[Cite as State v. Jenkins, 2015-Ohio-5167.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :  C.A. CASE NO. 2015-CA-6
                                                    :
 v.                                                 :  T.C. NO. 14CR379
                                                    :
 K-VONNE JENKINS                                    :  (Criminal appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :
                                               ...........
                                              OPINION
                          Rendered on the 11th day of December, 2015.
                                               ...........

NATHANIEL R. LUKEN, Atty, Reg. No. 0087864, Assistant Prosecutor, 61 Greene Street,
Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee



DAVID R. MILES, Atty. Reg. No. 0013841, 125 West Main Street, Suite 201, Fairborn,
Ohio 45324
      Attorney for Defendant-Appellant

                                              .............

FAIN, J.

        {¶ 1} Defendant-appellant K-Vonne T. Jenkins appeals from his conviction and
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sentence on one count of Sexual Battery, in violation of R.C. 2907.03(A)(2), a felony of

the third degree. Jenkins contends that his conviction is not supported by sufficient

evidence, and is also against the manifest weight of the evidence. He also contends that

the trial court erred in overruling his objection, under Batson v. Kentucky, 476 U.S. 79,

106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State’s peremptory challenge to a

prospective juror.

       {¶ 2} We conclude that the judgment of the trial court is supported by sufficient

evidence, and is not against the manifest weight of the evidence. We also conclude that

the record supports the overruling of Jenkins’s Batson objection, because the State

offered a race-neutral basis for its peremptory challenge, which the trial court accepted

as non-pretextual. Accordingly, the judgment of the trial court is Affirmed.



                                      I. The Offense

       {¶ 3} In early March 2014, the victim, K.H., went to a party at a residence located

in Xenia, Ohio. Accompanying K.H. to the party were her friends, S.L. and R.R. K.H.,

S.L. and R.R. were all sixteen years of age at the time of the incident. K.H. testified that

she and her friends were going to the party to meet two men they had met on Facebook,

John and Buddy. The three girls arrived at the party between 7:00 and 8:00 p.m. When

K.H. and her friends arrived, John and Buddy were the only individuals at the residence.

       {¶ 4} Approximately two hours later, six or seven more people, including Jenkins,

arrived at the residence where the party was being held. K.H. testified that during this

time, she smoked marijuana and had “one sip” of alcohol. K.H. also testified that she

was taking a number of medications that had been prescribed for anxiety and depression,
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including Trazodone, Remeron, Prozac, and Klonopin.

       {¶ 5} Around this time, K.H. began having some limited interaction with Jenkins.

Jenkins discussed buying some of K.H.’s prescription medications, including Vicodin and

Percocet. Jenkins left the party for a short time to purchase more alcohol for K.H. and

her friends. K.H. testified that Jenkins returned to the party less than one hour later with

more alcohol.     K.H. further testified that someone handed her a cup containing

approximately one inch of clear liquid, which she assumed to be water. K.H. testified

that she drank the contents of the cup.

       {¶ 6} Later that night, Jenkins and some of his friends approached K.H. and

attempted to persuade her to accompany them into the bathroom by telling her that John

was attracted to her. The bathroom area of the house contained two rooms separated

by door; a larger room with a sink and a bathtub, and a smaller room with a toilet. K.H.

went into the smaller room and shut the door. K.H. testified that she could hear Jenkins

and his friends speaking with John for a short time. At this point, K.H. testified that she

started to feel dizzy and weak, and was unable to form her words correctly.

       {¶ 7} After John left the bathroom, Jenkins opened the door to the smaller room,

where K.H. was. K.H. testified that Jenkins told her that if she wanted to leave the

bathroom, she had to perform oral sex on him and his friends. K.H. testified that she felt

very weak, and the men pushed her down on her knees next to the bathtub. K.H. testified

that her memory faded out, and she did not recall performing oral sex on any of the men.

When she became conscious and aware of her surroundings again, Jenkins had pushed

her into the smaller section of the bathroom and taken off her clothes. Jenkins then bent

K.H. over the toilet and placed his penis in her vagina. K.H. testified that she had no
                                                                                          -4-


control of her body, and Jenkins had to hold her up during the entire sexual assault, which

lasted about ten minutes. K.H. testified that she passed out for short time after the

assault, waking up later while still within the smaller section of the bathroom.

          {¶ 8} K.H. testified that her friends S.L. and R.R. helped her find her clothes and

dress herself after she woke up. K.H. testified that they left the party approximately 45

minutes later and arrived at her house at about 7:00 a.m. Once K.H. got home, she slept

the entire next day.

          {¶ 9} S.L. testified that when she, K.H., and R.R. arrived at the party, there were

just a few men smoking marijuana and drinking alcohol. The men offered the girls

marijuana and alcohol. The men, including Jenkins, also offered to purchase the girls

alcohol. The girls accepted their offer and gave them money. S.L. testified that the men

left the party for a while, returning shortly thereafter with two bottles of vodka. S.L.

testified that she, K.H., and R.R. smoked marijuana and drank vodka directly from the

bottle.    R.R. did not drink as much as the rest of the girls, because she was the

designated driver. After finishing the first bottle, they opened the second bottle and

began drinking from it. S.L. also testified that she observed people snorting Xanax pills

at the party, but she did not ingest any Xanax, nor did she observe K.H. do so.

          {¶ 10} S.L. testified that K.H. appeared to be heavily intoxicated. S.L. testified

that K.H. was “stumbling and acting kind of crazy and just wild.” Trial Tr. Vol. I, pg. 169.

S.L. further testified that everyone at the party stayed in the same room together for the

entire night; however, at some point, she noticed that K.H. was not in the room with her.

When K.H. returned, S.L. observed her cut her foot on a piece of glass. S.L. testified

that K.H. failed to register any discernible reaction upon cutting her foot. S.L. testified
                                                                                        -5-


that on the way home, K.H. passed out in the back seat of the car. S.L. testified that they

arrived at K.H.’s house at approximately 5:30 a.m. the next morning. S.L. slept at K.H.’s

house for an hour after they arrived. S.L. testified that when she woke up, she observed

that K.H. had fallen asleep in a chair in the kitchen and had vomited on the floor nearby.

      {¶ 11} K.H. testified that she woke up in her own bed between 7:00 and 8:00 p.m.

the following night. After piecing together the events of the previous night, K.H. went

downstairs and told her parents that she had been assaulted. K.H.’s mother immediately

took her to the hospital, where she underwent a sexual assault exam conducted by

Carolyn Palmer, a registered nurse.      Palmer testified that she interviewed K.H. and

conducted a physical exam. Palmer testified that she found several areas of bruising

and redness on K.H.’s body, including redness, tenderness, and swelling around the

vaginal area. Palmer also collected evidence during the exam, including oral, vaginal,

and rectal swabs, which she dried and sealed in separate envelopes before including

them in a rape kit. Palmer collected blood and urine samples from K.H. In addition,

Palmer obtained the underwear K.H. had been wearing when she was assaulted.

      {¶ 12} K.H. tested positive for marijuana and benzodiazepines.          Additionally,

K.H.’s blood was found to contain Trazodone, Xanax, Mirtazapine, Klonopin, and Prozac.

Jenkins’s DNA was found in K.H.’s underwear.

      {¶ 13} Jenkins did not testify at trial.     However, Xenia Police Department

Detective Matt Miller interviewed Jenkins on April 3, 2014.      Det. Miller testified that

Jenkins provided an oral and a written statement regarding his actions on the night of the

alleged assault. Specifically, Jenkins stated that he was only at the party at the Xenia

residence for about twenty to thirty minutes before he left with a friend. Jenkins stated
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that while he was at the party, he spoke to K.H. for about five minutes regarding some

prescription medications that that she was taking. Jenkins denied having any other

contact with K.H.

                             II. The Course of Proceedings

       {¶ 14} Jenkins was indicted on two counts of Sexual Battery. The first count was

based on K.H.’s allegation that Jenkins forced her to have vaginal sex with him. The

second count was based on K.H.’s allegation that Jenkins forced her to perform oral sex

on him.

       {¶ 15} Jenkins moved to suppress any statements he made to the police and any

other physical evidence obtained through DNA testing. The trial court overruled the

motion to suppress, following a hearing.

       {¶ 16} At the jury trial, following the close of the State’s evidence, Jenkins moved,

under Crim.R. 29, for a judgment of acquittal on both counts of Sexual Battery. The trial

court dismissed the second count pursuant to Jenkins’s Crim.R. 29 motion, and the jury

found Jenkins guilty of the remaining count of sexual battery. Jenkins filed a post-verdict

motion for acquittal, which was overruled. The trial court ordered Jenkins to submit to

an examination by the Forensic Psychiatry Center for Western Ohio as a candidate for

probation and risk of sexual re-offense.      The trial court also ordered the probation

department to assemble a pre-sentence investigation report (PSI) for Jenkins.

       {¶ 17} Jenkins was sentenced to a nine-month prison term, with jail-time credit of

221 days. The trial court also designated Jenkins as a Tier III sexual offender. Jenkins

appeals.

      III. The Judgment Is Supported by the Evidence, and Is Not Against the
                                                                                         -7-


                           Manifest Weight of the Evidence

       {¶ 18} Jenkins’s First, Second, and Third Assignments of Error are as follows:

              APPELLANT’S CONVICTION FOR SEXUAL BATTERY IS BASED

       UPON INSUFFICIENT EVIDENCE.

              THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

       MOTION FOR ACQUITTAL.

              APPELLANT[’S] CONVICTION FOR SEXUAL BATTERY IS

       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 19} In his First Assignment of Error, Jenkins contends that his conviction for

sexual battery is not supported by sufficient evidence. In his Second Assignment of

Error, Jenkins argues that the trial court erred when it overruled his post-verdict Crim. R.

29(C) motion for acquittal with respect to the first count of sexual battery. Since the

standard of review is the same for both of these assignments of error, they can be

addressed together. In his Third Assignment of Error, Jenkins argues that his conviction

for Sexual Battery is against the manifest weight of the evidence. In support of all three

assignments of error, Jenkins argues that the State adduced insufficient evidence to

establish that K.H. was “substantially impaired,” as required under R.C. 2907.03(A)(2).

Jenkins also argues that the State failed to prove that he knew K.H. was substantially

impaired when he engaged in the sexual activity with her.

       {¶ 20} In reviewing a ruling on a Crim. R. 29(C) post-verdict motion for judgment

of acquittal, we must determine whether the evidence, when viewed in a light most

favorable to the State, supports the verdict. State v. Mauro, 2d Dist. Montgomery No.

9499, 1987 WL 14254, *1 (July 14, 1987). “Reviewing the denial of a Crim. R. 29 motion
                                                                                           -8-


therefore requires an appellate court to use the same standard as is used to review a

sufficiency of the evidence claim.” Id. “In reviewing a claim of insufficient evidence, ‘[t]he

relevant inquiry is whether, after reviewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.’ ” (Citations omitted). State v. Crowley, 2d Dist. Clark

No. 2007 CA 99, 2008-Ohio-4636, ¶ 12.

       {¶ 21} “A weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” State v. Cassell, 2d Dist. Clark No. 09CA0064, 2011-Ohio-23,

¶ 46. When a conviction is challenged on appeal as being against the manifest weight

of the evidence, “ ‘[t]he court, reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.’ ”

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983).

       {¶ 22} With the foregoing standards in mind, we conclude that Jenkin’s Sexual

Battery conviction is supported by legally sufficient evidence and is not against the

manifest weight of the evidence. In relevant part, the Sexual Battery statute provides:

“No person shall engage in sexual conduct with another, not the spouse of the offender,

when any of the following apply: * * * The offender knows that the other person’s ability

to appraise the nature of or control the other person’s own conduct is substantially

impaired.” R.C. 2907.03(A)(2). “The phrase ‘substantially impaired,’ in that it is not
                                                                                          -9-


defined in the Ohio Criminal Code, must be given the meaning generally understood in

common usage. * * * [S]ubstantial impairment must be established by demonstrating a

present reduction, diminution or decrease in the victim’s ability, either to appraise the

nature of his conduct or to control his conduct. This is distinguishable from a general

deficit in ability to cope, which condition might be inferred from or evidenced by a general

intelligence or I. Q. report.” State v. Zeh, 31 Ohio St.3d 99, 103-104, 509 N.E.2d 414

(1987). Although substantial impairment may be established through expert testimony,

expert testimony is not required. Substantial impairment also may be established through

lay testimony, State v. Hatten, 186 Ohio App.3d 286, 2010-Ohio-499, 927 N.E.2d 632, ¶

21 (2d Dist.) (discussing substantial impairment in a rape case and noting that it can be

shown through non-expert witnesses who have interacted with the victim). Furthermore,

voluntary intoxication is a “mental or physical condition” that could cause substantial

impairment under R.C. 2907.02(A)(1)(c). Id.

       {¶ 23} In State v. Harmath, 3d Dist. Seneca No. 13-06-20, 2007-Ohio-2993, the

defendant was aware that the victim had consumed a large amount of alcohol; she was

described as being “drunk” and “very intoxicated.” The defendant saw the victim stumbling

and falling down, and he saw her vomit twice before “passing out.” Based on these facts,

the court of appeals concluded that the trial court did not err in overruling Harmath’s Crim.

R. 29 motion for acquittal. See also State v. Eberth, 7th Dist. Mahoning No. 07-MA-196,

2008-Ohio-6596 (defendant’s carrying unconscious victim, whom he was aware had

passed out after ingesting a large amount of alcohol and cocaine, from bar is evidence

that he knew, or should have known, of her substantial impairment); State v. Williams, 9th

Dist. Lorain No. 02CA008112, 2003-Ohio-4639 (defendant’s awareness that victim has
                                                                                          -10-


passed out after ingesting a substantial amount of alcohol is evidence that he knew, or

should have known, that the victim was substantially impaired).

       {¶ 24} In the case before us, K.H. testified that she only had a “sip” of alcohol and

smoked a small amount of marijuana at the party. Additionally, 45 minutes before she

was sexually assaulted by Jenkins, she claims that someone at the party gave her a cup

containing a clear liquid, which she also ingested. On the other hand, S.L. testified she,

K.H., and R.R. smoked marijuana and drank vodka directly from the bottle.              After

finishing the first bottle, S.L. testified that they opened the second bottle purchased by

Jenkins and began drinking directly from it as well. Significantly, K.H. was taking several

prescription medications, which were found in her bloodstream, including Trazodone,

Mirtazapine, Klonopin, and Prozac. K.H.’s drug screen established that she had also

recently ingested Xanax. S.L. testified that she observed several individuals snorting

Xanax during the party.

       {¶ 25} S.L. further testified that K.H. appeared to be heavily intoxicated. S.L.

testified that K.H. was “stumbling and acting kind of crazy and just wild.” Trial Tr. Vol. 1,

pg. 169. S.L. testified that on the way home, K.H. passed out in the back seat of the car.

S.L. testified that they arrived at K.H.’s house at about 5:30 a.m. S.L. slept at K.H.’s

house for an hour after they arrived there. S.L. testified that when she woke up, she

observed that K.H. had fallen asleep in a chair in the kitchen and had vomited on the floor

around herself.

       {¶ 26} Significantly, K.H. testified that during the sexual assault she felt dizzy and

weak, and she was unable to form her words correctly. Additionally, K.H. testified that

when Jenkins bent her over the toilet and placed his penis in her vagina, she had no
                                                                                        -11-


control of her body, and Jenkins had to hold her up during the entire sexual assault, which

lasted about ten minutes. When the incident was over, K.H. testified that she passed out

for a short time, waking up later, still located in the smaller section of the bathroom. We

conclude that the jury had sufficient evidence before it that K.H. was substantially

impaired.

       {¶ 27} The more difficult question is whether Jenkins knew, or had reasonable

cause to believe, that K.H. was substantially impaired. “[W]hen reviewing substantial

impairment due to voluntary intoxication, there can be a fine, fuzzy, and subjective line

between intoxication and impairment. Every alcohol consumption does not lead to a

substantial impairment. Additionally, the waters become even murkier when reviewing

whether the defendant knew, or should have known, that someone was impaired rather

than merely intoxicated.” Hatten, 186 Ohio App.3d 286, at ¶ 23, citing State v. Doss, 8th

Dist. Cuyahoga No. 88443, 2008-Ohio-449, ¶ 18.

       {¶ 28} Upon review, we conclude that the State adduced sufficient evidence to

establish that Jenkins knew, or had reasonable cause to believe, that K.H. was

substantially impaired. S.L. testified that K.H. appeared to be heavily intoxicated. K.H.

was stumbling around and acting kind of crazy. S.L. further testified that everyone at the

party stayed in the same room together for the entire night. K.H. testified that she saw

Jenkins throughout the night. Moreover, K.H. and Jenkins had at least two personal

encounters that night. The first encounter occurred when Jenkins asked K.H. about her

prescription medications, and they exchanged phone numbers. The second encounter

occurred when K.H. and her friends gave Jenkins money to purchase them a second

bottle of vodka. Therefore, it is a reasonable inference that Jenkins observed K.H. in her
                                                                                          -12-


heavily intoxicated state and was aware of the advanced state of her impairment.

       {¶ 29} It is also significant that K.H. was unable to speak properly immediately prior

to the sexual assault in the smaller section of the bathroom. K.H. testified that in order

to engage in sexual conduct with her, Jenkins had to remove her clothes and position her

over the toilet, all while holding her up because she could not support herself. Viewed

in a light most favorable to the State, the evidence was sufficient to permit a reasonable

jury to find that Jenkins knew, or had reasonable cause to believe, that K.H. was

substantially impaired when he sexually assaulted her. Accordingly, the trial court did

not err when it overruled Jenkins’s post-verdict Crim. R. 29(C) motion for acquittal.

       {¶ 30} The evidence in the record supports Jenkins’s conviction for Sexual Battery.

The jurors had the opportunity to hear and observe all of the witnesses, and they chose

to credit the State’s witnesses. Determinations of credibility are primarily for the finder

of fact. There is substantial evidence in the record that K.H. was substantially impaired

and that Jenkins was aware of this when he engaged in sexual activity with her. We

conclude that the jury did not lose its way when it chose to credit the testimony of the

State’s witnesses. We conclude that the evidence does not weigh heavily against a

conviction, and that a manifest miscarriage of justice has not occurred.

       {¶ 31} Jenkins’s First, Second, and Third Assignments of Error are overruled.



     IV. The Trial Court Did Not Err in Overruling Jenkins’s Batson Objection

            to the State’s Peremptory Challenge to a Prospective Juror

       {¶ 32} Jenkins’s Fourth Assignment of Error is as follows:

              THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTING
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       ATTORNEY TO EXERICSE A PEREMPTORY CHALLENGE AGAINST AN

       AFRICAN-AMERICAN JUROR IN VIOLATION OF BASTON [sic] V.

       KENTUCKY.

       {¶ 33} In his final assignment, Jenkins argues that the trial court erred when it

permitted the State to exercise a peremptory challenge against an African-American juror

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

Jenkins asserts that the State’s stated reason for excluding the prospective juror, her

husband’s prior drug-trafficking conviction, is not a sufficiently race-neutral explanation.

       {¶ 34} In Batson, the U.S. Supreme Court set forth a three-part test for determining

whether a prosecutor’s use of a peremptory challenge is racially motivated:

              “First, the defendant must make a prima facie showing that the

       prosecutor has exercised peremptory challenges on the basis of race.”

       Batson, 476 U.S. at 82.      “In order to establish a prima facie case of

       discrimination, the defendant must point to facts and other relevant

       circumstances that are sufficient to raise an inference that the prosecutor

       used its peremptory challenge specifically to exclude the prospective juror

       on account of his race.” State v. Carver, 2d Dist. Montgomery No. 21328,

       2008-Ohio-4631, ¶ 48 (citations omitted). “The trial court must ‘consider

       all relevant circumstances in determining whether a prima-facie case exists,

       including statements by counsel exercising the peremptory challenge,

       counsel’s questions during voir dire, and whether a pattern of strikes against

       minority venire members is present.’ ” Id., quoting Batson, supra, at 96-97.

              “Second, once the defendant establishes a prima facie case of
                                                                                         -14-


      discrimination, the burden shifts to the prosecutor to articulate a race-

      neutral explanation for the peremptory challenge ‘related to the particular

      case to be tried.’ ” Id. at ¶ 49, quoting Batson, supra, at 98. “Although a

      simple affirmation of general good faith will not suffice, the prosecutor’s

      explanation ‘need not rise to the level justifying exercise of a challenge for

      cause.’ ” Id., quoting Batson, supra, at 97.        “In fact, the prosecutor’s

      explanation for striking the prospective juror is not required to be

      persuasive, or even plausible.” Id. “ ‘At this [second] step of the inquiry,

      the issue is the facial validity of the prosecutor’s explanation. Unless a

      discriminatory intent is inherent in the prosecutor’s explanation, the reason

      offered will be deemed race neutral.’ ” Id., quoting Purkett v. Elem, 514 U.S.

      765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

             “Third, the trial court must determine ‘whether the defendant has

      carried his burden of proving purposeful discrimination.’ ” Id. at ¶ 50, quoting

      Batson, supra, at 82. “In making such a determination, the trial court must

      decide whether the prosecutor’s race-neutral explanation is credible, or

      instead is a ‘pretext’ for unconstitutional discrimination.” Id., citing

      Hernandez v. New York (1991), 500 U.S. 352, 363, 111 S.Ct. 1859, 114

      L.Ed.2d 395. “Because this third stage of the analysis rests largely on the

      trial court’s evaluation of the prosecutor’s credibility, an appellate court is

      required to give the trial court’s findings great deference.” Id. (Citations

      omitted.)

State v. Greene, 2d Dist. Montgomery No. 24307, 2011-Ohio-4541, ¶¶ 7, 8, 9.
                                                                                  -15-


{¶ 35} During voir dire in the case before us, the following exchange occurred:

       The Court: *** Okay. Third challenge for the State?

       The State: The State would excuse Juror Number 11, Ms. H * * *.

       The Court: Is there any objection from the Defense.

       The Defense: Just one moment, Your Honor. I need to refer to that.

Yes, that’s –

       The Court: Do you have an objection?

       The Defense: Yes, I do, Your Honor. I’m sorry.

       The Court: Okay. What is your reason to excuse Juror Number 11?

       The State: She, the State had asked questions about people with

prior experience. The State excused Juror Number 2 for this exact reason.

That there was [sic] indications on their questionnaires about family

members who had been convicted of other crimes.

       Juror Number 2 had a GSI. This juror has drug trafficking and didn’t

say a word about it when asked by the State, and so given that –

       The Court: This is, this is her conviction?

       The State: This is her husband’s conviction.

       The Court: This is her husband’s conviction.

       The State: She did not mention it was for drug trafficking back in

2003. There was no mention of it when inquired upon.

       The Court: Well, she wasn’t asked, was she, about it? [Emphasis

added.]

       The Defense: I didn’t think --
                                                                                          -16-


              The State: The question asked regarding experiences. First was,

       the first question was regarding family, friends with sexual assault issues,

       and then regarding drugs and alcohol, any issues with that. She didn’t

       bring that up at all.

              The Court: I’m not a 100% sure that carries the day, however, I’m

       only looking for a neutral reason, and the fact that her husband has been

       convicted of a crime is a sufficiently neutral reason, so I will permit the

       peremptory in this regard for the record.

       {¶ 36} The State initially predicated its peremptory challenge upon the prospective

juror’s husband’s prior conviction for drug trafficking, likening its decision to exercise its

peremptory challenge to this juror to a previous peremptory challenge to another juror

based upon a sex-offense conviction. The State then embellished the point, noting that

this prospective juror had not mentioned the fact during voir dire. The trial court noted

that this prospective juror had not been questioned on the subject of family-member

convictions, which would explain why she had not brought it up, but concluded that the

fact of her husband’s drug-trafficking conviction, even without the embellishment,

constituted a race-neutral explanation for the peremptory challenge.

       {¶ 37} In a similar case we found that the trial court did not err in denying the

defendant’s Batson objection. Greene, 2d Dist. Montgomery No. 24307, 2011-Ohio-

4541. Specifically, we found that the trial court was in the best position to evaluate the

genuineness of the prosecutor’s race-neutral explanation for using a peremptory

challenge to remove an African American from the jury for failing to disclose his brother’s

conviction for drug trafficking seven years prior. Id. at ¶ 15. We further recognized that
                                                                                          -17-


where the record supports a prosecutor’s race-neutral explanation, a trial court properly

may conclude that the explanation is not a pretext for racial discrimination.       Id.    In

Greene, we also noted that the record established that the State had exercised

peremptory challenges for the same reason on two similarly situated members of the

potential jury. Id., at ¶ 4, fn. 2.

       {¶ 38} Initially, we note that while Jenkins objected to the State’s exercise of a

peremptory challenge against Juror #11 because she is a member of a protected minority

class, that fact standing alone is insufficient to establish a prima facie case of

discrimination. As previously discussed, the defendant must point to facts and other

relevant circumstances that are sufficient to raise an inference that the prosecutor used

its peremptory challenge specifically to exclude the prospective juror on account of his

race. Carver, at ¶ 48. For example, apparent racial discrimination may be evident from

the record by questions, remarks or comments relating to a single peremptory strike.

Greene, at ¶ 10. In addition, or in the absence of evident discrimination, a pattern of

peremptory strikes against minorities can be sufficient to demonstrate prima facie racial

discrimination. Id. Here, the record indicates that Jenkins failed to establish any facts

or relevant circumstances sufficient to raise an inference that the State utilized its

peremptory challenge specifically to exclude Juror #11 on account of her race. 1

Accordingly, the trial court was not obligated to proceed to the second stage of the Batson

inquiry, which is to inquire of the State whether it has a race-neutral explanation for the



1 Indeed, the record is undeveloped on the Batson issue. It does not reflect the race of
the prospective juror, for example. From the manner in which the trial court and counsel
proceeded, we infer that the prospective juror was a member of a protected minority class,
which the State has not disputed in this appeal.
                                                                                         -18-


peremptory challenge. Nevertheless, the trial court proceeded to the second stage,

without objection by the State.

       {¶ 39} We conclude that the record supports the State’s race-neutral explanation

for exercising a peremptory challenge against Juror #11. Specifically, the State’s race-

neutral explanation was that Juror #11’s husband had been convicted of drug trafficking

in 2003. The trial court is in the best position to determine whether the proffered, race-

neutral explanation is non-pretextual, i.e., whether it was the real reason why the State

exercised the peremptory challenge. In the case before us, the trial court accepted the

State’s explanation, and we find nothing in the record to suggest that the trial court erred

in that regard. We conclude, therefore, that the trial court did not err when it permitted

the State to exercise a peremptory challenge against Juror #11.

       {¶ 40} Jenkins’s Fourth Assignment of Error is overruled.



                                      V. Conclusion

       {¶ 41} All of Jenkins’s assignments of error having been overruled, the judgment

of the trial court is Affirmed.

                                       ..........

WELBAUM, J., concurs.

DONOVAN, J., dissenting:

       {¶ 42} I disagree. The State did not base its challenge of Juror Number 11 on a

fact contained in her questionnaire. Rather, the State suggested that “the State had

asked questions about people with prior experience.” Juror Number 11 “didn’t say a

word when asked by the State and so given that - ”. . . “there was no mention of it when
                                                                                        -19-


inquired upon.” The State’s position was that Juror Number 11 had been less than

candid in voir dire and Juror Number 2 was excused for “this exact reason.” However,

Juror Number 2 failed to orally disclose the GSI conviction when a specific inquiry was

made to the entire panel on the subject of sexual assaults:

              The State: The allegation in this case involves sexual assault.

       Without going into any details about the fact that that is what this case is

       going to revolve around, does anyone have concerns either personally

       themselves, they have a family member, they’ve had a friend who’s been

       subject whether they were the victim, whether they were a witness, whether

       they were a Defendant in the case, does anyone sitting here today have

       any concerns knowing that this is a sexual assault case?

Transcript of Proceedings, November 17, 2014, p. 52.

       {¶ 43} Furthermore, the majority’s suggestion that Greene is similar overlooks an

important distinction. In Greene, the prosecutor asked the challenged juror about his

brother’s conviction, specifically would the juror hold the conviction against the State?

The response elicited from the juror caused concern for the State, but not the trial court.

       {¶ 44} We know from the record, including the exhibits, that Jenkins is a member

of a protected class. He is African-American and the complaining witness is a Caucasian

juvenile. As we emphasized in State v. Manns, 169 Ohio App.3d 687, 2006-Ohio-5802,

864 N.E.2d 657 (2d Dist.), “the State of Ohio must be scrupulous in building a record that

legitimately demonstrates its articulated concern.”
                                                                                       -20-


      {¶ 45} It was not the trial court’s duty to search for or substitute a distinct race

neutral reason.     This was constitutional error in my view, and only undermines

confidence in a system which must be fundamentally fair. I would reverse.

                                      ..........



Copies mailed to:

Nathaniel R. Luken
David R. Miles
Hon. Stephen A. Wolaver
