Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                                     ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                               GREGORY F. ZOELLER
Marion County Public Defender                               Attorney General of Indiana
Indianapolis, Indiana
                                                            CYNTHIA L. PLOUGHE
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana

                                                                                    FILED
                               IN THE                                            Feb 04 2013, 9:23 am

                     COURT OF APPEALS OF INDIANA                                            CLERK
                                                                                          of the supreme court,
                                                                                          court of appeals and
                                                                                                 tax court




MOHAMED SESAY,                                      )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )   No. 49A02-1203-CR-190
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Becky Pierson-Treacy, Judge
                       The Honorable Shatrese M. Flowers, Commissioner
                              Cause No. 49F19-1109-CM-62975


                                         February 4, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                           Case Summary

          Mohamed Sesay (“Sesay”) was convicted after a jury trial of Public Intoxication, as a

Class B misdemeanor,1 and Disorderly Conduct, as a Class B misdemeanor.2 He now

appeals.

          We affirm.

                                                Issues

          Sesay raises two issues for our review, which we restate as:

          I.       Whether the trial court improperly denied his Batson challenge; and

          II.      Whether the trial court erred in giving Jury Instruction 25.

                                  Facts and Procedural History

          At approximately 3:30 a.m. on September 3, 2011, Officer Daniel Slightom (“Officer

Slightom”) of the Indianapolis Metropolitan Police Department arrived at 3433 Woodfront,

Apartment B, Indianapolis, in response to a complaint about a disturbance involving a man

knocking on doors and windows, possibly with a firearm. Upon his arrival, Officer Slightom

observed Sesay sitting in the driver’s seat of a car parked partly on the handicapped ramp in

front of the doorway to the apartment building. When Officer Slightom approached and

asked for Sesay’s name and information, he had difficulty understanding Sesay’s slurred

speech, and he observed Sesay fumble with his wallet. Officer Slightom smelled alcohol

emanating from Sesay, and observed signs of intoxication, so he had Sesay exit the vehicle


1
 Ind. Code § 7.1-5-1-3 (2011). The section was modified, effective July 1, 2012. We refer to the version
of the statute in force at the time of the alleged crime.
2
    I.C. § 35-45-1-3.

                                                   2
and handcuffed him. Officer Slightom, who by then had been joined by another police

officer, placed Sesay under arrest for public intoxication. Sesay became belligerent, and

continued talking, but Officer Slightom still could not understand him. Sesay began yelling

at the officers, and continued to yell even after repeated requests for him to be quiet because

of the early hour, eventually attracting attention from neighbors looking out of their

windows.

       On September 3, 2011, the State charged Sesay with Public Intoxication, as a Class B

misdemeanor, and Disorderly Conduct, as a Class B misdemeanor. A jury trial was

conducted on February 16, 2012.

       During voir dire, the State asked the potential jurors if eyewitness testimony from one

police officer would be enough to convict Sesay. Venireperson Benson, an African-

American, responded: “Well, it[’]s just like [venireperson Witka] says. He says we don’t—I

wasn’t personally there. So you know, so anyone could be saying something to have

everybody—us jurors on their side.” (Tr. at 169-70.) When asked by Sesay during voir dire

what kind of evidence would be necessary to convict him of public intoxication, Benson

responded: “Anybody can say—like I said earlier, anybody can say anything. But if there’s

been no actual evidence (inaudible).” (Tr. at 184.) In response to the same question,

venireperson Jackson, a Caucasian stated: “There would have to be sufficient evidence to

really prove [the] person to be guilty[,] . . . [and] [b]lood alcohol would be one. You know if

a person didn’t do a blood alcohol [test], if they refuse and then how that transpired then.”

(Tr. at 184-85.)


                                              3
          The State exercised peremptory strikes to dismiss Benson and Long, the remaining

two African-American venirepersons. Sesay challenged the State’s dismissal of Benson and

Long under Batson.3 The State explained: “[Venireperson] Benson indicated that he would

need more than testimony to convict. [Venireperson] Long indicated . . . that her compassion

would not allow her to be fair.” (Tr. at 204.) Sesay then responded that Benson, when asked

if he’d give more credit to the testimony of either Officer Slightom or Sesay, said he would

give “both of them a clean slate” and that Benson had not said he would give Sesay’s

testimony more credibility than that of Officer Slightom. (Tr. at 204-05.) The trial court

denied Sesay’s Batson challenge as to both Benson and Long.4

          At the conclusion of the trial, the jury found Sesay guilty of all counts as charged, and

the trial court entered judgments of conviction. The court sentenced Sesay to 180 days

imprisonment for each count, with 160 days of each prison term suspended to probation, and

ran the sentences concurrently for an aggregate sentence of 180 days imprisonment, with 160

days suspended to probation.

          Sesay now appeals.

                                        Discussion and Decision

                                            Batson Challenge

          Sesay contends the trial court erred when it permitted the State’s use of peremptory

strikes to remove from the jury venire the remaining two African-American venirepersons,

3
    See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
4
 Sesay does not develop argument regarding why a peremptory strike was improper as to Long, therefore
we address only his argument regarding why a peremptory strike was improper as to Benson. See Ind.
App. Rule 46A(8)(a).

                                                      4
Benson and Long.5

        In prosecutions for offenses other than murder, the State may use as many as five

peremptory strikes to exclude venirepersons from the jury. Ind. Code §§ 35-37-1-3(c) & 35-

37-1-4. In general, a peremptory strike may be exercised for no cause whatsoever.

Thompson v. State, 966 N.E.2d 112, 120 (Ind. Ct. App. 2012), trans. denied. However,

peremptory strikes may not be used to exclude venirepersons from a jury solely on the basis

of race. Id. (citing Batson, 476 U.S. at 79, 106 S. Ct. at 1712, 90 L. Ed. 2d at 69). We apply

a three-step test to determine whether the State has improperly used a peremptory strike to

remove a potential juror from the venire solely because of that individual’s race:

        First, the party contesting the use of a peremptory [strike] must make a prima facie
        showing of discrimination based upon race against the member of the venire. Next,
        the party using a peremptory [strike] may present a race-neutral explanation for using
        the [strike]. If the party seeking to strike a member of the venire provides a race-
        neutral explanation, the trial court must then decide whether the challenger has carried
        its burden of proving purposeful discrimination.

Id. (internal quotation marks and citations omitted).

        We afford broad latitude to the trial court’s decision concerning Batson challenges

because of the importance of the demeanor of potential jurors and the prosecutor in

evaluating a race-neutral explanation for a peremptory strike. Id. Therefore we reverse only

where the trial court’s decision is clearly erroneous. Id. However, courts need not accept

any facially neutral reason for striking a potential juror, and courts should consider all


5
  The State contends that Sesay’s challenge on appeal of the State’s removal of Benson and Long differs
from the challenge he raised at trial, and that therefore Sesay’s challenge should be reviewed under the
more stringent fundamental error standard. However, Sesay’s challenge before the trial court and his
challenge now on appeal are sufficiently similar to allow review. See Grimes v. State, 633 N.E.2d 262,
264 (Ind. Ct. App. 1994).

                                                    5
relevant circumstances in assessing Batson-challenged peremptory strikes. Killebrew v.

State, 925 N.E.2d 399, 401 (Ind. Ct. App. 2010), trans. denied. If a prosecutor’s proffered

reason for striking an African-American prospective juror applies just as well to an

otherwise-similar non-African-American who is permitted to serve, that is evidence tending

to prove purposeful discrimination to be considered at the third step of a Batson inquiry.

Addison v. State, 962 N.E.2d 1202, 1210 (Ind. 2012).               Even a single instance of

discrimination because of a venireperson’s race is a ground for reversal where a trial court

erroneously rejects a Batson challenge. Thompson, 966 N.E.2d at 120.

       The burden is low at the first stage of a Batson inquiry. Addison, 962 N.E.2d at 1208.

The defendant need only show circumstances raising an inference that discrimination

occurred. Id. While the removal of some African-American venirepersons by use of

peremptory strikes does not, by itself, raise an inference of racial discrimination, “the

removal of the only African[-]American juror [who] could have served on the petit jury does

raise an inference that the juror was excluded on the basis of race.” Id. at 1208-09 (internal

quotation marks and citations omitted).

       Here, the only two remaining African-American venirepersons were stricken

peremptorily by the State. This established a prima facie showing of discrimination based

upon race. See Thompson, 966 N.E.2d at 120; Addison, 962 N.E.2d at 1208.

       If the first stage showing has been satisfied, the burden at the second stage shifts to the

prosecution, which must offer a race-neutral basis for striking the potential juror in question.

Addison, 962 N.E.2d at 1209 (internal quotation marks omitted). Unless a discriminatory


                                                6
intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-

neutral. Id. Although the race-neutral reason must be more than a mere denial of improper

motive, the reason need not be particularly persuasive, or even plausible. Id.

       Here, the State explained that it exercised its peremptory strikes of Benson and Long

because Benson indicated that he would need more than mere testimony to convict Sesay,

and Long indicated that her compassion would not allow her to be fair. The State thus

carried its burden of offering a race-neutral reason for striking venirepersons Benson and

Long. See Addison, 962 N.E.2d at 1209.

       At the third and last stage of a Batson inquiry, the trial court must determine whether

the defendant has shown purposeful discrimination in light of the parties’ submissions. Id. at

1209-10. Although the party opposing the strike bears the burden of persuasion in a Batson

challenge, the third step is the duty of the trial judge, and the trial court must evaluate the

persuasiveness of the State’s justification. Id. at 1210. The issue is essentially whether the

trial court finds the prosecutor’s race-neutral explanation credible. Id.

       Here, in response to the State’s explanation, Sesay stated that Benson, when asked if

he’d give more credit to the testimony of either Officer Slightom or Sesay, said he would

give “both of them a clean slate” and that Benson had not said he would give Sesay’s

testimony more credibility than that of Officer Slightom. (Tr. at 204-05.) The trial court

then denied Sesay’s Batson challenge, effectively finding the State’s explanation more

persuasive than Sesay’s. See Addison, 962 N.E.2d at 1210.

       Sesay argues that the State’s proffered reason for striking Benson applied just as well


                                              7
to Jackson, an otherwise-similar non-African-American venireperson who was permitted to

serve, thus tending to prove purposeful discrimination. See id. However, the statements of

Benson and Jackson differ. Benson’s statement implied that testimony alone was not “actual

evidence,” and that he would need more than mere testimony to convict Sesay of public

intoxication. (Tr. at 184.) In contrast, while Jackson implied that for him physical evidence

would be sufficient to prove a person guilty of public intoxication, he did not suggest that

witness testimony alone would be insufficient for him to convict.

       In view of the differences between the statements of Benson and Jackson, and in

deference to the trial court’s ability to discern the demeanor of potential jurors and the

prosecutor in evaluating a race-neutral explanation for a peremptory strike, we cannot

conclude that the trial court erred when it permitted the State to use peremptory strikes to

remove Benson and Long from the venire.

                                     Jury Instruction 25

       Sesay next contends that the trial court abused its discretion by giving Final

Instruction 25. The instruction, which Sesay also challenged at trial, provides:

       With respect to the sufficiency of the evidence upon the element of intoxication, for
       purposes of the offense of public intoxication, non-expert witnesses may offer
       opinions about intoxication, and the defendant’s conviction may be sustained upon
       sole [sic] the testimony of the arresting officer.

(App. at 78.)

       “The purpose of a jury instruction is to inform the jury of the law applicable to the

facts without misleading the jury and to enable it to comprehend the case clearly and arrive at

a just, fair, and correct verdict.” Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (internal

                                              8
quotation marks omitted). In reviewing a trial court’s decision to give or refuse tendered jury

instructions, we consider: (1) whether the instruction correctly states the law; (2) whether

there is evidence in the record to support the giving of the instruction; and (3) whether the

substance of the tendered instruction is covered by other instructions. Springer v. State, 798

N.E.2d 431, 433 (Ind. 2003). Jury instruction is a matter assigned to trial court discretion,

and an abuse of that discretion occurs when instructions, taken as a whole, mislead the jury

as to the applicable law. Ham v. State, 826 N.E.2d 640, 641 (Ind. 2005). However, before a

defendant is entitled to a reversal, he must affirmatively show that the erroneous jury

instruction prejudiced his substantial rights. See Ind. Trial Rule 61; Snell v. State, 866

N.E.2d 392, 396 (Ind. Ct. App. 2007).

       In Ludy v. State, the Indiana Supreme Court held that the trial court erred in

instructing the jury that “[a] conviction may be based solely on the uncorroborated testimony

of the alleged victim if such testimony establishes each element of any crime charged beyond

a reasonable doubt.” 784 N.E.2d 459, 460 (Ind. 2003). In particular, the challenged

instruction was erroneous because it: (1) unfairly highlighted a single witness’s testimony;

(2) presented an appellate standard of review irrelevant to a jury’s function as fact-finder; and

(3) possibly confused the jury by using the technical term “uncorroborated.” Id. at 461.

Sesay contends that Final Instruction 25 was misleading, and thus an abuse of discretion

under Ludy because it: (1) unfairly highlighted a single witness’s testimony; and (2)

presented an appellate standard of review irrelevant to a jury’s function as fact-finder. See

id.


                                               9
       The courts of this State have long disapproved instructions that unduly “emphasize

one particular evidentiary fact, witness, or phase of the case.” Ham, 826 N.E.2d at 641-42;

see, e.g., Ludy, 784 N.E.2d at 459 (“[t]o expressly direct a jury that it may find guilt based on

the uncorroborated testimony of a single person is to invite it to violate its obligation to

consider all the evidence[]”); Dill, 741 N.E.2d at 1232-33 (“although evidence of flight may,

under appropriate circumstances, be relevant, admissible, and a proper subject for counsel’s

closing argument, it does not follow that a trial court should give a discrete instruction

highlighting such evidence[]”).

       Here, Final Instruction 25 states that “the defendant’s conviction may be sustained

upon sole [sic] the testimony of the arresting officer.” (App. at 78.) This language is

problematic because it focuses the jury’s attention on and highlights the testimony of Officer

Slightom, inviting the jury to ignore its obligation to “consider all the evidence presented at

trial.” Ludy, 784 N.E.2d at 461 (emphasis in original).

       While there is no blanket prohibition against the use of appellate decision language in

jury instructions, the preferred practice is to use the pattern jury instructions. Gravens v.

State, 836 N.E.2d 490, 494 (Ind. Ct. App. 2005), trans. denied. This is true especially

because the mere fact that certain language or expressions are used in the opinions of

Indiana’s appellate courts does not make such language proper for instructions to a jury. Id.

Appellate language “may be confusing or misleading to the [jury] panel members[,] and . . .

may be irrelevant to the jury’s duties as fact-finder.” Bayes v. State, 791 N.E.2d 263, 265

(Ind. Ct. App. 2003), trans. denied.


                                               10
       Here, the language of Final Instruction 25 closely follows the language of Wright v.

State, in which we addressed a sufficiency of the evidence claim. 772 N.E.2d 449, 460 (Ind.

Ct. App. 2002) (“[w]ith respect to the sufficiency of the evidence upon the element of

intoxication, it is established that a non-expert witness may offer an opinion upon

intoxication, and a conviction may be sustained upon the sole testimony of the arresting

officer[]”). In essence, the trial court “informed the jury that if it convicted [Sesay] . . . based

only on the testimony of . . . [Officer Slightom], that conviction would likely be upheld on

appeal.” Gravens, 836 N.E.2d at 496. This presentation of an appellate standard of review

was irrelevant to the jury’s role as fact-finder, and thus was error.

       Having concluded that the trial court erred in giving Final Instruction 25, we must

determine whether the instruction prejudiced Sesay’s substantial rights. See Snell, 866

N.E.2d at 396. Errors in the giving or refusing of instructions are harmless where a

conviction is clearly sustained by the evidence and the instruction would not likely have

impacted the jury’s verdict. Randolph v. State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004),

trans. denied.

       Here, Sesay’s convictions are clearly sustained by the evidence. Officer Slightom

testified that when he first encountered Sesay, he smelled alcohol emanating from Sesay and

observed signs of intoxication, such as slurred speech and Sesay fumbling for his wallet

when asked for it. The evidence is sufficient to sustain Sesay’s conviction for Public

Intoxication, as a Class B misdemeanor. See I.C. § 7.1-5-1-3 (2011); Wright, 772 N.E.2d at

460 (“[w]ith respect to the sufficiency of the evidence upon the element of intoxication, it is


                                                11
established that a non-expert witness may offer an opinion upon intoxication, and a

conviction may be sustained upon the sole testimony of the arresting officer[]”).

       Additionally, Officer Slightom testified that Sesay eventually became belligerent and

yelled, even after repeated requests for him to be quiet because of the early hour, to the point

where he attracted the attention of neighbors looking out of their windows. The evidence is

thus also sufficient to sustain Sesay’s conviction for Disorderly Conduct, as a Class B

Misdemeanor. See I.C. § 35-45-1-3; Blackman v. State, 868 N.E.2d 579, 584 (Ind. Ct. App.

2007) (“[t]o support a conviction for disorderly conduct, the State must prove that a

defendant produced decibels of sound that were too loud for the circumstances[]”), trans.

denied.

       Furthermore, it is unlikely the instruction impacted the jury’s verdict.             Both

Preliminary Instruction 16—incorporated in the final instructions—and Final instruction 26

advised the jury that they were the exclusive judges of the evidence, that they were the judges

of the credibility of the witnesses and the weight to be given to their testimony, and that they

should not disregard the testimony of any witness without due consideration and without just

cause, but that they were to decide who to believe and who to disbelieve. (App. at 60, 79.)

       The giving of Final Instruction 25 was erroneous because, although a correct

statement of an appellate standard of review, the instruction did not assist the jury in its fact-

finding role. However, Sesay’s convictions were clearly supported by the evidence, and it is

unlikely the instruction impacted the jury’s verdict. Therefore, the giving of Final Instruction

25 was harmless error.


                                               12
                                         Conclusion

         The trial court did not err when it permitted the State to use peremptory strikes to

remove Benson and Long from the venire. The giving of Final Instruction 25 was harmless

error.

         Affirmed.

VAIDIK, J., and BROWN, J., concur.




                                              13
