                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                          JOHN OVIEDO, Appellant.

                             No. 1 CA-CR 18-0236
                               FILED 4-30-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-002092-002
               The Honorable Susanna C. Pineda, Judge

                                  AFFIRMED


                                   COUNSEL

Maricopa County Legal Defender's Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant

Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
                             STATE v. OVIEDO
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Jon W. Thompson and Vice Chief Judge Peter B. Swann joined.


M O R S E, Judge:

¶1            John Oviedo appeals his convictions and sentences for three
counts of aggravated assault and one count of misdemeanor assault. He
argues the superior court erred by allowing the State to use a peremptory
challenge to strike a juror for discriminatory purposes. For the following
reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2           In June 2015, Oviedo was charged with six counts of
aggravated assault, including five charged as dangerous felonies.

¶3            Trial commenced on January 30, 2018.1 At trial, the State
dismissed two of the charged counts and proceeded on the remaining four
counts. After jury selection was conducted, Oviedo raised a Batson2
challenge to one of the State's peremptory strikes against a juror ("Juror 1").
Oviedo argued that Juror 1 was "the only African American male on the
panel" and "[t]here [was] no information . . . about him that would cause
him to be seen as unfair to either party." After the State provided a reason
for the peremptory strike, the court found the reason to be race-neutral and
allowed the strike to stand.

¶4             The jury found Oviedo guilty of three counts of aggravated
assault, class 3 dangerous felonies, and guilty of the lesser-included offense
of misdemeanor assault for the remaining count. The jury also found
several aggravating factors. The superior court sentenced Oviedo to
aggravated, concurrent sentences of 12 years' imprisonment on two counts;
a consecutive term of 7.5 years' imprisonment on the third felony count;



1     A previous trial ended in a mistrial on October 3, 2017, after the jury
could not reach a unanimous verdict.

2      Batson v. Kentucky, 476 U.S. 79 (1986).


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                             STATE v. OVIEDO
                            Decision of the Court

and a concurrent term of 6 months' in jail on the misdemeanor, with credit
for 6 months' time served.

¶5             Oviedo timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                               DISCUSSION

¶6             Oviedo's sole argument on appeal is that the superior court's
finding that the State's peremptory strike of Juror 1 was race-neutral, is
"clearly erroneous, requiring reversal" of Oviedo's convictions and
sentences. When reviewing a trial court's ruling on a Batson challenge, we
defer to its factual findings unless clearly erroneous, but review its legal
determinations de novo. State v. Lucas, 199 Ariz. 366, 368, ¶ 6 (App. 2001).

¶7              The Equal Protection Clause of the Fourteenth Amendment
prohibits a party from using a peremptory strike to remove a prospective
juror from the jury panel based solely upon race. Batson v. Kentucky, 476
U.S. 79, 89 (1986). A Batson challenge involves three steps. First, the party
challenging the strike must make a prima facie showing that the strike was
based on race. Lucas, 199 Ariz. at 368, ¶ 7. Second, the party making the
strike may then offer a race-neutral explanation. Id. That explanation "must
be more than a mere denial of improper motive, but it need not be
'persuasive, or even plausible.'" Id. (quoting Purkett v. Elem, 514 U.S. 765,
768 (1995)). Third, if the striking party provides a race-neutral explanation,
the trial court must decide whether the party challenging the strike has
sustained their burden of proving purposeful racial discrimination. Purkett,
514 U.S. at 767-68. That is, the party challenging the strike must persuade
the trial court that the proffered race-neutral explanation is pretextual. State
v. Gay, 214 Ariz. 214, 220, ¶ 17 (App. 2007). During this step, the superior
court assesses the credibility of the State's proffered explanation,
considering factors such as the State's "demeanor; . . . how reasonable, or
how improbable, the explanations are; and . . . whether the proffered
rationale has some basis in accepted trial strategy." Id. (alterations in
original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 339 (2003)).

¶8            During jury selection, Oviedo challenged the State's
peremptory strike of Juror 1. Asserting the objection, Oviedo pointed out
that Juror 1 was

       the only African American male on the panel. He's by far the
       darkest person on this panel. There is no information we
       learned about him that would cause him to be seen as unfair


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                             STATE v. OVIEDO
                            Decision of the Court

       to either party. He raised his hands to almost no questions
       other than having a sister who studied law . . . that's the only
       information he gave us other than basic demographic
       information. He's never served on a jury, and that he has a
       fairly routine job.

Oviedo further stated that because of this, the State could not provide a
"race neutral explanation here."

¶9             The superior court asked the State—out of "an abundance of
caution"—to provide an explanation for striking Juror 1, presumably
concluding that Oviedo had established a prima facie case of discrimination
and satisfied the first step of the Batson procedure. See State v. Newell, 212
Ariz. 389, 401, ¶ 54 (2006) ("The first step of the Batson analysis is complete
when the trial court requests an explanation for the peremptory strike.").
The court also noted that Juror 44—a second African American juror,
however female—was picked to be on the panel. The State offered the
following reasons for striking Juror 1: (1) he is "single" while the "victims in
this case are married"; (2) he does not have any children whereas the victims
do have children; and (3) he is "around 22 years old" and "lacks [life]
experience."

¶10           In response, Oviedo conceded that the State's reasons were
"race neutral," but argued the following:

       The problem is there are many, many other young people on
       this panel that were not struck, and I did not write down how
       many kids everyone had. That wasn't a concern of mine.

       I can't tell you who they were. I believe there were other
       individuals with no children that were not struck as well.

Oviedo further stated that although Juror 1 is one of only two African
Americans on the panel, he is the only "African American male" and is "by
far the darkest person on th[e] panel."

¶11           Denying Oviedo's Batson challenge, the court stated that
"most of the jurors . . . appeared older" than Juror 1 and that only "one
individual" did not have children and another lived with "four roommates,
single, with no kids." The court also stated that "by the same token," the
State proffered a race-neutral explanation and "allow[ed] the strike to
stand." After the State had proffered a race-neutral reason for the strike,
Oviedo bore the burden of demonstrating that the strike resulted from
purposeful racial discrimination. Purkett, 514 U.S. at 768. Oviedo's


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                              STATE v. OVIEDO
                             Decision of the Court

response to the superior court "offered no evidence, other than inference,"
of purposeful racial discrimination. See Newell, 212 Ariz. at 402, ¶ 58.
Because Oviedo did not direct the trial judge to specific jurors alleged to be
similarly situated, provide the prosecutor the opportunity to explain any
differences or clarify which factors may have predominated, nor give the
superior court the opportunity to conduct an in-depth comparison, his
claim must fail. See State v. Medina, 232 Ariz. 391, 405, ¶ 49 (2013) ("We
decline to examine more detailed comparisons than were alleged at trial.").

¶12            On appeal, Oviedo attempts to correct this deficiency and
argues that the State's explanation was "neither plausible nor credible"
because the State struck "the only male African American juror but did not
use [] strikes on four other jurors who had the same characteristics of being
either single, or childless, or both." He asserts that the reasons given by the
State were "pretextual" considering "similarly situated jurors who were not
African American" were selected. He states that Jurors 1, 14, 36, and 37 "did
not have children," Jurors 1, 2, 36, and 37 "indicated they were single," and
Jurors 2, 14, 36, and 37 were all impaneled and sworn in.

¶13            Even if we overlook the failure to provide this comparison at
the superior court, the record does not support Oviedo's assertions about
the other jurors. During jury selection, only Jurors 1 and 37 stated that they
were, in fact, childless. Juror 2 stated that he had two adult children. Juror
14 stated that he was married but did not state whether he had children.
Juror 36 said that she was single, but also stated that she had a live-in
boyfriend and did not indicate whether she had children. Thus, the only
juror to which Oviedo can point to show a similarly-situated impaneled
juror is Juror 37. That juror, however, stated that he or she had four
roommates and "currently identified as single"—potentially indicating a
prior marriage.

¶14             In light of this record, the superior court did not err by finding
that Oviedo failed to meet his burden. The court explicitly stated that Juror
1 appeared to be younger than the other jurors and correctly identified Juror
37 as the only other potential juror who had expressly disclaimed any
children. Courts have repeatedly affirmed youth or immaturity of a
prospective juror as a rational non-pretextual explanation for the use of a
strike. See State v. Sanderson, 182 Ariz. 534, 540 (App. 1995) ("Prospective
jurors' age, marital status and lack of employment have been identified as
non-discriminatory reasons supporting the exercise of peremptory
strikes.") (citing United States v. McCoy, 848 F.2d 743, 745 (6th Cir. 1988)); see
also Rice v. Collins, 546 U.S. 333, 341 (2006) ("It is not unreasonable to believe
the prosecutor remained worried that a young person with few ties to the


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                             STATE v. OVIEDO
                            Decision of the Court

community might be less willing than an older, more permanent resident
to impose a lengthy sentence for possessing a small amount of a controlled
substance."); United States v. Vega, 450 F. App'x 844, 848 (11th Cir. 2012)
(unpublished) (affirming where the prosecution "believed that younger
jurors would be influenced by 'popular media and television' shows in
expecting evidence to be clear cut"); United States v. Jackson, 914 F.2d 1050,
1052 (8th Cir. 1990) (finding decision to strike juror for being "young, single,
[and] unemployed" and thus not having "a better understanding of life" was
"neutral and not pretextual"); Cobb v. State, 825 So.2d 1080, 1082, 1085 (Fla.
Dist. Ct. App. 2002) (affirming use of strike where prosecutor "explained
that, based on her experience as a juvenile prosecutor, she believed younger
people were more tolerant of drugs"); Harley v. State, 671 A.2d 15, 19 (Md.
1996) (affirming where the prosecutor "explained that, as a general rule, she
preferred to seat jurors who are over thirty years old and married" because
they are "generally more 'stable' and therefore more 'state-oriented'"). Thus,
striking younger jurors has at least some basis in "accepted trial strategy."
Gay, 214 Ariz. at 220, ¶ 17. In this light, the superior court was in the best
position to evaluate the sincerity of the race-neutral reasons proffered by
the State, see Newell, 212 Ariz. at 401, ¶ 54, and determine whether Oviedo
had met his burden of proving purposeful racial discrimination, see Purkett,
514 U.S. at 767-68. Because the "[superior] court's finding is entitled to great
deference," State v. Butler, 230 Ariz. 465, 475, ¶ 40 (App. 2012), we must defer
to those determinations here.

                               CONCLUSION

¶15           For the foregoing reasons, we affirm Oviedo's convictions and
sentences.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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