MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Sep 30 2019, 9:29 am

court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Elton Maurice Funches, Jr.,                              September 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-138
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelli E. Fink,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1802-F4-1310



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019           Page 1 of 19
                                             Case Summary
[1]   Elton Maurice Funches, Jr., appeals his convictions for level 4 felony unlawful

      possession of a firearm by a serious violent felon and level 6 felony dealing in a

      synthetic drug. He argues that his rights under the Fourth Amendment to the

      United States Constitution, Article 1, Section 11 of the Indiana Constitution,

      and Indiana Code Section 35-33-5-2 were violated by the admission of evidence

      obtained pursuant to a search warrant that he alleges was unsupported by

      probable cause. He further argues that the trial court clearly erred in overruling

      his objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), and concluding

      that the State’s reason for its peremptory strike of the only African-American

      member of the jury pool was not a pretext for intentional discrimination.

      Concluding that none of his rights were violated and finding no error, we

      affirm.


                                 Facts and Procedural History
[2]   In February 2018, Vanderburgh County Sheriff’s Department Detective Joshua

      Patterson and other police officers executed a search warrant at 1730 South

      Kerth Avenue in Evansville, a single-story house occupied and rented by

      Funches. The search warrant authorized law enforcement to search the

      premises and Funches’ Chrysler 300 for evidence pertaining to the crime of

      possession or dealing in controlled substances, specifically synthetic

      cannabinoids. During the search of Funches’ residence, officers discovered a

      Ruger revolver, a Glock semiautomatic handgun, a stack of currency totaling

      $806.00, and 1358.4 grams of a green leafy substance, which was identified as

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019   Page 2 of 19
      synthetic cannabinoids. Some of the leafy substance was packaged in Ziploc

      baggies. When questioned during the search, Funches admitted that police

      would find the synthetic cannabinoids and a firearm in the residence and that

      he had traded the drugs for one of the firearms. He also admitted that he

      usually purchased two pounds of the drug at a time for $1000 a pound.


[3]   The State charged Funches with level 4 felony unlawful possession of a firearm

      by a serious violent felon and level 6 felony dealing in a synthetic drug.

      Funches filed a motion to suppress the evidence obtained pursuant to the search

      warrant. Funches filed a memorandum in support of the motion arguing that

      the search warrant was unsupported by probable cause as required under the

      Fourth Amendment to the United States Constitution, Article 1, Section 11 of

      the Indiana Constitution, and Indiana Code Section 35-33-5-2. The trial court

      held a hearing on the motion, at which Funches submitted the affidavit for the

      search warrant, the search warrant, and the return on the search warrant. The

      trial court took the motion under advisement and subsequently denied it.

      During trial, Funches objected to the admission of the evidence obtained

      pursuant to the search warrant and incorporated the arguments and evidence

      heard at the hearing on the motion to suppress. The jury found Funches guilty

      as charged. The trial court sentenced Funches to concurrent terms of eight

      years for the level 4 felony conviction and 547 days for the level 6 felony

      conviction. This appeal ensued. Additional facts will be provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019   Page 3 of 19
                                     Discussion and Decision

         Section 1 – The search warrant was supported by probable
                                  cause.
[4]   Funches argues that any evidence obtained pursuant to the search warrant was

      inadmissible because the search warrant was unsupported by probable cause

      that police would find evidence of dealing or possession of synthetic

      cannabinoids at his residence. We review a trial court’s ruling on the admission

      of evidence for an abuse of discretion. Cartwright v. State, 26 N.E.3d 663, 667

      (Ind. Ct. App. 2015), trans. denied. However, we review de novo the trial

      court’s determination regarding the existence of probable cause to support a

      search warrant. Smith v. State, 982 N.E.2d 393, 405 (Ind. Ct. App. 2013), trans.

      denied.


[5]   Both the Fourth Amendment to the United States Constitution and Article 1,

      Section 11 of the Indiana Constitution require probable cause for the issuance

      of a search warrant. Id. at 404. The Fourth Amendment states,


                The right of the people to be secure in their persons, houses,
                papers, and effects, against unreasonable searches and seizures,
                shall not be violated, and no Warrants shall issue, but upon
                probable cause, supported by Oath or affirmation, and
                particularly describing the place to be searched, and the persons
                or things to be seized.


      Article 1, Section 11 of the Indiana Constitution contains nearly identical

      language. State v. Spillers, 847 N.E.2d 949, 953 (Ind. 2006). The warrant

      requirement is a principal protection against unnecessary intrusions into private

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019   Page 4 of 19
      dwellings. Chiszar v. State, 936 N.E.2d 816, 825 (Ind. Ct. App. 2010), trans.

      denied (2011). To generally deter law enforcement officers from violating

      people’s Fourth Amendment rights, the United States Supreme Court has

      established the exclusionary rule, which prohibits the admission of evidence

      seized in violation of the Fourth Amendment. Reinhart v. State, 930 N.E.2d 42,

      48 (Ind. Ct. App. 2010). Indiana also prohibits the admission of evidence

      seized in violation of Article 1, Section 11. Wright v. State, 108 N.E.3d 307,

      313-14 (Ind. 2018).


[6]   These federal and state constitutional rights are codified in Indiana Code

      Section 35-33-5-2, which sets forth the information that an affidavit for a search

      warrant is required to contain. Spillers, 847 N.E.2d at 953. Indiana Code

      Section 35-33-5-2(a) provides that a search warrant affidavit must particularly

      describe “the house or place to be searched and the things to be searched for[,]”

      allege “substantially the offense in relation thereto and that the affiant believes

      and has good cause to believe that ... the things sought are concealed there[,]”

      and set “forth the facts known to the affiant through personal knowledge or

      based on hearsay, constituting the probable cause.”


[7]   In determining whether to issue a search warrant, “[t]he task of the issuing

      magistrate is simply to make a practical, commonsense decision whether, given

      all the circumstances set forth in the affidavit ... there is a fair probability that

      contraband or evidence of a crime will be found in a particular place.” Jaggers v.

      State, 687 N.E.2d 180, 181 (Ind. 1997) (quoting Illinois v. Gates, 462 U.S. 213,

      238 (1983)). “The duty of the reviewing court is to determine whether the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019   Page 5 of 19
      magistrate had a ‘substantial basis’ for concluding that probable cause existed.”

      Id. (quoting Gates, 462 U.S. at 238-39). Probable cause is a fluid concept

      incapable of precise definition and must be decided based on the facts of each

      case. Smith, 982 N.E.2d at 404. “The level of proof necessary to establish

      probable cause is less than that necessary to establish guilt beyond a reasonable

      doubt.” Jellison v. State, 656 N.E.2d 532, 534 (Ind. Ct. App. 1995). “[P]robable

      cause means a probability of criminal activity, not a prima facie showing.” Fry

      v. State, 25 N.E.3d 237, 244 (Ind. Ct. App. 2015), trans. denied. “Probable cause

      may be established by evidence that would not be admissible at trial.” Jellison,

      656 N.E.2d at 534. Such evidence may include hearsay, which is an out-of-

      court statement offered to prove the truth of the matter asserted. Ind. Evidence

      Rule 801(c).


[8]   When this Court reviews whether probable cause supported the issuance of a

      search warrant, “we nonetheless afford ‘significant deference to the magistrate’s

      determination’” and “focus on whether reasonable inferences drawn from the totality of

      the evidence support that determination.” Spillers, 847 N.E.2d at 953 (quoting

      Houser v. State, 678 N.E.2d 95, 98-99 (Ind. 1997)) (emphasis added). We

      consider only the evidence and reasonable inferences drawn therefrom that

      were presented to the issuing magistrate and not post hoc justifications. Jaggers,

      687 N.E.2d at 182; see also Flaherty v. State, 443 N.E.2d 340, 343 (Ind. Ct. App.

      1982) ( “The issue ... is whether the affidavit itself, without additional

      information or testimony presented after the search warrant is executed, alleges

      sufficient facts upon which the issuing authority could have made an

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019   Page 6 of 19
      independent determination of probable cause.”). “A presumption of validity of

      the search warrant exists, and the burden is upon the defendant to overturn that

      presumption.” Rios v. State, 762 N.E.2d 153, 156-57 (Ind. Ct. App. 2002)

      (quoting Snyder v. State, 460 N.E.2d 522, 529 (Ind. Ct. App. 1984)). “In

      determining whether an affidavit provided probable cause for the issuance of a

      search warrant, doubtful cases should be resolved in favor of upholding the

      warrant.” State v. Shipman, 987 N.E.2d 1122, 1126 (Ind. Ct. App. 2013).


[9]   Here, Detective Patterson executed the search warrant affidavit, which reads as

      follows:


              On 02/13/2018, your affiant was conducting surveillance in the
              area of 1728 S Kerth Ave. Your affiant has conducted
              surveillance in the area several times over the past week and has
              observed frequent short term vehicle traffic park in front of 1728
              S Kerth Av[e.], 1730 Kerth Ave, and 1732 S Kerth Ave. These
              houses share a common parking area off of Kerth Ave and in
              front of the residences. On several occasions, the vehicles would
              have multiple occupants and upon their arrival at the residence,
              only one occupant would go inside, leaving the others behind in
              the running vehicle. Your affiant recognizes this as common
              practice with illegal narcotic sales. Your affiant determined that
              a common vehicle is always parked in front of the residences
              during this short term vehicle traffic. It is a … Chrysler 300,
              bearing Indiana license plate 887TPG. When this vehicle is not
              there, no short term traffic is observed. Your affiant believes the
              owner of this vehicle lives at or next to 1728 S Kerth Ave and is
              possibly dealing from the residence. A check of the vehicle
              registrations show[s] the owner as Elton Funches. Funches has
              several prior narcotic arrests. Your affiant was advised by
              another detective within the Evansville-Vanderburgh Drug Task
              Force, that they received information from a reliable confidential

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019   Page 7 of 19
          source that Funches deals in large amounts of synthetic
          cannabinoids. Detectives also received a tip within the past two
          weeks that there was heavy traffic occurring at 1730 S Kerth Ave.


          On yesterday’s date, 02/13/2018, your affiant observed a black
          mustang in front of the residence along with the Chrysler 300.
          Your affiant is familiar with this vehicle and its owner, Will
          Simpson, as being involved in illegal narcotic sales in different
          parts of Evansville. … The vehicle was parked in front of 1728 S
          Kerth Ave, with an unknown passenger seated in the vehicle.
          Your affiant observed the owner of the vehicle exit a residence
          near 1728 S Kerth Ave. Your affiant could not see exactly which
          residence the vehicle owner came from. The owner entered the
          vehicle and left the area.


          Your affiant observed this vehicle make a traffic violation and
          had the Evansville Police Department patrol units initiate a
          traffic stop for the violation. An investigation revealed over one
          hundred grams of synthetic cannabinoids. Simpson was read his
          Miranda Rights and stated he understood. He agreed to speak
          with your affiant. Simpson told your affiant that they had bought
          the synthetic cannabinoids from “Boo” Funches, [who] resides at
          1728 S Kerth Ave. Your affiant knows Elton Funches has an
          alias of “Boo” in RMS.[ 1] Simpson was shown a photograph of
          1728 S Kerth Ave and confirmed that was where Funches lives
          and where they bought the synthetic cannabinoids. He went on
          to tell your affiant that there was approximately 5-10 pounds of
          synthetic cannabinoids and possibly $10,000 US currency inside
          the residence.


          You[r] affiant applied for and was granted a judicially signed
          search warrant for 1728 S Kerth Ave. … On today’s date,



1
    We presume that RMS stands for Record Management System.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019   Page 8 of 19
               02/14/2018, detectives with the drug task force began
               surveillance on 1728 S Kerth Ave. Detective Knight observed an
               unknown male exit the residence at 1732 S Kerth Ave. This
               unknown male, walked over to and inside 1730 S Kerth Ave. He
               soon exited 1730 S Kerth Ave with vehicle keys and unlocked the
               … Chrysler 300 that is registered to Elton Funches. He gets
               inside the vehicle and removes a white plastic grocery bag. He
               then closes the vehicle door and takes the keys back inside 1730 S
               Kerth Ave. The unknown male then returns to 1732 S Kerth
               Ave. This is the same type of bag your affiant located in Will
               Simpson’s vehicle the day before. That bag contained the
               synthetic cannabinoids that Simpson stated he had just bought
               from Funches.


               Your affiant then learned that 1730 S Kerth Ave is a rental
               property. Your affiant was able to contact the owner of the rental
               property who confirmed that Elton Funches rents 1730 S Kerth
               Ave. Both 1728 and 1730 S Kerth Ave have similar features.
               Both are white in color, have a covered porch supported by three
               pillars, and share a common parking space. Your affiant believes
               Simpson mistakenly stated he bought the synthetic cannabinoids
               from 1728 S Kerth and instead meant 1730 S Kerth Ave.


       Defendant’s Ex. 1, Ex. Vol. 6 at 270-73.


[10]   Funches argues that the affidavit does not have sufficient indicia of probable

       cause because it fails to establish the reliability of the hearsay statements upon

       which it relies, namely, those of the confidential informant, the tip to law

       enforcement, and Simpson. When an affidavit is based on hearsay, Indiana

       Code Section 35-33-5-2(b) requires that the affidavit must either “(1) contain

       reliable information establishing the credibility of the source and of each of the

       declarants of the hearsay and establishing that there is a factual basis for the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019   Page 9 of 19
       information furnished; or (2) contain information that establishes that the

       totality of the circumstances corroborates the hearsay.” (Emphasis added.) For

       purposes of proving probable cause, the trustworthiness of hearsay can be

       established in a number of ways,


               including where (1) the informant has given correct information
               in the past; (2) independent police investigation corroborates the
               informant’s statements; (3) some basis for the informant’s
               knowledge is shown; or (4) the informant predicts conduct or
               activities by the suspect that are not ordinarily easily predicted.
               Depending on the facts, other considerations may come into play
               in establishing the reliability of the informant or the hearsay.


       Jaggers, 687 N.E.2d at 182. “[U]ncorroborated hearsay from a source whose

       credibility is itself unknown, standing alone, cannot support a finding of

       probable cause to issue a search warrant.” Id. (citing Gates, 462 U.S. at 227).


[11]   In addressing Funches’ argument, we begin by noting that it is premised on the

       faulty presumption that the affidavit attempts to establish probable cause based

       solely on the hearsay statements. To the contrary, the affidavit does not rely

       exclusively, or even predominantly, on the hearsay statements; it also contains

       considerable “facts known to the affiant through personal knowledge,” see Ind.

       Code § 35-33-5-2(a), and a probable cause determination is based on all the

       circumstances set forth in the affidavit. See Jaggers, 687 N.E.2d at 181.


[12]   The affidavit reveals that Detective Patterson conducted surveillance of the area

       in front of 1728 and 1730 S. Kerth Avenue several times over the course of a

       week. The two houses share a common parking area in front of the residences.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019   Page 10 of 19
       Detective Patterson observed vehicles with multiple passengers stop in front of

       the houses, with one person leaving the vehicle to go inside one of the houses

       while the other passengers waited with the vehicle running. Detective Patterson

       recognized this behavior “as a common practice with illegal narcotics sales.”

       Defendant’s Ex. 1, Ex. Vol. 6 at 272. When Detective Patterson observed this

       behavior, Funches’ Chrysler 300 was always parked in front of the houses.

       When Funches’ Chrysler 300 was not present, Detective Patterson did not

       observe this “common practice.” Funches has several prior narcotic drug

       arrests. Another detective advised Detective Patterson that a reliable

       confidential source informed police that Funches deals in large amounts of

       synthetic cannabinoids. Also, police received a tip that there was heavy traffic

       occurring at 1730 S. Kerth Avenue. The information obtained by Detective

       Patterson through his own surveillance and his experience and knowledge as a

       law enforcement officer support a reasonable inference that activity common to

       illegal drug sales was occurring at or near 1730 S. Kerth Avenue and that

       Funches was likely involved in that activity, and therefore the totality of the

       circumstances corroborates the hearsay statements. See Ind. Code § 35-33-5-

       2(b)(2).


[13]   In addition to the above, the affidavit also shows that Detective Patterson

       observed a vehicle belonging to Will Simpson, who Detective Patterson knew

       to have been involved in illegal narcotic sales, parked in front of 1728 and 1730

       S. Kerth Avenue with an unknown passenger seated inside the vehicle.

       Detective Patterson saw Simpson exit one of the houses near 1728 S. Kerth


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019   Page 11 of 19
       Avenue, although he could not see exactly which house Simpson left. After

       Simpson drove away, he was pulled over for a traffic violation, and officers

       found over one hundred grams of synthetic cannabinoids in a white grocery

       bag. Simpson told police that he bought the drug from “Boo” Funches, and

       Detective Patterson knew that Funches had an alias of “Boo.” Defendant’s Ex.

       1, Ex. Vol. 6 at 272. Simpson was shown a picture of the house at 1732 S.

       Kerth Avenue and believed that it was Funches’ house.


[14]   After Detective Patterson was issued a search warrant for 1728 S. Kerth

       Avenue, police officers conducted additional surveillance of the area. Detective

       Knight 2 saw a man exit 1732 S. Kerth Avenue, walk over to and go inside 1730

       S. Kerth Avenue, then shortly thereafter exit that residence with car keys. The

       man unlocked Funches’ Chrysler 300, collected a white grocery bag that was

       the same kind of bag that held the synthetic cannabinoids found in Simpson’s

       vehicle, and then returned the car keys to 1730 S. Kerth Avenue before

       returning to 1732 S. Kerth Avenue. Detective Patterson then learned that

       Funches rented 1730 S. Kerth Avenue. 1730 S. Kerth Avenue has similar

       features to 1728 S. Kerth Avenue. Here again, the totality of the circumstances

       corroborates Simpson’s hearsay statement that Funches had been dealing




       2
         A police officer may properly rely on information obtained from a fellow officer under the collective-
       knowledge doctrine. McGrath v. State, 95 N.E.3d 522, 529 (Ind. 2018). The collective- or imputed-knowledge
       doctrine applies to both investigative stops and search warrants. Id. “Unlike the hearsay requirement of the
       warrant statute, designed to ensure an informant’s veracity, the collective-knowledge doctrine presumes a
       fellow officer’s credibility, thus ‘no special showing of reliability need be made as a part of the probable cause
       determination.’” Id. at 530 (quoting 2 WAYNE R. LAFAVE, SEARCH & SEIZURE: A TREATISE ON THE FOURTH
       AMENDMENT § 3.5(a) (5th ed. 2017)).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019                   Page 12 of 19
       synthetic cannabinoids, and Detective Patterson himself confirmed which

       house was Funches’. 3 We conclude that all the circumstances in the affidavit

       and the reasonable inferences arising therefrom support the magistrate’s

       determination that there was probable cause to believe that evidence pertaining

       to the crime of dealing or possession of synthetic cannabinoids would be found

       at Funches’ premises. We conclude that the search warrant was issued in

       accordance with the constitutional and statutory rights guaranteed to Funches. 4

       Accordingly, the trial court did not abuse its discretion in admitting the

       evidence.


           Section 2 – The trial court did not clearly err in overruling
                           Funches’ Batson objection.
[15]   During voir dire, defense counsel objected to one of the State’s peremptory

       strikes as follows:


                I’m going to raise a Batson challenge on this one. …. [That
                prospective juror] is the only African-American in the [jury pool].



       3
          Funches argues that Simpson’s hearsay statements were unreliable, citing Spillers, 847 N.E.2d 949. Spillers
       is clearly distinguishable. In Spillers, the State argued that the hearsay statement at issue was reliable because
       it was a statement against the penal interest of the person who made it. Our supreme court rejected that
       argument because the person who made the statement had been arrested for drug possession, and “his tip was
       less a statement against his penal interest than an obvious attempt to curry favor with the police.” Id. at 956.
       Here, unlike the hearsay statement in Spillers, the reliability of Simpson’s hearsay statement is based on the
       corroboration of the totality of circumstances.
       4
         Funches also argues that the search of his house was unreasonable under the Indiana Constitution based on
       the factors articulated by our supreme court in Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). However,
       he has waived that issue by raising it for the first time on appeal. See Howard v. State, 818 N.E.2d 469, 477
       (Ind. Ct. App. 2004) (“A defendant may not raise one ground for objection at trial and argue a different
       ground on appeal. The failure to raise an issue at trial waives the issue for appeal.”) (citation omitted), trans.
       denied (2005).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019                   Page 13 of 19
        …. He said, I’m not going to hold law enforcement to a lower
        standard, I’m not going to disbelieve them automatically out of
        the gate, I’m going to consider all of the evidence. Nothing with
        [that prospective juror] that stood out from anybody else, any
        other Caucasian jurors.


Tr. Vol. 2 at 70. The prosecutor responded,


        Yes. My response to that would be there’s no systematic part or
        reason that we’re doing that. He is on federal parole for
        voluntary manslaughter. (inaudible). I didn’t want to get into
        [that] in front of everybody … because I didn’t want him to feel
        very uncomfortable, but he is on federal parole.


Id. The trial court found that because the prospective juror was the only

African-American member of the jury pool, Funches had made a prima facie

case of discrimination. Id. at 70-71. The trial court then asked the prosecutor

to confirm what crime the juror was on federal parole for. Id. at 71. The

prosecutor showed the trial court the juror’s questionnaire, pointing out that the

juror “gave the cause number, it’s a federal cause number.” Id. The trial court

then ruled, “[B]ased on what I’ve seen in the questionnaire and [the

prosecutor’s] argument, I’ll allow that [peremptory] challenge. Okay, your

Batson objection is overruled.” Id. After a recess, the prosecutor informed the

trial court and Funches that the prosecutor had discovered that the juror had

been convicted of a state crime and that his parole had ended in 2007. Id. at 76-

77. The prosecutor also explained that he had originally been under the

impression that the juror was still on parole based on information from the



Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019   Page 14 of 19
       “NCIC.” 5 Id. at 76. The trial court asked whether there were jurors who had

       been selected who had felony convictions, and the prosecutor informed the trial

       court that there were not. Id. at 77. The trial court then affirmed its previous

       ruling. Id.


[16]   Funches argues that his rights under the Fourteenth Amendment to the United

       States Constitution were violated by the State’s use of a peremptory strike to

       strike the only African-American prospective juror. “Purposeful racial

       discrimination in selection of the venire violates a defendant’s right to equal

       protection because it denies him the protection that a trial by jury is intended to

       secure.” Batson, 476 U.S. at 86. “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, 962 N.E.2d 1202, 1208 (Ind. 2012).

       “Pursuant 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.”

       Cartwright, 962 N.E.2d at 1220. At the first step, the defendant must make a

       prima facie showing that there are “circumstances raising an inference that

       discrimination occurred.” Addison, 962 N.E.2d at 1208. At the second step, if

       the defendant makes a prima facie showing, the burden shifts to the prosecution

       to “‘offer a race-neutral basis for striking the juror in question.’” Id. at 1209

       (quoting Snyder, 552 U.S. at 477). “A race-neutral explanation means ‘an




       5
           We presume this refers to the National Crime Information Center.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019   Page 15 of 19
       explanation based on something other than the race of the juror.’” Highler v.

       State, 854 N.E.2d 823, 827 (Ind. 2006) (quoting Hernandez v. New York, 500 U.S.

       352, 360 (1991)). “Unless a discriminatory intent is inherent in the prosecutor’s

       explanation, the reason offered will be deemed race neutral.” Addison, 962

       N.E.2d at 1209 (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995)). “[T]he issue

       is the facial validity of the prosecutor’s explanation.” McCormick v. State, 803

       N.E.2d 1108, 1111 (Ind. 2004) (quoting Purkett, 514 U.S. at 768).


[17]   Even if the State’s reasons appear on their face to be race-neutral, at the third

       step, the trial court must perform the essential task of assessing whether the

       State’s facially race-neutral reasons are credible. Addison, 962 N.E.2d at 1209.

       The second and third steps must not be conflated. See id. at 1210 (“The

       analytical structure established by Batson cannot operate properly if the second

       and third steps are conflated.”) (quoting United States v. Rutledge, 648 F.3d 555,

       559 (7th Cir. 2011)). In determining whether the State’s explanation for the

       strike is credible and not a pretext for discriminatory intent, the trial court must

       consider the State’s explanation “in light of all evidence with a bearing on it.”

       Id. (quoting Miller-El v. Dretke, 545 U.S. 231, 251-52 (2005)); see also Snyder, 552

       U.S. at 478 (“[I]n considering a Batson objection, or in reviewing a ruling

       claimed to be Batson error, all of the circumstances that bear upon the issue of

       racial animosity must be consulted.”). Although this third step requires the trial

       court to evaluate “the persuasiveness of the justification” proffered by the

       prosecutor, “the ultimate burden of persuasion regarding racial motivation rests

       with, and never shifts from, the opponent of the strike.” Highler, 854 N.E.2d at

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019   Page 16 of 19
       828 (quoting Purkett, 514 U.S. at 768). At this stage, the defendant may offer

       additional evidence to demonstrate that the prosecutor’s reasons are pretextual.

       Addison, 962 N.E.2d at 1210. Then, “in light of the parties’ submissions, the

       trial court must determine whether the defendant has shown purposeful

       discrimination.” Id. at 1209 (quoting Snyder, 552 U.S. at 477).


[18]   “[U]pon appellate review, a trial court’s decision concerning whether a

       peremptory challenge is discriminatory is given great deference, and will be set

       aside only if found to be clearly erroneous.” Cartwright, 962 N.E.2d at 1221

       (quoting Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001)); see also Jeter v. State,

       888 N.E.2d 1257, 1265 (Ind. 2008) (“On appeal, a trial court’s ruling on the

       issue of discriminatory intent must be sustained unless it is clearly erroneous.”)

       (citing Snyder v. Louisiana, 552 U.S. 472, 478 (2008)), cert. denied. “The trial

       court’s conclusion that the prosecutor’s reasons were not pretextual is

       essentially a finding of fact that turns substantially on credibility. It is therefore

       accorded great deference.” Highler, 854 N.E.2d at 828. We also note that

       “where … a prosecutor has offered a race-neutral explanation for the

       peremptory challenge and the trial court has ruled on the ultimate question of

       intentional discrimination, the preliminary issue of whether the defendant had

       made a prima facie showing of purposeful discrimination becomes moot.”

       Cartwright, 962 N.E.2d at 1222; accord Addison, 962 N.E.2d at 1209 n.2.


[19]   Funches’ argument on appeal appears to focus on the third step. Specifically,

       he argues that this Court should find that the prosecutor’s reason for striking the

       only African-American is pretextual because the prosecutor later admitted that

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019   Page 17 of 19
       the prospective juror was no longer on parole and because the juror answered

       questions during voir dire in a manner that indicated that he would be fair in

       this case. Funches further argues that the only reason that the prosecutor struck

       the juror was because he had a prior criminal record and such a reason should

       not be sufficient to remove the only African-American member of the jury pool.

       We are unpersuaded by Funches’ argument.


[20]   When Funches’ made his Batson challenge, the trial court had the prospective

       juror’s questionnaire. That questionnaire asked, “Have you or any of your

       immediate family members been charged with or convicted of a felony? If yes,

       please explain:” Court’s Ex. 1, Ex. Vol. 5 at 97. The prospective juror wrote,

       “Myself 1986 Attempted Voluntary Manslaughter.” Id. He also wrote the

       cause number for his case. Id. Although it was later revealed that the NCIC

       database had mistakenly provided a federal parole number for the juror, the

       trial court and Funches were informed of this mistake. Funches does not assert,

       nor does the record suggest, that the prosecutor intentionally attempted to

       mislead the judge. Further, it is undisputed that the juror had been either

       charged with or convicted of attempted voluntary manslaughter, which is a

       serious offense. It is the trial court’s task to judge the credibility of the

       prosecutor, and we defer to its conclusion. 6 See Highler, 854 N.E.2d at 828.

       Therefore, we cannot say that the trial court clearly erred in finding that the




       6
        Despite the juror’s representations that he could be fair in this case, it would not be unreasonable for the
       State to be concerned that the juror might be biased against the State because of his criminal record.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019                  Page 18 of 19
       State’s reason for striking the juror was not a pretext for intentional

       discrimination.


[21]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-138 | September 30, 2019   Page 19 of 19
