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
                                                               FILED
                                                            Jul 25 2012, 9:29 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                        CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

P. STEPHEN MILLER                                 GREGORY F. ZOELLER
Fort Wayne, Indiana                               Attorney General of Indiana

                                                  IAN MCLEAN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DARNELL TINKER,                                   )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 02A03-1112-CR-587
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                        The Honorable John F. Surbeck, Jr., Judge
                            Cause No. 02D05-1108-FB-193



                                         July 25, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Darnell Tinker appeals his conviction for possession of a firearm by a serious

violent felon, a Class B felony, and his adjudication as an habitual offender following a

jury trial. Tinker presents three issues for our review:

       1.     Whether the trial court properly denied Tinker’s Batson challenge.

       2.     Whether Tinker was denied his right to a public trial under the Sixth
              Amendment to the U.S. Constitution and Article I, Section 13 of the
              Indiana Constitution.

       3.     Whether the State presented sufficient evidence to support his
              adjudication as an habitual offender.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On August 20, 2011, Tinker, a serious violent felon, was arrested for possession of

a firearm. At trial, during voir dire, Tinker moved to strike one of two African-American

prospective jurors for cause, and the State agreed. The State then moved to strike the

second African-American juror for cause, and Tinker asserted a Batson challenge. In

response to that challenge, the State gave the following reasons for the strike:

       Well there’s a multitude of different reasons but one of the things that she’s
       being stricken for the same reason [sic] we struck the first juror for cause.
       She has an eighteen[-]year[-]old son who’s been shot. She said she does
       not believe it was handled properly by the police and while she, on
       rehabilitation from Ms. Kraus, said she thought she could be fair, there’s
       enough concern there on my part to give me reason to believe she can’t be
       fair. But I also have an eighteen[-]year[-]old who is supposedly going to
       take the stand in a few moments and testify that he put the gun in [Tinker’s]
       car. Which leaves concerns for me as to whether or not they would be
       sympathetic since she had a son who was shot. She also raised different
       health issues so that’s the reason . . . .

Transcript at 87. The trial court denied Tinker’s Batson challenge.
                                              2
       The trial was bifurcated, and during the first phase, the jury found Tinker guilty of

possession of a firearm by a serious violent felon. During the habitual offender phase,

the State presented exhibits 11, 12, 13, and 14, which supported a determination of

Tinker’s habitual offender status. After those exhibits were admitted into evidence,

without objection, the trial court instructed the jury as follows:

       Ladies and gentlemen, my direction, counsel for the State has prepared
       copies of each of those certified documents just admitted for your use.
       Ordinarily, as you saw earlier in the trial, as things were published, things
       were published during the course of the trial. There is some length to these
       documents, so what I have suggested to him is that we will publish them to
       you once you retire to deliberate. You’ll need to review these documents to
       assure yourselves . . . that he satisfied the elements of the habitual [offender
       adjudication], but I thought you would be more comfortable doing that in
       the jury room rather than out here.

Transcript at 193.     Tinker made no objection.         Following deliberations, the jury

adjudicated Tinker an habitual offender. The trial court entered judgment and sentenced

Tinker to forty years executed. This appeal ensued.

                             DISCUSSION AND DECISION

                              Issue One: Batson Challenge

       Tinker first contends that the trial court erred when it denied his Batson challenge.

Peremptory challenges may not be exercised to achieve purposeful racial discrimination.

Bradley v. State, 649 N.E.2d 100, 105 (Ind. 1995) (citing Batson v. Kentucky, 476 U.S.

79, 96 (1986)). For a criminal defendant to establish a prima facie case of purposeful

racial discrimination in the selection of a jury, it must be shown that (1) the prosecutor

has exercised peremptory challenges to remove members of a cognizable racial

group from the venire; and (2) the facts and any other relevant circumstances of the


                                              3
defendant’s case raise an inference that the prosecutor used that practice to exclude

venirepersons from the jury due to their race. Id. (citing Batson, 476 U.S. at 96). Once

such a prima facie showing has been established, the burden shifts to the State to present

an explanation for challenging such jurors. Id. (citing Batson, 476 U.S. at 97). The trial

court then has a duty to determine whether the defendant has established purposeful

discrimination. Id. (citing Batson, 476 U.S. at 98). The trial court’s finding is accorded

great deference. Id. (citing Batson, 476 U.S. at 98).

       Here, again, there were two African-American prospective jurors, and the parties

agreed to strike the first one for cause. But when the State attempted to strike the second

for cause, Tinker made a Batson challenge. Because that juror, Juror 40, was the last

remaining African-American venireperson after the first one was stricken from the panel,

an inference was established that the juror was excluded on the basis of race. See

McCants v. State, 686 N.E.2d 1281, 1284 (Ind. 1997). The burden then shifted to the

State to offer a race-neutral explanation for peremptorily challenging this prospective

juror. See id.

       The State then provided a “multitude of different reasons,” including the fact that

Juror 40 had an eighteen-year-old son who had been shot, and she believed that it had not

been “handled properly by the police.” Transcript at 87. The State also pointed out that

Juror 40 “raised different health issues.” Id. The trial court found that the State had

satisfied its burden to provide race-neutral reasons for the strike and dismissed Juror 40.

       On appeal, Tinker contends that the State’s rationale for the strike “was not based

on the facts.” Brief of Appellant. But Tinker does not provide citations to the record in


                                             4
support of that contention. On the other hand, the State directs us to the pages in the

transcript where its colloquy with Juror 40 can be found. Juror 40 stated that she was

“nervous” and that she “ha[dn’t] eaten and [her] blood pressure [was] probably sky high.”

Transcript at 73. When asked whether she had “any issues right now that you feel

uncomfortable health[-]wise,” Juror 40 responded, “Yes.” Id. The prosecutor then asked

follow up questions about her health, but the transcript shows that Juror 40’s responses

were inaudible. Finally, Juror 40 stated that she has a son who was shot “several years

back” and that he survived, but that she had “issues with that.” Id. at 74. When defense

counsel asked Juror 40 to clarify what she meant by “issues,” she explained that her issue

“is guns.” Id. at 77. And Juror 40 went on to state that she was “not sure in the back of

[her] mind [that] the situation was handled correctly [by police].” Id. at 77-78.

       Tinker urges us to find that Juror 40’s responses indicate that she would have been

biased in favor of the State and, therefore, the State’s reasons for the strike are not

supported.    But another reasonable interpretation, given that she expressed negative

feelings about law enforcement, is that she harbors ill will towards the State. Further,

Juror 40’s audible statements regarding her health problems support the State’s comment

that her health was a factor in the strike. Again, we give “great deference” to the trial

court in this determination. Batson, 476 U.S. at 98. Here, Tinker has not demonstrated

that the trial court’s rejection of his Batson challenge was clearly erroneous. Tinker is

not entitled to a new trial on this basis.




                                             5
                                Issue Two: Public Trial

       Tinker next contends that “[t]he failure to have the jury review [the State’s

exhibits 11, 12, 13, and 14] in public and in the presence of the Defendant and counsel

was a violation of Article I, Section 13 of the Indiana Constitution and the Sixth

Amendment [to] the United States Constitution.” Brief of Appellant at 14. Both Article

I, Section 13 and the Sixth Amendment provide in relevant part that an accused shall

have a right to a public trial. In Williams v. State, 690 N.E.2d 162, 167 (Ind. 1997), our

supreme court addressed the right to a fair trial under both the state and federal

constitutions as follows:

       The right to a public trial has long been recognized as a fundamental right
       of the accused. [In re ]Oliver, 333 U.S. [257,] 266-67; Hackett v.
       State, 266 Ind. [103,] 109, 360 N.E.2d [1000,] 1004[ (1977)]. It helps
       ensure a fair trial because “the presence of interested spectators may keep
       [the accused’s] triers keenly alive to a sense of their responsibility and to
       the importance of their functions. . . .” Waller [v. Georgia], 467 U.S. [39,]
       46 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979) (in turn
       quoting Oliver, 333 U.S. at 270 n. 25)). It protects the accused by allowing
       the public to assess the fairness of the proceedings. In addition, it
       encourages witnesses to come forward, and discourages perjury.
       Waller, 467 U.S. at 46. In addition to the rights of the defendant, the public
       trial implicates the First Amendment right of the press and public to attend
       a criminal trial or other proceeding. However, neither right is absolute.
       Complete or partial exclusion of the public may be justified if a court finds
       “that closure is essential to preserve higher values and is narrowly tailored
       to serve that interest. The interest is to be articulated along with findings
       specific enough that a reviewing court can determine whether the closure
       order was properly entered.” Waller, 467 U.S. at 45. Examples of valid
       exclusions include forbidding the televising of a public trial and protecting
       a witness fearful of retaliation by those attending the trial.

(Some citations omitted).

       Here, Tinker does not explain how the right to a public trial is implicated in the

trial court’s decision to publish the exhibits to the jury at the beginning of their
                                             6
deliberations. The exhibits were offered and admitted into evidence in open court and in

his presence, and Tinker made no objection to the admission of those exhibits. Neither

did Tinker object when the trial court announced that, given that the exhibits were

voluminous, the jurors “would be more comfortable [reviewing the documents] in the

jury room rather than [in the courtroom].”        Transcript at 193.     Tinker makes no

contention that the trial was closed to the public. Instead, he avers that he had a right to

“observe the demeanor of the jury as they observe[d] the evidence[.]” Brief of Appellant

at 15. We hold that Tinker has not shown that he was denied his right to a public trial.

                       Issue Three: Sufficiency of the Evidence

       Finally, Tinker contends that the State presented insufficient evidence to support

his adjudication as an habitual offender. Upon a challenge to the sufficiency of the

evidence for an habitual offender determination, the appellate court neither reweighs the

evidence nor judges the credibility of the witnesses; rather, we examine only the evidence

most favorable to the judgment, together with all of the reasonable and logical inferences

to be drawn therefrom. Woods v. State, 939 N.E.2d 676, 677 (Ind. Ct. App. 2010). The

habitual offender determination will be sustained on appeal so long as there is substantial

evidence of probative value supporting the judgment. Id.

       A person is an habitual offender if the State proves beyond a reasonable doubt that

he has two prior, unrelated felony convictions. Ind. Code § 35-50-2-8(g). To support an

habitual offender finding, (1) the second prior unrelated felony must be committed after

sentencing for the first prior unrelated felony conviction; and (2) the offense for which

the State seeks to have the person sentenced as an habitual offender must be committed


                                             7
after sentencing for the second prior unrelated felony conviction. Ind. Code § 35-50-2-

8(c).

        Here, the State presented the following evidence in support of the habitual

offender charge: documents showing that Tinker had previously been convicted of armed

robbery and forgery; a fingerprint card dated March 18, 1983, signed by “Darnell Tinker”

and showing a typewritten name of “Darrell Tinker” with an alias of “Darnell NMH

Tinker;” and a fingerprint card showing Tinker’s fingerprints taken on the morning of

trial in this case. See State’s Exhibit 13. The State also presented testimony by Eric

Black, a fingerprint expert, that Tinker’s fingerprints made the morning of trial matched

those shown in State’s Exhibit 13. And Black testified that Tinker is the same man who

previously had been convicted of armed robbery and forgery.

        Still, Tinker points out that the State did not present evidence to show his date of

birth or social security number and that the 1983 signature card identifies the fingerprints

as belonging to “Darrell Tinker” and not “Darnell Tinker.” But Tinker misses the point.

Based upon fingerprint evidence, Black testified that Tinker is the same man who had

previously been convicted of two felonies. There was ample evidence that Tinker, a/k/a

Darrell Tinker, had committed armed robbery and forgery. Tinker’s argument on appeal

amounts to a request that we reweigh the evidence, which we will not do. The State

submitted sufficient evidence to support his adjudication as an habitual offender.

        Affirmed.

RILEY, J., and DARDEN, Sr.J., concur.




                                             8
