[Cite as State v. Strong, 2014-Ohio-4206.]




                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 100699



                                        STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                         DANA STRONG
                                                     DEFENDANT-APPELLANT




                                     JUDGMENT:
                               REVERSED AND REMANDED


                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-13-574995-A

        BEFORE: E.A. Gallagher, J., Boyle, A.J., and Rocco, J.

        RELEASED AND JOURNALIZED: September 25, 2014
ATTORNEY FOR APPELLANT

Robert A. Dixon
4403 St. Clair Avenue
Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: John Patrick Colan
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Defendant-appellant Dana Strong appeals his convictions from the Cuyahoga

County Court of Common Pleas. For the following reasons, we reverse.

       {¶2} On June 11, 2013, appellant was charged in a five-count indictment with two

counts of felonious assault, two counts of aggravated robbery, and one count of theft.

Strong plead not guilty to all charges and the case proceeded to a jury trial.

       {¶3} The facts of this case are that, on June 1, 2013, Strong entered the Unique

Thrift Store at 3333 Lorain Avenue in Cleveland, Ohio.                 He was in the store

approximately nine hours, during which time store employees noticed that the layers of

clothing he was wearing were increasing.        When Strong attempted to purchase a used

book bag, he was confronted by Carlos Thompson, a store security guard. Thompson

observed Strong wearing a shirt that had a price tag attached and asked him to go to the

back of the store.

       {¶4} During that confrontation, Strong removed a knife from his pocket and

attempted to flee the store.   Thompson reached out to take hold of Strong’s left arm and,

as Strong moved past Thompson, he slashed at Thompson’s left arm several times with his

right hand which acts were recorded by several security cameras in the store.     Strong then

ran into a line of shopping carts before fleeing from the store.      As a result of the knife

swipes, Thompson sustained injuries to his arm and finger necessitating 19 stitches and

resulting in pain lasting for two to three weeks.

       {¶5} Strong testified at trial that he felt that Thompson was “a loose cannon” and

that he brandished the knife toward him in order to “halt [Thompson’s] advance.”
Strong’s account was not supported by the security footage of the event.

       {¶6} The jury returned a verdict of guilty on both counts of felonious assault and not

guilty on the remaining charges. At sentencing, the trial court merged the two counts of

felonious assault and imposed a prison term of two years. Strong appeals and his first

assignment of error provides:

       The failure to instruct the jury on the lesser included offense of simple assault
       pursuant to R.C. 2903.13 (B) denied the appellant his federal and state
       constitutional rights to trial by jury and due process guaranteed by the sixth
       and fourteenth amendments as well as by Article I, Section 10 of the Ohio
       Constitution.

       {¶7} A charge on a lesser included offense is only required where the evidence

presented at trial would reasonably support both an acquittal on the crime charged and a

conviction upon the lesser included offense.      State v. Collins, 8th Dist. Cuyahoga No.

95415, 2011-Ohio-3241, ¶ 35, citing State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286

(9th Dist.1988). The court must view the evidence in the light most favorable to the

defendant when deciding whether to instruct the jury on a lesser included offense. State v.

Campbell, 69 Ohio St.3d 38, 1994-Ohio-492, 630 N.E.2d 339. An instruction is not

warranted, however, every time “some evidence is presented on a lesser included offense.”

 State v. Smith, 8th Dist. Cuyahoga No. 90478, 2009-Ohio-2244, ¶ 12, citing State v.

Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992).

       {¶8} A trial court has discretion in determining whether the record contains

sufficient evidentiary support to warrant a jury instruction on a lesser included offense; we

will not reverse that determination absent an abuse of discretion. State v. Henderson, 8th

Dist. Cuyahoga No. 89377, 2008-Ohio-1631, ¶ 10, citing State v. Wright, 4th Dist. Scioto
No. 01 CA2781, 2002-Ohio-1462.

      {¶9} Assault under R.C. 2903.13(A) is a lesser included offense of         felonious

assault under R.C. 2903.13.        State v. Addison, 8th Dist. Cuyahoga No. 96514,

2012-Ohio-260, ¶       34, citing State v. Caster, 8th Dist. Cuyahoga No. 87783,

2006-Ohio-6594.

      {¶10} Strong argues that a jury could have reasonably found that his actions, which

resulted in serious physical harm to the victim, were reckless as required by R.C.

2903.13(B), rather than knowingly as required by R.C. 2903.11(A) and, therefore, he was

entitled to an instruction on the lesser included offense. We disagree.

      {¶11} Strong testified that he removed the knife from his pocket because the victim

was “a loose cannon” and that he brandished the knife while telling the victim not to

advance toward him.    Even if we accepted Strong’s self-serving account of the event, his

testimony clearly demonstrated that he knowingly introduced the knife into the situation as

a weapon.    Furthermore, security camera footage from the scene of the incident shows

Strong making deliberate slashing motions with his right arm, toward the victim’s left arm

on two occasions. These actions, and Strong’s own testimony, are wholly inconsistent

with the notion that Strong acted in any way other than knowingly. A jury could not have

reasonably found that Strong acted recklessly in this instance and, as such, he was not

entitled to a lesser included offense instruction. Strong’s first assignment of error is

overruled.

      {¶12} Strong’s second assignment of error states:

      The appellant was denied equal protection of law pursuant to the fourteenth
      amendment to the United States Constitution due to purposeful racial

      discrimination by the state in the jury selection process and failure of the trial

      court to follow applicable law.

      {¶13} In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the

United States Supreme Court recognized that the Equal Protection Clause of the United

States Constitution prohibits the use of peremptory challenges in a discriminatory manner to

exclude potential jurors solely on account of their race. Id. at 89; see also State v.

Hernandez, 63 Ohio St.3d 577, 581, 589 N.E.2d 1310 (1992).

       {¶14} There are three steps involved in adjudicating a Batson claim. First, the

opponent of the peremptory challenge must make a prima facie case of racial

discrimination. Second, if the trial court finds this requirement fulfilled, the proponent of

the challenge must provide a racially neutral explanation for the challenge. However the

“explanation need not rise to the level justifying exercise of a challenge for cause.”

Finally, the trial court must decide based on all the circumstances, whether the opponent

has proved purposeful racial discrimination.    Batson at 96-98.    See also Purkett v. Elem,

514 U.S. 765, 767-768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). A trial court’s finding of

no discriminatory intent will not be reversed on appeal unless clearly erroneous. State v.

Hernandez, 63 Ohio St.3d 577, 583, 589 N.E.2d 1310 (1992), following Hernandez v.

New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

       {¶15} The record reflects that the jury panel consisted of 22 people of whom only

two were African-Americans.      Counsel for appellant objected to the compilation of the

panel as being non-representative of the community. That objection was overruled.
       {¶16} After counsel and the court conducted voir dire, the state moved to exercise a

peremptory challenge of one of the two African-American jurors without posing any

questions to him.      This particular juror, upon questioning by defense counsel, was

appropriately responsive and articulate.

       {¶17} Strong objected to the state’s peremptory strike of that juror and the trial court

asked the state to provide its reasoning, to which the state responded:

       I don’t know if you have been able to observe his demeanor. He’s back in
       the corner, but it’s a little concerning to me. He has an extremely
       wide-eyed look, like he has a thousand-yard stare, and I have concerns that
       he will be able to pay attention.

       {¶18}    The trial court noted that it had not observed conduct by the juror consistent

with the state’s description but nonetheless accepted the challenge and overruled the

objection without any further inquiry into the matter.

       {¶19} This court has previously explained that in the third step of the Batson

analysis, “the 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.” State v. Hudson, 8th Dist. Cuyahoga No. 96986, 2012-Ohio-1345, ¶

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

“[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.” Frazier at ¶ 65, quoting Miller-El v. Dretke, 545 U.S.

231, 251-252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).

       {¶20} In the case before us, we are deeply troubled by both the state’s proffered

reason for the peremptory strike     and the lack of inquiry into the matter by the trial court in
light of its admission that it had not observed the supposed inattentiveness of the juror.

The state’s dubious explanation for its peremptory challenge —       that based solely on the

“wide-eyed” look on the juror’s face,      the juror could not be attentive — essentially

amounts to an expression of displeasure with the physical characteristics of the juror.    We

find this explanation to be both offensive and disconcerting.           Our interpretation is

bolstered by the prosecutor’s failure to make any inquiry of the juror before concluding the

juror could not be attentive solely due to his appearance.

       {¶21} The state cites this court’s decision in State v. Brown, 8th Dist. Cuyahoga

No. 84059, 2004-Ohio-6862, for the proposition that body language and demeanor are

“permissible race-neutral justifications for the exercise of a peremptory challenge.”       In

Brown, the state sought to dismiss a juror whose body language gave it the impression

that he “doesn’t like this case, he doesn’t want to be here.” Id. at ¶ 26.      We noted that

passivity, inattentiveness, or inability to relate to other jurors are valid, race-neutral

explanations for excluding jurors,    such reasons for striking a juror are subjective, and

thus virtually impossible for this court to review on appeal. Id. at ¶ 26.      However, we

further cautioned:

       This is not to say that any dismissal on grounds of body language is
       essentially unreviewable. The potential for abuse is always present and the
       courts have the obligation to state adequate reasons on the record for
       denying challenges under those circumstances. However, the attorneys must
       take steps to “develop the record concerning the specific behavior by venire
       members that motivated the peremptory challenge * * *”

Id. at 29.

       {¶22} Here, both the trial court and the state failed to sufficiently develop the record

or appropriately inquire into the concerns regarding this juror.      In fact, it was not the
juror’s body language that was being questioned but his physical appearance. “[T]he state’s

failure to engage in any meaningful voir dire examination on a subject the state alleges it is

concerned about is evidence suggesting that the explanation is a sham and a pretext for

discrimination.” Miller-El v. Dretke, 545 U.S. 231, 246, 125 S.Ct. 2317, 162 L.Ed.2d 196

(2005), quoting Ex parte Travis, 776 So.2d 874, 881 (Ala. 2000).

       {¶23} Even ignoring the lack of questioning on the matter by the state, the record is

clear that the trial court failed to appropriately evaluate the context of the proffered

reasoning under the third step of Batson. To the extent that the record touches upon this

particular juror at all, it refutes the state’s contentions. Prior to the peremptory challenge

both the trial judge and Strong’s attorney questioned the subject juror during voir dire.

Such inquiry raised no concerns by the judge or Strong’s counsel. In fact, the juror

expressly indicated that he possessed no reservations about his ability to serve as a juror

and represented that he would listen and pay close attention to the testimony.            His

responses were appropriate and articulate.

       {¶24} On these facts we find that the trial court’s decision to overrule Strong’s

objection to the peremptory challenge was clearly erroneous.

       {¶25} Strong’s second assignment of error is sustained.

       {¶26} Strong’s third assignment of error is moot.

       {¶27} We note that a reversal under Batson “does not mean that a guilty defendant

must go free. For indictments can be returned and convictions can be obtained by juries

selected as the Constitution commands.” Patton v. Mississippi, 332 U.S. 463, 469, 68

S.Ct. 184, 92 L.Ed. 76 (1947), citing Hill v. Texas, 316 U.S. 400, 406, 62 S.Ct. 1159, 86
L.Ed. 1559 (1942);    State v. Russell, 2d Dist. Montgomery No. 25467, 2013-Ohio-5166, ¶

6; Winston v. Boatwright, 649 F.3d 618 (7th Cir. 2011) (“[W]hen a violation of equal

protection in jury selection has been proven, the remedy is a new trial, without the need for

any inquiry into harmless error or examination of the empaneled jury.”)

       {¶28} The judgment of the trial court is reversed and remanded for further

proceedings consistent with this opinion.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., CONCURS;
KENNETH A. ROCCO, J., CONCURS IN PART AND DISSENTS IN PART (SEE
ATTACHED OPINION)


KENNETH A. ROCCO, J., CONCURRING IN PART AND DISSENTING IN PART:

       {¶29} While I concur with the majority opinion’s disposition of Strong’s first

assignment of error, I respectfully dissent from the majority opinion’s disposition of

Strong’s second assignment of error. I would overrule it and, based upon my belief that

Strong’s third assignment of error also lacks merit, I would affirm his convictions.

       {¶30} In his second assignment of error, Strong asserts that the trial court acted
       improperly in rejecting his argument during voir dire, made pursuant to Batson v. Kentucky,

       476 U.S. 79 (1986), that the state was impermissibly excluding black jurors from serving at

       his trial. In my review of the record, I find this assertion groundless.

              {¶31} In order to make a successful Batson claim, Strong was required first to

       establish “a prima facie case of discrimination.” The state was not responsible for the fact

       that the jury panel consisted of only two African-Americans.

              {¶32} Moreover, the state used one peremptory strike to excuse Juror No. 20 from

       service. One peremptory strike does not create an inference of purposeful exclusion on

       account of race. Hicks v. Westinghouse Materials Co., 78 Ohio St.3d 95, 99, 676 N.E.2d

       872 (1997).

              {¶33} The Supreme Court further stated the following in Hicks:

               Review of a Batson claim largely hinges on issues of credibility. Accordingly, we
       ordinarily defer to the findings of the trial court. See Batson at 98, 106 S. Ct. at 1724, 90 L.
       Ed. 2d at 89, fn. 21. Whether a party intended to racially discriminate in challenging
       potential jurors is a question of fact, and in the absence of clear error, we will not reverse
       the trial court’s determination. Hernandez v. New York, 500 U.S. at 369, 111 S. Ct. at
       1871, 114 L. Ed. 2d at 412; State v. Hernandez, 63 Ohio St.3d at 583, 589 N.E.2d at 1314.
       Trial judges, in supervising voir dire, are best equipped to resolve discrimination claims in
       jury selection, because those issues turn largely on evaluations of credibility. See Batson at
       98, 106 S. Ct. at 1724, 90 L. Ed. 2d at 89, fn. 21.

      {¶34} In this case, the state offered a race-neutral explanation, i.e., that the juror exhibited a

demeanor that included a “thousand yard stare.” That term is perhaps unfamiliar to many people, but,

according to the Oxford Dictionaries, means “a vacant or unfocused gaze into the distance, seen as

characteristic of a war-weary or traumatized soldier.” See www.oxforddictionaries.com/us/definitions.

(Accessed September 10, 2014.)

      {¶35} Jury selection is a lengthy process, as is a trial. When defense counsel protested about the
prosecutor’s peremptory strike, the prosecutor presented a race-neutral reason; he was concerned that the

juror “will be able to pay attention” throughout the proceeding. Such a concern would have been proper

if defense counsel had expressed it, as well.

       {¶36} The majority opinion faults the trial court for focusing on each individual as he or she was

questioned, but counsel had the opportunity to watch the other potential members of the panel during the

voir dire. Under the circumstances presented in this case, I believe that the trial court acted within its

prerogative to assess the prosecutor’s credibility and accept that explanation. This court should not

second guess the trial court’s decision. Therefore, I would overrule Strong’s second assignment of error.

       {¶37} In addition, as outlined by the majority opinion’s description of the facts of the case, I

believe the manifest weight of the evidence also supports Strong’s convictions. I would accordingly

affirm them.
