       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                           DIVISION ONE

THE STATE OF WASHINGTON,                          No. 74833-5-1

                        Respondent,

                V.                               UNPUBLISHED OPINION

DAVID M BURCH,

                        Appellant.               FILED: November 27, 2017

       SCHINDLER, J. — A jury convicted David M. Burch of theft in the first

degree and assault in the fourth degree. Burch seeks reversal, arguing the trial

court erred in rejecting his peremptory challenge to strike an African American

juror. Burch claims there was no prima facie showing of discrimination under

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69(1986). But

where, as here, the proponent of a peremptory challenge offers a race-neutral

explanation and the court rules on racial motivation, a prima facie showing is

moot. Burch also claims the court erred in rejecting his justifications for

exercising a peremptory challenge to strike the African American juror. Because

the decision to reject the justifications to excuse the peremptory challenge is not

clearly erroneous, we affirm.
_   No. 74833-5-1/2

    Voir Dire

           The State charged David M. Burch, a white male, with theft in the first

    degree in violation of RCW 9A.56.030(1)(b) and .020(1)(a) and assault in the

    fourth degree in violation of RCW 9A.36.041. Burch entered a plea of not guilty.

           The trial began on February 23, 2016. Before jury selection, the court

    addressed the procedure for challenges for cause and peremptory challenges.

    The court explained that at the conclusion of voir dire, the court would excuse the

    jury panel to allow the parties to exercise for-cause and peremptory challenges

    on the record. The court stated:

           I keep an eye on the jurors. ...
                  . . . [I]f I see somebody that's clearly from a minority group,
           okay, and I don't see a basis for you to exercise a peremptory
           against them and then you do, I'm probably going to ask you about
           that.

    The court told the attorneys that the parties would need to present "a really good

    reason that. .. I observed as to why that person is leaving us, and if I don't hear

    it, we'll keep them." Neither the State nor the defense objected to the procedure

    for peremptory challenges.

           At the beginning of voir dire, the court asked each member of the jury

    panel a number of general biographical questions, including the occupation of a

    spouse, the juror's involvement in "any club or organization," "any hobbies or

    favorite recreational activities," and news sources.

           Prospective "Juror 15" was an African American female. In response to

    the general questions, Juror 15 stated she lives in Kirkland with her spouse, her

    spouse is a project manager with an investment bank, she is "very active" with
No. 74833-5-1/3

her sorority, her spouse is a football official and they are "really into sports," and

she is a "crossfit addict."'

                PROSPECTIVE JUROR NUMBER 15: Hi. . .. I live in
        Kirkland with my husband. He is a project manager with an
        investment bank that's based in New Jersey so he's back twice a
        month. In terms of non-work-related clubs, I'm very active with my
        sorority, Alpha Kappa Alpha Sorority, Incorporated. I'm an officer in
        the graduate chapter and also an officer with the foundation which
        is our fundraising arm. In terms of sources of news, newspaper,
        subscription to USA Today and Wall Street Journal, internet as
        well, MSN, Yahoo News, radio, mostly talk radio, sports related, big
        sports fan. And then in terms of hobbies, my husband and I love to
        travel. As I said, we're really into sports. He's a football official so I
        attend a lot of his games. And then I work out. I'm a crossfit
        addict.

        The prosecutor asked Juror 15 about her involvement with the sorority and

whether there were "any times where you may remember something different

than one of your girlfriends did." Juror 15 responded that she joined the sorority

as an undergraduate. As a member of the graduate chapter, she and the other

sorority members "spend time together because we do a lot of community-related

activities." Juror 15 said there were times when she remembered "old memories"

differently than her friends.

        Defense counsel did not individually question Juror 15. However, during

voir dire, defense counsel asked the jury panel whether there are "some reasons

why an innocent person might be charged with a crime." In response, Juror 15

said:

        Just assumptions that that some people make about a particular
        group of people or a particular class of people enters into an
        opinion that they form or a decision that they may make in their


        1 CrossFit is a fitness program that incorporates a number of different exercises,
including gymnastics, weightlifting, running, and rowing.


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No. 74833-5-1/4

          minds. So I think that comes into play and could be a reason why
          an innocent person could actually be accused of something that
          they didn't do.

          At the conclusion of voir dire, the court excused the jury panel to allow the

parties to exercise for-cause and peremptory challenges on the record. After the

prosecutor exercised three peremptory challenges and defense counsel

exercised two peremptory challenges, the defense exercised a peremptory

challenge to strike Juror 15. The court asked,"Why"? In response, defense

counsel mentioned Juror 15's "professionalism"2 but offered no explanation.

Defense counsel identified as reasons to exercise a peremptory challenge Juror

15's involvement in the sorority and that she is "very regimented" and "very much

a rule-follower and may have some trouble seeing areas of gray."

          The court disagreed with the reasons defense counsel identified to strike

Juror 15. The court ruled, "I have trouble with that being a basis to find any

indication of — a basis to excuse her. I'm going to say no for now unless you

can think of another reason to excuse her." Defense counsel offered no other

reason to strike Juror 15. Juror 15 was seated as a member of the jury panel.

The jury convicted Burch as charged of theft in the first degree and assault in the

fourth degree.

Batson Challenge

          Burch seeks reversal of the convictions. Burch contends the court erred in

denying his request to exercise a peremptory challenge and strike Juror 15




          2 The form   Juror 15 filled out listing her name, address, and occupation is not in the
record.


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No. 74833-5-1/5

because there was no prima facie showing of discrimination under Batson.

Burch also claims the court erred in rejecting his race-neutral explanations for

exercising a peremptory challenge to strike Juror 15.

       In Batson, the United States Supreme Court held that the "Equal

Protection Clause" of the Fourteenth Amendment to the United States

Constitution prohibits the State from exercising a peremptory challenge on the

basis of race. Batson, 476 U.S. at 89. "The 'Constitution forbids striking even a

single prospective juror for a discriminatory purpose.'" Foster v. Chatman,

U.S. —, 136 S. Ct. 1737, 1747, 195 L. Ed. 2d 1(2016)(quoting Snyder v.

Louisiana, 552 U.S. 472, 478, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008)).

       The Court in Batson established a three-step process to determine

whether a peremptory challenge is based on race. Batson, 476 U.S. at 93-98.

First, the proponent must make a prima facie showing that the preemptory

challenge is exercised on the basis of race. Batson, 476 U.S. at 93-94. If that

showing has been made, the prosecutor must offer a race-neutral reason for

striking the juror in question. Batson, 476 U.S. at 94. The trial court must then

determine whether the defendant has shown purposeful discrimination. Batson,

476 U.S. at 98.

       In Georgia v. McCollum, 505 U.S. 42, 59, 112 S. Ct. 2348, 120 L. Ed. 2d

33(1992), the Court held the Equal Protection Clause "prohibits a criminal

defendant from engaging in purposeful discrimination on the ground of race in

the exercise of peremptory challenges." The Court states that "denying a person

participation in jury service on account of his race unconstitutionally discriminates



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No. 74833-5-1/6

against the excluded juror." McCollum, 505 U.S. at 48. "Regardless of who

invokes the discriminatory challenge, there can be no doubt that the harm is the

same—in all cases, the juror is subjected to open and public racial

discrimination." McCollum, 505 U.S. at 49. "Selection procedures that

purposefully exclude African-Americans from juries undermine that public

confidence—as well they should." McCollum, 505 U.S. at 49. "'The 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.'" McCollum, 505 U.S. at 49(quoting Powers v. Ohio, 499 U.S.

400, 412, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991)). The Court reiterated that

"the exercise of a peremptory challenge must not be based on either the race of

the juror or the racial stereotypes held by the party." McCollum, 505 U.S. at 59.

       Prima Facie Showing

       Burch cites State v. Evans, 100 Wn. App. 757, 998 P.2d 373(2000), and

State v. Vreen, 143 Wn.2d 923, 26 P.3d 236(2001), to argue the court erred in

denying his peremptory challenge because there was no prima facie showing of

purposeful discrimination. Because the record shows the question of whether

there was a prima facie showing is moot, we reject his argument.

       In Hernandez v. New York, 500 U.S. 352, 359, 111 S. Ct. 1859, 114 L. Ed.

2d 395 (1991), the Court held that if the proponent of a peremptory strike offers a

race-neutral explanation and the trial court has ruled on intentional

discrimination, "the preliminary issue of whether the defendant had made a prima

facie showing becomes moot."



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No. 74833-5-1/7

       In State v. Hicks, 163 Wn.2d 477,492, 181 P.3d 831 (2008), the

Washington Supreme Court cites Hernandez and notes that in State v. Luvene,

127 Wn.2d 690, 699, 903 P.2d 960(1995), our Supreme Court also concluded

that if the proponent"'has offered a race-neutral explanation and the trial court

has ruled on the question of racial motivation, the preliminary prima facie case is

unnecessary.'" The court in Hicks held that if the proponent has "offered a race-

neutral explanation" and the trial court has ruled on whether the justification is

discriminatory, the question of whether a "prima facie case was established" is

moot. Hicks, 163 Wn.2d at 492-93; see also State v. Thomas, 166 Wn.2d 380,

397, 208 P.3d 1107(2009). Where a prima facie showing is moot, the "reviewing

court should focus its deferential review on the trial court's ultimate ruling on the

Batson challenge." Hicks, 163 Wn.2d at 492-93.

       Here, because Burch offered race-neutral reasons for exercising the

peremptory challenge to strike Juror 15 and the court ruled on whether the

reasons were discriminatory, the question of whether there was a prima facie

showing of discrimination is moot. Hicks, 163 Wn.2d at 492-93; Luvene, 127

Wn.2d at 699; Thomas, 166 Wn.2d at 397. We also note that the Washington

Supreme Court recently adopted a bright-line rule for the analysis of a prima

facie showing under Batson. See City of Seattle v. Erickson, 188 Wn.2d 721,

732, 398 P.3d 1124(2017).

       The right to exercise a peremptory challenge in state court is governed by

state law. Rivera v. Illinois, 556 U.S. 148, 152, 129 S. Ct. 1446, 173 L. Ed. 2d

320 (2009). "'[P]eremptory challenges are not of federal constitutional



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No. 74833-5-1/8

dimension.'" Rivera, 556 U.S. at 152(quoting United States v. Martinez-Salazar,

528 U.S. 304, 311, 120 S. Ct. 774, 145 L. Ed. 2d 792(2000)). States may

withhold peremptory challenges "altogether without impairing the constitutional

guarantee of an impartial jury and a fair trial." McCollum, 505 U.S. at 57.

        In Erickson, the court held that the exercise of a peremptory challenge to

strike a juror "who is the only member of a cognizable racial group" establishes a

prima facie showing of race discrimination and the proponent must offer a race-

neutral explanation. Erickson, 188 Wn.2d at 734.3 The court then must

determine based on the totality of circumstances whether the strike is racially

motivated. Erickson, 188 Wn.2d at 736. The court held:

        To ensure a robust equal protection guaranty, we now limit that
        discretion and adopt the bright-line Rhoner41 rule. We hold that the
        trial court must recognize a prima facie case of discriminatory
        purpose when the sole member of a racially cognizable group has
        been struck from the jury. The trial court must then require an
        explanation from the striking party and analyze, based on the
        explanation and the totality of the circumstances, whether the strike
        was racially motivated.

Erickson, 188 Wn.2d at 734 (citing Batson, 476 U.S. at 94).

Race-Neutral Explanations

        Burch also claims the record does not support the trial court's decision to

reject his race-neutral reasons to exercise a peremptory challenge and strike




       3 Here, the record is clear that Juror 15 is an African American woman, but the record
does not indicate the makeup of the jury venire.
       4 State v. Rhone, 168 Wn.2d 645, 229 P.3d 752(2010)(plurality opinion).



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No. 74833-5-1/9

Juror 15.5

        "[A] trial court finding regarding the credibility of an attorney's explanation

of the ground for a peremptory challenge is 'entitled to great deference'"and will

not be overturned unless clearly erroneous. Davis v. Ayala,                        U.S.       , 135 S.

Ct. 2187, 2199, 192 L. Ed. 2d 323(2015)6 (quoting Felkner v. Jackson, 562 U.S.

594, 598, 131 S. Ct. 1305, 179 L. Ed. 2d 374 (2011)); Hicks, 163 Wn.2d at 486.

The Court in Hernandez explained the need to defer to the trial court as follows:

        [T]he trial court's decision on the ultimate question of discriminatory
        intent represents a finding of fact of the sort accorded great
        deference on appeal .. ..
                Deference to trial court findings on the issue of
        discriminatory intent makes particular sense in this context
        because, as we noted in Batson, the finding "largely will turn on
        evaluation of credibility." 476 U.S. at 98, n.21. In the typical
        peremptory challenge inquiry, the decisive question will be whether
        counsel's race-neutral explanation for a peremptory challenge
        should be believed. There will seldom be much evidence bearing
        on that issue, and the best evidence often will be the demeanor of
        the attorney who exercises the challenge. As with the state of mind
        of a juror, ... demeanor and credibility lies "peculiarly within a trial
        judge's province." Wainwright v. Witt, 469 U.S. 412, 428[, 105 S.
        Ct. 844, 83 L. Ed. 2d 841](1985).

Hernandez, 500 U.S. at 364-65. In Miller-El v. Cockrell, 537 U.S. 322, 339, 123

S. Ct. 1029, 154 L. Ed. 2d 931 (2003), the Court also held that "[d]eference is

necessary because a reviewing court, which analyzes only the transcripts from .

voir dire, is not as well positioned as the trial court is to make credibility

determinations."

        5 For the first time in his reply brief, Burch also argues article I, sections 21 and 22 of the
Washington State Constitution guarantee the defendant the right to exercise a peremptory
challenge. We do not consider an analysis under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808
(1986), that is presented for the first time in a reply brief. State v. Hudson, 124 Wn.2d 107, 120,
874 P.2d 160(1994); State v. Clark, 124 Wn.2d 90, 95 n.2, 875 P.2d 613(1994); State v. Lively,
130 Wn.2d 1, 18 n.4, 921 P.2d 1035 (1996); State v. Goodin, 67 Wn. App. 623,628, 838 P.2d
135(1992).
        6 Internal quotation marks omitted.



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No. 74833-5-1/10

       A decision is clearly erroneous only when the reviewing court "is left with a

definite and firm conviction that a mistake has been committed." State v.

Saintcalle, 178 Wn.2d 34, 41, 309 P.3d 326 (2013). "'Where there are two

permissible views of the evidence, the factfinder's choice between them cannot

be clearly erroneous.'" Hernandez, 500 U.S. at 369(quoting Anderson v.

Bessemer,470 U.S. 564, 574, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985)). We

will not "substitute our judgment for that of the trier of fact." State v. Bennett, 180

Wn. App. 484,490, 322 P.3d 815 (2014).

       Here, defense counsel identified two reasons to exercise a peremptory

challenge and strike Juror 15. First, involvement in her sorority and second, a

"pretty strict Crossfit regimen."7

       Your Honor, I'm selecting number 15 because she indicated two
       things about herself, including her professionalism. She's a
       profession in a job. She is very involved with her sorority and with
       a pretty strict Crossfit regimen. The defense perspective on that is
       that she's very regimented, she's very much so a rule-follower and
       may have some trouble seeing areas of gray.

       The court disagreed with defense counsel's characterization of the

answers about her involvement in a sorority or that engaging in CrossFit showed

Juror 15 was "rule driven." The court stated, "I'm very concerned about

dismissing a juror of color where I don't see a bias."

       I didn't hear that, and she's African American. I mean, she — she
       did indicate she's involved in her sorority, but she said they're
       involved in community activity, which hardly indicates that she's
       rule driven, and she didn't say anything about being ridged [sic]
       about Crossfit. She just said it's an activity. It didn't — it's not a
       stress she gave us when she was talking about her life. I mean, I
       just don't see it, and I'm very concerned about dismissing a juror of
       color where .1 don't see a basis.

       7 As   previously noted, defense counsel mentioned but did not address "professionalism."


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No. 74833-5-1/11


       The court asked defense counsel is there "[a]nything else going on [with

Juror 15]that concerns you"? In response, defense counsel told the court, "That

was just my impression of her, Your Honor, overall was that she was very rule

oriented." The court disagreed with the assumption that "everybody in Crossfit is

rule driven" and asked counsel to identify some other reason.

       I don't know where you get that from. Okay?
               Is there any other answer you point to? I hate to assume
       everybody in Crossfit is rule driven. Do you follow me? I mean,
       especially when the person doesn't express that in any other way.

       Defense counsel identified the involvement of Juror 15 in the sorority.

       I think of it in terms of the — not in being a member of sororities,
       perhaps just my own impressions, but... being so involved — I've
       known people who are involved as an adult in sororities.

       The court pointed out the sorority is an African American sorority that

engages in community activities. The court rejected involvement in the sorority

as a basis to excuse Juror 15.

       Okay. But I'm — I'm going to point out that, is [the] sorority she
       mentioned is an African American sorority. Okay? And she
       indicated that these hear [sic] vehicle for community involvement,
       so I'm really having trouble with this. Do you follow me?
              [DEFENSE COUNSEL]: I do. I follow you, Your Honor, in
       terms that in not wanting to excuse someone who's of a minority
       group. All I say is the impression —
              THE COURT: Particularly —
              [DEFENSE COUNSEL]: — it was the only —
              THE COURT: — when their membership —
              [DEFENSE COUNSEL]: — impression that I had.
              THE COURT: — is in another minority group that's
       community based, I have trouble with that being a basis to find any
       indication of — a basis to excuse her.

       Burch does not meet his burden of showing that the trial court's decision

to reject the justifications to exercise a peremptory challenge and strike an


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  No. 74833-5-1/12

 African American juror was clearly erroneous or that the record compels "a

 contrary conclusion." Saintcalle, 178 Wn.2d at 56. Further, the"'failure to

 engage in any meaningful voir dire examination on a subject the [proponent]

 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)); see also Hicks, 163 Wn.2d at 491 ("Lack of questioning

  prior to dismissing a juror can be evidence that the removal is race-based.").

         Because the trial court's decision to reject the justifications for exercising a

 peremptory challenge to strike Juror 15 was not clearly erroneous, we affirm.8




                                                        ci t-Q9-LA\fee9e-,
. WE CONCUR:




                                                         3ec-K._ev

                                                                                               CD

          8 Burch asks us to deny appellate costs if the State claims it is entitled to costs as the,
 substantially prevailing party. Appellate costs are generally awarded to the substantially
 prevailing party. RAP 14.2. However, where a trial court makes a finding of indigency, that7.--!,
 finding remains throughout review "unless the commissioner or clerk determines by a                •
 preponderance of the evidence that the offender's financial circumstances have significantlg
 improved since the last determination of indigency." RAP 14.2. Under RAP 14.2, the State4ray           ,
 file a motion for costs if financial circumstances have significantly improved since the findingiif
 indigency. State v. St. Clare, 198 Wn. App. 371, 382, 393 P.3d 836(2017).


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