence as Spreigl evidence.          But Spreigl

evidence involves evidence of other crimes, wrongs, or acts under Minn. R. Evid. 404(b).

See State v. Campbell, 861 N.W.2d 95, 102 (Minn. 2015); see generally State v. Spreigl,

272 Minn. 488, 496-97, 139 N.W.2d 167, 173-73 (1965). The prosecutor explained

before trial that she did not intend to offer evidence under rule 404(b) and had therefore

not provided the corresponding notice.

       Mattox instead appears to challenge the prosecutor’s introduction of history-of-

relationship and domestic-conduct evidence pursuant to Minn. Stat. § 634.20 (2014). But

the prosecutor provided notice of her intent to introduce such evidence, and the district

court granted the state’s motion to allow the introduction of this evidence. Nothing in the

record suggests that the prosecutor committed misconduct by introducing this evidence.

       Regarding Mattox’s plea-bargain argument, the record contains no evidence to

support Mattox’s allegations. At a pretrial hearing, Mattox announced his rejection of the

state’s offered plea bargain because he was “under so much duress” and had “ineffective

counsel.” On appeal, Mattox appears to assert that he rejected the plea bargain because


                                            8
the prosecutor rejected his request to plead guilty to a different charge. The record

reveals no prosecutorial misconduct or ineffective assistance of counsel related to

Mattox’s plea bargaining, and there is no evidence Mattox was “under duress.”

       C. Phone Call with R.O.’s Mother

       Mattox argues that the district court abused its discretion by allowing the state to

introduce into evidence a phone call between Mattox and R.O.’s mother. “Evidentiary

rulings rest within the sound discretion of the [district] court and will not be reversed

absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

       Contrary to Mattox’s assertion, we can find no evidence in the record that this

phone call was introduced at trial. The district court overruled Mattox’s pretrial objection

to the admission of the phone call, and the parties agreed that a cautionary instruction

would accompany its introduction, but the state never introduced the phone call. Even if

it had, we agree with the district court that the phone call was not improper hearsay

because it was not offered for the truth of the matter asserted. See Minn. R. Evid. 801(c).

There is no evidence that the district court abused its discretion regarding this phone call.

       D. Sufficiency of the Evidence

       Finally, Mattox argues that the evidence was insufficient to support his conviction

for false imprisonment. When we assess the sufficiency of evidence, “we review the

evidence to determine whether the facts in the record and the legitimate inferences drawn

from them would permit the jury to reasonably conclude that the defendant was guilty

beyond a reasonable doubt of the offense of which he was convicted.” State v. Al-

Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (quotation omitted). We review the record in


                                              9
the “light most favorable to the conviction.” State v. Webb, 440 N.W.2d 426, 430 (Minn.

1989).

         To be convicted of false imprisonment, Mattox must have knowingly lacked

lawful authority to confine or restrain R.O. without R.O.’s consent. See Minn. Stat.

§ 609.255, subd. 2 (2014); 10 Minnesota Practice, CRIMJIG 15.04 (2006). Mattox

argues that he simply “guided [R.O.] back into the house” at her request and did not hold

R.O. against her will. R.O. testified that she followed Mattox into the hall while in a

towel to get her keys back from him. Mattox then grabbed her arm and pulled her back

into the apartment. At that time, R.O. wanted to go back inside the apartment “without

causing a scene.” But R.O. testified that she then repeatedly told Mattox to leave the

apartment and that he hit her, grabbed her arm, and pulled her unwillingly from the

bedroom into the bathroom, where he hit her again. When R.O. eventually ran to another

apartment, Mattox again began pulling her back to her apartment. This time, R.O. did not

want to go with Mattox. While R.O. may have initially consented to returning to her

apartment, the evidence supports the conclusion that R.O. did not consent to Mattox’s

continued confinement and restraint of R.O. thereafter.      The evidence is therefore

sufficient to support Mattox’s conviction for false imprisonment.       See Minn. Stat.

§ 609.255, subd. 2.

         Affirmed.




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