MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Feb 18 2019, 6:29 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brian A. Karle                                           Curtis T. Hill, Jr.
Ball Eggleston, PC                                       Attorney General of Indiana
Lafayette, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Demariyon Wooden,                                        February 18, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1183
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Helen W. Marchal,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G15-1708-F6-31470



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1183 | February 18, 2019                  Page 1 of 7
                                       Statement of the Case

[1]   Demariyon Wooden (“Wooden”) appeals his conviction, following a jury trial,

      for Level 6 felony auto theft.1 He argues that the trial court erred in rejecting his

      challenge, commonly known as a Batson challenge, that the State’s peremptory

      strike of a potential juror was improperly based on the juror’s race. Finding no

      error, we affirm.


[2]   We affirm.


                                                     Issue

                  Whether the trial court erred when it overruled Wooden’s Batson
                   challenge to the State’s peremptory strike of a potential juror.

                                                     Facts

[3]   On August 25, 2017, the State charged Wooden with one count of Level 6

      felony auto theft, and he proceeded to a jury trial. On the day of trial,

      Prospective Juror #2 was the only African-American in the jury venire. During

      voir dire, the State had the following exchange with the prospective juror:


                 [STATE]: Prospective Juror #2, how are you doing today sir?
                 PROSPECTIVE JUROR #2: I’m all right.
                 [STATE]: On your questionnaire I noted that you said that you
                 didn’t feel like you could be fair and impartial in some cases. Is
                 that true?



      1
          IND. CODE § 35-42-4-2.5.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1183 | February 18, 2019   Page 2 of 7
              PROSPECTIVE JUROR #2: Yes.
              [STATE]: What type of cases did you kind of mean or –
              PROSPECTIVE JUROR #2: I don’t know. I really don’t have
              a specific –
              [STATE]: Okay. So, you don’t know the specific.
              PROSPECTIVE JUROR #2: No.
              [STATE]: So, do you still feel like you can’t be fair and impartial
              here today?
              PROSPECTIVE JUROR #2: I could be.
              [STATE]: You could be?
              PROSPECTIVE JUROR #2: Yeah.


      (Tr. 61).


[4]   Thereafter, the trial court announced that the jury had been selected. The jury

      did not include Prospective Juror #2. The court then attempted to release those

      not selected, but Wooden objected. The trial court held a bench conference to

      discuss his objection. The following discussion occurred between the trial court

      and the parties:


              [WOODEN’S COUNSEL]: Batson v. Kentucky. Argument on
              Prospective Juror #2.
              THE COURT: Yes.
              [WOODEN’S COUNSEL]: Prospective Juror #2 completely
              (inaudible). Per my observation, there’s 14 people in the box, 12
              appear to be white, number 8 is Hispanic, number 2 is a black
              male. There was nothing that wasn’t completely neutral. He
              said . . . quote I could be fair, and I think the only reason for him
              being struck, per Batson, would be his race and I think it’s his
              right to be on the jury as well as my client’s right to a fair jury.
              THE COURT: Thank you. Is there a race neutral (inaudible)?



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1183 | February 18, 2019   Page 3 of 7
              [STATE]: Yes Judge, my rational was I had asked him questions
              about being fair and impartial. He had noted on his juror
              questionnaire (inaudible) asked. He said he had concerns about
              the type of trial. I asked again if he could and he said maybe, or
              he could. I felt the ambivalence or equivocation was a concern,
              and so for that reason we struck him.
              THE COURT: All right.
              [WOODEN’S COUNSEL]: But that sounds like a reason to
              strike someone for cause, and the State didn’t bring that up on
              cause. Also, I don’t think he (inaudible) I think he pretty much
              confirmed without much (inaudible) that he could be fair.
              THE COURT: Okay. All right, my notes on Juror #2, I’ve got
              could be – in quotes he could be very impartial, but I did note
              that there was a slight hesitation and I never – I didn’t – I guess I
              wasn’t clear as to the type of case he could be fair and impartial
              on. So, I felt as though there was some ambiguity on that. So, I
              am going to deny your challenge.


      (Tr. 83-84).


[5]   The jury found Wooden guilty as charged. The trial court sentenced him to

      two (2) years, with 386 days executed and 344 days suspended. Wooden now

      appeals.


                                                  Decision

[6]   Wooden contends that the trial court erred by denying his challenge alleging

      that the State had improperly exercised its peremptory challenge to strike an

      African-American juror from the potential jury pool in violation of Batson v.

      Kentucky, 476 U.S. 79 (1986). The State responds that the prosecutor’s reasons

      for the peremptory strike were race-neutral and did not contravene Batson.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1183 | February 18, 2019   Page 4 of 7
[7]   Our Indiana Supreme Court has set forth the following explanation of and

      standard of review for a Batson challenge:

              Purposeful racial discrimination in selection of the venire violates
              a defendant’s right to equal protection because it denies him the
              protection that a trial by jury is intended to secure. The
              exclusion of even a sole prospective juror based on race,
              ethnicity, or gender violates the Fourteenth Amendment’s Equal
              Protection Clause.
              Pursuant to Batson and its progeny, a trial court must engage in a
              three-step process in evaluating a claim that a peremptory
              challenge was based on race. First, a defendant must make a
              prima facie showing that a peremptory challenge has been
              exercised on the basis of race; second, if that showing has been
              made, the prosecution must offer a race-neutral basis for striking
              the juror in question; and third, in light of the parties’
              submissions, the trial court must determine whether the
              defendant has shown purposeful discrimination. A step two
              explanation is considered race-neutral if, on its face, it is based on
              something other than race. Although the burden of persuasion
              on a Batson challenge rests with the party opposing the strike, the
              third step—determination of discrimination—is the “duty” of the
              trial judge. The trial court evaluates the persuasiveness of the
              step two justification at the third step. It is then that implausible
              or fantastic justifications may (and probably will) be found to be
              pretexts for purposeful discrimination. Also, at the third stage,
              the defendant may offer additional evidence to demonstrate that
              the proffered justification was pretextual.
              Upon appellate review, a trial court’s decision concerning
              whether a peremptory challenge is discriminatory is given great
              deference, and will be set aside only if found to be clearly
              erroneous.


      Cartwright v. State, 962 N.E.2d 1217, 1220-21 (Ind. 2012) (internal citation and

      quotation marks omitted).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1183 | February 18, 2019   Page 5 of 7
[8]    Here, Wooden challenges his conviction solely on the basis of the trial court’s

       overruling of his Batson challenge to the State’s peremptory strike of an African-

       American venireperson. Specifically, Wooden argues that the “State failed to

       present a sufficient race-neutral justification for the strike” of Prospective Juror

       #2. (Wooden’s Br. 7).


[9]    During jury selection, the State used its peremptory challenge to strike

       Prospective Juror #2. By pointing out that the State struck the sole African-

       American juror, Wooden put forth prima facie evidence of racial

       discrimination. Schumm v. State, 866 N.E.2d 781, 788-91 (Ind. Ct. App. 2007),

       opinion corrected on reh’g, 868 N.E.2d 1202 (Ind. Ct. App. 2007) (holding that the

       removal of the only prospective African-American juror by a peremptory

       challenge raised an inference of discrimination).


[10]   After Wooden established a prima facie case of racial discrimination, the trial

       court asked the State to put forth a race-neutral reason for excluding the juror.

       The State explained, that based on the prospective juror’s questionnaire and

       voir dire answers, it “felt the ambivalence or equivocation was a concern, and

       so for that reason we struck him.” (Tr. 84). The prospective juror’s equivocal

       answers were sufficiently race-neutral to allow for the peremptory challenge of

       the only African-American on the venire. See Highler v. State, 854 N.E.2d 823,

       827-28 (Ind. 2006) (declaring that prosecutor’s explanation that statements a

       juror had made in his questionnaire and during voir dire raised questions about

       juror’s ability “to be fair and impartial to the State” was facially race-neutral).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1183 | February 18, 2019   Page 6 of 7
[11]   After the State provided its reasoning for using the peremptory challenge, the

       trial court overruled Wooden’s objection and stated: “[w]hat I heard was a race

       neutral explanation . . . [.]” (Tr. 84). The trial court’s conclusion that the

       State’s reasons were not pretextual is essentially a finding of fact that turns

       substantially on credibility. It is therefore accorded great deference. Batson, 476

       U.S. at 98 n. 21. Accordingly, we conclude that the trial court’s rejection of

       Wooden’s Batson claim was not clearly erroneous.


[12]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1183 | February 18, 2019   Page 7 of 7
