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:

WILLIAM W. GOODEN                                  GREGORY F. ZOELLER
Mt. Vernon, Indiana                                Attorney General of Indiana

                                                   ANGELA N. SANCHEZ
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana

                                                                                 FILED
                                                                             Mar 14 2012, 9:32 am

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




WILLIAM JAMES HALL,                                )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )      No. 82A04-1107-CR-330
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                 APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                       The Honorable David Kiely, Special Judge
                            Cause No. 82C01-0906-FB-708

                                         March 14, 2012

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       William James Hall (“Hall”) was convicted in Vanderburgh Circuit Court of Class

B felony attempted rape, Class D felony residential entry, and Class D felony criminal

confinement. Hall appeals and presents the following two issues for our review:

       I.     Whether the trial court erred in denying Hall’s Batson challenge to the
              State’s use of a peremptory strike to remove an African-American juror;
              and

       II.    Whether the evidence was sufficient to prove that Hall committed the crime
              of attempted rape.

       We affirm.

                             Facts and Procedural History

       Hall and A.H. were in a relationship from 2001 until 2004. This relationship

produced a son, B.H., but the couple never married. Hall and A.H. had joint legal

custody of B.H., but A.H. was the physical custodian. On June 24, 2009, Hall met A.H.

and B.H. at a restaurant in Vanderburgh County. There, Hall and A.H. discussed Hall’s

plans to enlist in the Army and the impact that would have on Hall’s child support

obligation.

       Later that evening, Hall arrived unexpectedly at A.H.’s house and asked if he

could spend some extra time with B.H. A.H. agreed, and Hall visited his son at A.H.’s

house until approximately nine o’clock that night. After Hall left, A.H. put B.H. to bed

and went to bed herself at approximately ten o’clock.

       Sometime that night, Hall returned to A.H.’s house, entered through a window in a

back room, and came into A.H.’s bedroom. A.H. awoke to find Hall on top of her and

repeatedly asking where her phone was. Hall eventually found the phone and threw it on


                                            2
the floor. Hall held A.H.’s arm and told her to take off her “f**king clothes.” Tr. p. 171.

A.H. then screamed for her son, which prompted Hall to grab A.H.’s throat and put his

hands over her mouth. A.H. resisted Hall by hitting and kicking him, but Hall continued

to order her to remove her clothes. He also told A.H. “if he was . . . going to go to jail he

was going to go for something a hell [of] a lot better than child support.” Tr. p. 172. At

some point during the attack, Hall dropped unopened packages of condoms that he had

brought with him on the floor next to A.H.’s bed. Eventually, Hall stopped attacking A.H.

and ran toward the back room where he had entered. A.H. ran to B.H.’s room and held

her son. As she did so, Hall walked by the room and told A.H., “this isn’t over.” Tr. p.

173. A.H. then called the police and waited in her son’s room until they arrived.

        On June 25, 2009, the State charged Hall with Class B felony burglary, Class B

felony attempted rape, and Class D felony criminal confinement. A jury trial commenced

on September 9, 2010. During jury selection, the prosecuting attorney used one of its

peremptory challenges to strike potential juror J.H., who was the only African-American

on the jury panel.1 Hall objected to the prosecution’s peremptory challenge based on

Batson v. Kentucky, 476 U.S. 79 (1986). The prosecuting attorney then responded by

proffering a race-neutral reason for exercising its peremptory strike: “[J.H.] said he would

have a problem judging people, [and] he has a recent criminal record that may be pending

and I could [have] made an objection for cause but instead took him off peremptory[.]”2


1
  Hall asserted at trial that J.H. was the only African-American on the panel, and neither the State nor the
prosecuting attorney disputed this assertion.
2
   The prosecuting attorney also noted that “the defendant is not African American.” Tr. p. 69. This is
irrelevant to a Batson challenge. “[A] party may raise a Batson claim regardless of his or her race.”
                                                     3
Tr. p. 69. The trial court noted that the record did indicate that J.H. had a misdemeanor

charge pending against him and therefore overruled Hall’s Batson objection.

        The jury ultimately found Hall guilty as charged of Class B felony attempted rape

and Class D felony criminal confinement, but found him guilty of the lesser included

offense of Class D felony residential entry instead of Class B felony burglary. On June 8,

2011, the trial court sentenced Hall to concurrent terms of eight years on the attempted

rape conviction and eighteen months on the residential entry conviction. The trial court

“merged” the criminal confinement conviction with the attempted rape conviction and

did not impose sentence on that count. The trial court also suspended four years of Hall’s

aggregate eight-year sentence to home detention with GPS monitoring. Hall now appeals.

                                 I. Use of Peremptory Challenge

        Hall first claims that the trial court erred in overruling his Batson challenge to the

State’s use of a peremptory strike to remove an African-American from the jury panel.

Before addressing this argument, we first set forth the legal standards applicable to this

claim of error.

        A. Batson Analysis

        Our supreme court recently explained:

        Purposeful racial discrimination in selection of the venire violates a
        defendant’s right to equal protection because it denies him the protection

Schumm v. State, 866 N.E.2d 781, 789 (Ind. Ct. App. 2007), clarified on reh’g, 868 N.E.2d 1202 (citing
Powers v. Ohio, 499 U.S. 400, 415 (1991)). This is so because “racial discrimination in jury selection
casts doubt on the integrity of the judicial process,” and “[t]he overt wrong, often apparent to the entire
jury panel, casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the
law throughout the trial of the cause.” Powers, 499 U.S. at 411-12 (quotation omitted). Thus, “[c]lear
precedent and compelling rationale dictate that a party may not remove a potential juror based on his or
her race, regardless of the race of the opposing party[.]” Schumm, 866 N.E.2d at 789.

                                                    4
       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.

Addison v. State, 49S05-1105-CR-267, 2012 WL 560081 (Ind. Feb. 22, 2012), slip op. at

6 (citing Batson v. Kentucky, 476 U.S. 79, 86 (1986)); Snyder v. Louisiana, 552 U.S. 472,

478 (2008)) (internal quotation marks omitted).

       On the same day that our supreme court issued its opinion in Addison, it also

issued an opinion in Cartwright v. State, 82S01-1109-CR-564, 2012 WL 560086 (Ind.

Feb. 22, 2012), in which the court noted that “[p]ursuant 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.” Id., slip op. at 4.

       First, “‘a defendant must make a prima facie showing that a peremptory challenge

has been exercised on the basis of race[.]’” Id. (quoting Snyder, 552 U.S. at 476-77).

Using a peremptory strike to remove some African-American jurors does not, by itself,

raise an inference of racial discrimination. Addison, slip op. at 6 (citing Kent v. State,

675 N.E.2d 332, 340 (Ind. 1996)). But the removal of the only African-American juror

on the panel does raise an inference that the juror was excluded on the basis of race. Id.

(citing McCormick v. State, 803 N.E.2d 1108, 1111 (Ind. 2004); McCants v. State, 686

N.E.2d 1281, 1284 (Ind. 1997)).

       Second, once the defendant has made a prima facie case, the prosecution must

offer a “race-neutral basis for striking the juror in question[.]” Id. (citing Snyder, 552

U.S. at 476-77). An explanation is considered race-neutral if, on its face, it is based on

something other than race. Id. (citing Forrest v. State, 757 N.E.2d 1003, 1004 (Ind.

                                             5
2001)). “‘Unless a discriminatory intent is inherent in the prosecutor’s explanation, the

reason offered will be deemed race neutral.’” Addison, slip op. at 7 (quoting Purkett, 514

U.S. at 768). And 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.

       Lastly, in light of the parties’ submissions, the trial court must then determine

whether the defendant has shown purposeful discrimination. Id. 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 court judge. Id. (citing Jeter, 888

N.E.2d at 1264-65; Miller–El, 545 U.S. at 239). It is for the trial court to evaluate the

persuasiveness of the proffered race-neutral justification at the third and step of the

analysis. Id. “It is then that ‘implausible or fantastic justifications may (and probably

will) be found to be pretexts for purposeful discrimination.’” Cartwright, slip op. at 4

(quoting Purkett v. Elem, 514 U.S. 765, 768 (1995)). At this final step, the defendant

may offer additional evidence to demonstrate that the proffered justification was

pretextual. Id.

       Upon appellate review, we give great deference to the trial court’s decision

concerning whether a peremptory challenge is discriminatory, and the trial court’s

decision will be set aside only if it is clearly erroneous. Cartwright, slip op. at 4 (citing

Forrest, 757 N.E.2d at 1004; Miller–El v. Cockrell, 537 U.S. 322, 340 (2003)).

       B. Hall’s Argument

       Here, the State does not deny that the prosecuting attorney used a peremptory

strike to remove J.H., who was the only African-American in the jury pool. Thus, Hall

                                             6
successfully met his initial burden of establishing a prima facie case of racial

discrimination. See Addison, slip op. at 6; McCormick, 803 N.E.2d at 1111; McCants,

686 N.E.2d at 1284. The burden then shifted to the prosecuting attorney to offer a race-

neutral basis for striking J.H. Id. The prosecuting attorney here stated that J.H. had

indicated that he was uncomfortable judging others and that he had a pending criminal

charge against him. The trial court then confirmed that J.H. did have a misdemeanor

charge pending against him and overruled Hall’s Batson objection. Thus, the trial court

found that Hall had not established purposeful discrimination.

       Giving great deference to the trial court’s decision in this matter, we cannot say

that the court’s conclusion that Hall had not established purposeful discrimination was

clearly erroneous. There was nothing “implausible or fantastic” about the State’s stated

reason for striking J.H. that would indicate it was a pretext for purposeful discrimination.

See Addison, slip op. at 6; Purkett, 514 U.S. at 768. Instead, the State gave a valid race-

neutral explanation for its use of the peremptory challenge that the trial court accepted as

non-discriminatory.

       Hall claims that the State should have questioned J.H. further about whether his

pending charges would prevent him from performing his duties as a juror. But as the

State correctly notes, it did not strike J.H. for cause, but instead used a peremptory strike.

Unlike challenges for cause, a peremptory strike is “often exercised on ‘hunches’ and

impressions having to do, perhaps, with a prospective juror’s habits, associations, or ‘bare




                                              7
looks.’”3 Merritt v. State, 488 N.E.2d 340, 341 (Ind. 1986). A party is therefore given

broad discretion in its exercise of peremptory strikes and its reasons need not rise to the

level of a challenge for cause. Id. at 342.

       Under the facts and circumstances of the present case, we cannot say that the trial

court clearly erred in concluding that the State’s proffered race-neutral reason for striking

the only African-American juror on the panel was valid and that Hall had not

demonstrated purposeful discrimination.

                                II. Sufficiency of the Evidence

       Hall also claims that the State presented insufficient evidence to convict him of

attempted rape. Upon a challenge to the sufficiency of evidence to support a conviction,

we neither reweigh the evidence nor judge the credibility of the witnesses; instead, we

respect the exclusive province of the trier of fact to weigh any conflicting evidence.

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We consider only the probative

evidence and reasonable inferences supporting the verdict, and we will affirm if the

probative evidence and reasonable inferences drawn from the evidence could have

allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.

Id.

       To convict Hall of attempted rape, the State was required to show that he took a

substantial step toward the commission of the attempted crime of rape. Ind. Code § 35-

41-5-1 (2004) (“A person attempts to commit a crime when, acting with the culpability
3
   But, of course, a party may not base its peremptory strikes on impermissible reasons such as race,
ethnicity, or gender. Addison, slip op. at 6.



                                                 8
required for commission of the crime, he engages in conduct that constitutes a substantial

step toward commission of the crime.”). A person who knowingly or intentionally has

sexual intercourse with a member of the opposite sex when the other person is compelled

by force or imminent threat of force commits Class B felony rape. Ind. Code Ann. § 35-

42-4-1(a) (2004).

      A. Substantial Step

      Hall claims that his actions fall short of a “substantial step” towards the

commission of rape. We disagree. Hall emphasizes that he did not remove his clothes or

A.H.’s clothes. But we have held before:

      The fact that a defendant may not attempt to, or is ultimately unsuccessful
      in, removing his victim’s clothing, removing his own clothing, or removing
      his penis from his clothing does not lead to the conclusion that such
      defendant . . . did not take a substantial step toward committing the offense
      of rape.

Hughes v. State, 600 N.E.2d 130, 132 (Ind. Ct. App. 1992) (quoting Tatum v. State, 485

N.E.2d 138, 139 (Ind. Ct. App. 1985)). When determining whether the defendant took a

substantial step, our “proper analysis focuses on what the accused has completed, and not

upon what he has left undone.” Dillon v. State, 448 N.E.2d 21, 25 (Ind. 1983).

      Here, Hall climbed on top of A.H. while she slept, threw her phone onto the floor,

and demanded that she remove her clothing. He also stated that if he was going to go to

jail, it would be for something “better” than not paying child support. When A.H. called

to her son, Hall put his hands on her neck and covered her mouth with his hand. All the

while, A.H. resisted by kicking and hitting Hall. And when Hall left, he told A.H. that

“this isn’t over.” Tr. pp. 173-74. Moreover, Hall brought condoms with him and

                                            9
dropped some onto the bedroom floor during the attack.4 From this, the jury could

reasonably conclude that Hall took a substantial step toward the commission of the crime

of rape.     See Neice v. State, 421 N.E.2d 1109, 1111 (Ind. 1981) (concluding that

defendant took a substantial step toward attempted crime of rape where he neither

exposed his penis nor removed the underclothing of the intended victims); Tatum, 485

N.E.2d at 138 (concluding that evidence was sufficient to support attempted rape

conviction where defendant entered bedroom, sat down on bed of thirteen-year-old victim,

pushed her shoulders down, put his hand over her mouth, placed himself on top of her,

and ran from the room with his pants down after victim kicked him off).

        B. Abandonment

        Hall also claims that there was evidence that he abandoned his crime. Indiana

Code section 35-41-3-10 (2004) provides that “[w]ith respect to a charge . . . [of

attempt] . . . it is a defense that the person who engaged in the prohibited conduct

voluntarily abandoned his effort to commit the underlying crime and voluntarily

prevented its commission.” This section makes abandonment a legal defense to several


4
  In his reply brief, Hall notes that the jury acquitted him of Class B felony burglary and instead found
him guilty of the lesser included offense of Class D felony residential entry. The only difference between
these two crimes is the element of the intent to commit a felony. Compare Ind. Code § 35-43-2-1 (2004)
(defining Class B felony burglary as breaking and entering the dwelling of another person with the intent
to commit a felony therein) with Ind. Code § 35-43-2-1.5 (2004) (defining Class D felony residential
entry as breaking and entering the dwelling of another person). Hall therefore claims that “[o]ne can only
conclude from the guilty verdict on the included offense that the jury did not feel that bringing the
condoms to the victim’s home constituted a substantial step toward the crime of rape.” Appellant’s Reply
Br. at 3. Hall’s argument in this regard is essentially that the verdicts were inconsistent. But our supreme
court has held that “[j]ury verdicts in criminal cases are not subject to appellate review on grounds that
they are inconsistent, contradictory, or irreconcilable.” Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010).
Thus, the fact that the jury acquitted Hall of burglary and found him guilty of the lesser-included offense
of residential entry has no impact on our review of the sufficiency of the evidence to support his
conviction for attempted rape. See id. at 648-49.

                                                    10
inchoate crimes, including attempt. Munford v. State, 923 N.E.2d 11, 18 (Ind. Ct. App.

2010) (citing Smith v. State, 636 N.E.2d 124, 127 (Ind. 1994)). Where attempt is at issue,

the accused will be relieved of criminal responsibility if, subsequent to taking a

substantial step towards committing a crime but prior to its consummation, he voluntarily

abandoned his efforts. Id. “‘To be considered voluntary, the decision to abandon must

originate with the accused and not be the product of extrinsic factors that increase the

probability of detection or make more difficult the accomplishment of the criminal

purpose.’” Id. (quoting Smith, 636 N.E.2d at 127).

       Here, there was ample evidence that Hall did not abandon his crime voluntarily.

At trial, Hall never claimed that he abandoned his plan to rape A.H. Instead, he claimed

that he never touched her and that he only meant to scare her. Clearly, the jury did not

credit this version of events. The evidence favorable to the verdict indicates that Hall did

not complete the crime because of A.H.’s verbal and physical resistance to the crime. In

other words, the decision to abandon was the product of extrinsic factors that increased

the probability of detection and made it more difficult for him to accomplish his criminal

purpose; his plans were not “‘cut short by a change of heart, desertion of criminal

purpose, change of behavior, and rising revulsion for the harm intended.’” Munford v.

State, 923 N.E.2d 11, 15 (Ind. Ct. App. 2010) (quoting Sheckles v. State, 501 N.E.2d

1053, 1055 (Ind. 1986)).

                                       Conclusion

       The trial court did not clearly err in overruling Hall’s Batson objection to the

State’s use of a peremptory challenge to strike the only African-American juror on the

                                            11
panel, and the State presented sufficient evidence to support Hall’s conviction for

attempted rape.

      Affirmed.

FRIEDLANDER, J., and RILEY, J., concur.




                                        12
