                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                TAMANIKA LA KRIESE WHITE, Appellant.

                             No. 1 CA-CR 12-0570
                              FILED 08-05-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-007261-004
               The Honorable Kristin C. Hoffman, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Thomas K. Baird
Counsel for Appellant
                             STATE v. WHITE
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.


N O R R I S, Judge:

¶1            Appellant, Tamanika La Kriese White, appeals from her
conviction and sentence for attempt to commit sexual assault and sexual
assault. White argues the superior court should not have denied her
challenge based on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed.
2d 69 (1986), to the State’s peremptory strikes of male jurors. See J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 129, 114 S. Ct. 1419, 1421, 128 L. Ed. 2d 89
(1994) (Batson challenges extended to gender). We review the denial of a
Batson challenge for clear error. See State v. Medina, 232 Ariz. 391, 404,
¶ 43, 306 P.3d 48, 61 (2013). For the following reasons, we disagree with
White and affirm the superior court’s denial of White’s Batson challenge.

¶2            “A Batson challenge involves three steps: (1) The defendant
must make a prima facie showing of discrimination, (2) the prosecutor
must offer a [gender]-neutral reason for each strike, and (3) the trial court
must determine whether the challenger proved purposeful [gender]
discrimination.” Id. at ¶ 44 (quoting State v. Hardy, 230 Ariz. 281, 285,
¶ 12, 283 P.3d 12, 16 (2012)).

¶3            Here, the State used all six of its peremptory juror strikes to
dismiss male jurors. Following the State’s strikes, White made a timely
Batson challenge contending the State exercised its strikes in a gender-
discriminatory manner. The superior court implicitly found that White
had made a prima facie showing of discrimination by asking the State for
gender-neutral reasons for the strikes. After the State explained the basis
for the strikes, the superior court rejected White’s Batson challenge. The
superior court thus implicitly determined that White had not carried her
burden of proving purposeful gender discrimination.

¶4            White argues the superior court erroneously found the State
offered gender-neutral reasons for its peremptory strikes. We disagree.
“Unless a discriminatory intent is inherent in the [non-moving party’s]
explanation, the reason offered will be deemed” nondiscriminatory. Felder
v. Physiotherapy Assocs., 215 Ariz. 154, 168, ¶ 74, 158 P.3d 877, 891 (App.


                                       2
                            STATE v. WHITE
                           Decision of the Court

2007) (alteration in original) (applying rule in context of race-based Batson
challenge).     The reasons given by the State were not inherently
discriminatory, or “[i]mplausible or fantastic.” See id. at ¶ 75 (citation
omitted).

¶5            The State struck Juror 20 because it believed he had acted as
though he did not want to be there. At the beginning of the voir dire
process, Juror 20 initially claimed a work-scheduling hardship; but when
the court noted the juror’s company paid for juror service, he quickly
backed off his hardship claim.

¶6            The State struck Jurors 4, 38, and 42 because they had served
on prior juries in criminal cases that had found the defendant not guilty or
guilty of a lesser-included offense. Moreover, the State struck Juror 4
because his family members had been convicted of various crimes.

¶7            The State struck Juror 25 because he appeared to be
attempting to be comical. When asked if he was married, the juror said he
did not “have a husband or a wife,” and the prosecutor subsequently
indicated he could not tell whether the juror was joking or offering some
sort of “view of [] society.” And, the State struck Juror 26 because he had
been charged with possession of marijuana and burglary.

¶8            Finally, White argues that some of the stricken jurors had
similarities with non-stricken jurors. White, however, did not raise this
comparison analysis during voir dire. Both our supreme court and “the
United States Supreme Court ha[ve] warned that ‘a retrospective
comparison of jurors based on a cold appellate record may be very
misleading when alleged similarities were not raised at trial.’” Medina,
232 Ariz. at 404, ¶ 48, 306 P.3d at 61 (quoting Snyder v. Louisiana, 552 U.S.
472, 483, 128 S. Ct. 1203, 1211, 170 L. Ed. 2d 175 (2008)). Because White did
not raise this argument in the superior court, the State did not have an
opportunity to offer distinctions between similarly situated jurors.
Similarly, the superior court did not have an opportunity to compare the
jurors who were stricken with those who remained on the panel. Because
neither the State nor the superior court had an opportunity to compare
similarly situated jurors, we decline to engage in a comparison analysis
not raised during voir dire. See id. at 405, ¶ 49, 306 P.3d at 62.




                                     3
                          STATE v. WHITE
                         Decision of the Court

¶9            For the foregoing reasons, we affirm the superior court’s
rejection of White’s Batson challenge.




                                :gsh




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