      [Cite as State v. Singer, 2019-Ohio-1922.]




                          IN THE COURT OF APPEALS OF OHIO
                              SIXTH APPELLATE DISTRICT
                                   LUCAS COUNTY


State of Ohio                                          Court of Appeals No. L-17-1309

      Appellee                                         Trial Court No. CR0201701494

v.

Terrence L. Singer                                     DECISION AND JUDGMENT

      Appellant                                        Decided: May 17, 2019

                                                   *****

      Julia R. Bates, Lucas County Prosecuting Attorney, and
      Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

      Karin L. Coble, for appellant.

                                                   *****
      ZMUDA, J.

                                           I. Introduction

      {¶ 1} Appellant, Terrence Singer, appeals the judgment of the Lucas County Court

of Common Pleas, sentencing him to 20 years to life in prison after a jury found him

guilty of murder. Finding prejudicial error in the proceedings below, we reverse.
                          A. Facts and Procedural Background

       {¶ 2} On March 15, 2017, appellant was indicted on one count of murder in

violation of R.C. 2903.02(B) and R.C. 2929.02, an unspecified felony, and one count of

aggravated robbery in violation of R.C. 2911.01(A)(1) and (C), a felony of the first

degree. Additionally, the indictment contained repeat violent offender specifications

attached to each count under R.C. 2941.149.

       {¶ 3} On March 22, 2017, appellant entered a plea of not guilty by reason of

insanity, and requested a bill of particulars along with discovery. Thereafter, the trial

court held a hearing on appellant’s insanity plea, during which a Court Diagnostic and

Treatment report was admitted into evidence. At appellant’s request, the trial court

referred him to Central Behavioral Healthcare for a second evaluation under R.C.

2945.371(G)(4). Following the completion of the second evaluation, appellant withdrew

his insanity plea and entered a plea of not guilty.

       {¶ 4} On July 6, 2017, the state provided appellant with a bill of particulars, in

which the state asserted that appellant stabbed the victim, Thomas Cauley, in the chest

with a large butcher knife, causing serious injuries to which Cauley eventually

succumbed. The state further asserted that appellant took property from Cauley

following the stabbing. The bill of particulars explained that Cauley’s death was the

proximate result of appellant’s commission of felonious assault in violation of R.C.

2903.11(A)(2), and therefore amounted to felony murder under R.C. 2903.02(B).




2.
Moreover, the bill of particulars referenced appellant’s April 29, 2005 conviction for

aggravated robbery in support of the repeat violent offender specifications.1

       {¶ 5} Following the completion of pretrial discovery, the matter proceeded to a

two-day jury trial.2 During voir dire, an issue arose concerning the state’s election to use

one of its peremptory challenges to strike the only African-American juror, juror No. 5,

from the venire, which prompted the following discussion:

              [DEFENSE COUNSEL]: You Honor, we would challenge that

       based on Batson. She’s the only African American on the panel and Mr.

       Singer is an African American.

              THE COURT: [Prosecutor?]

              [PROSECUTOR]: Judge, I don’t know whether or not she’s

       African-American or not. Her complexion is certainly not that that’s

       absolutely definitive. Regardless, the State is excusing her because of her

       age.

              THE COURT: Okay.




1
 The bill of particulars was later amended to include a reference to appellant’s conviction
for attempted robbery from January 1993.
2
  Prior to trial, on August 7, 2017, appellant was indicted on one count of intimidation of
a witness in violation of R.C. 2921.03(A) and (B), a felony of the third degree, in case
No. CR0201702350. That case was joined with the present case for purposes of trial.
The intimidation charge was subsequently dismissed by the trial court at the close of the
state’s case-in-chief under Crim.R. 29.
3.
            [DEFENSE COUNSEL]: Your Honor, I don’t believe there [were]

     any questions regarding her age.

            [PROSECUTOR]: It’s pretty obvious that she’s very young.

            THE COURT: Well, then whether she’s African-American or not,

     might be open to some debate, but it appears that perhaps she’s a light-

     skinned African-American. [Defense counsel is] correct that there was not

     a direct question regarding her age, but she certainly looks to all

     appearances as if she’s on the younger age of the spectrum or younger side

     of the spectrum. Do you have any other – and Mr. Singer is an African-

     American gentleman. So they are of the same race.

            Any other reason you can provide to the court for that strike other

     than her apparent youthful appearance?

            [PROSECUTOR]: I think her youthful appearance is more apparent

     than her race and in this particular matter, the color hair, her youthful

     appearance and her seemingly lack of education based upon her

     employment as a custodian at [the University of Toledo Medical Center]

     are all race neutral reasons for excusing [juror No. 5].

            [DEFENSE COUNSEL]: Judge, I would just indicate, you know,

     her occupation has nothing to do with her level of education, even though

     she might appear to be young. There are a lot of people with college

     degrees that are working in janitorial positions nowadays due to the



4.
       economy. She was asked no questions. She’s qualified to be a juror, she

       was obviously old enough to be on the voting rolls to be selected for jury.

              THE COURT: Uh-huh. Okay. Thank you. Well, the court’s

       certainly reviewed Batson and aware of the test. It does appear that as I

       said [juror No. 5] is perhaps at some degree African-American. Again,

       she’s a lighter-skinned young lady.

              I don’t believe we have any other African-Americans currently on

       the panel. However, the gallery, we still have at least one or two.

              ***

              THE COURT: So I have not yet seen any pattern of dismissal of

       African-American jurors. I don’t detect any bad faith or any other

       untoward basis for [the prosecutor’s] peremptory excusal of [juror No. 5] so

       I’m going to overrule the Batson challenge and [juror no. 5] will be

       excused.

       {¶ 6} After the court overruled appellant’s Batson challenge, the matter proceeded

through voir dire and into the state’s presentation of evidence. At the conclusion of the

trial, the jury found appellant guilty of murder. The trial court received arguments

relevant to the repeat violent offender specification, and ultimately concluded that the

repeat violent specification was established based upon the prior offenses of violence

appellant had committed over the preceding 20 years. Thereafter, the matter proceeded

to sentencing, at which the trial court imposed a prison sentence of 15 years to life on the



5.
murder charge, as well as a five-year sentence on the repeat violent offender

specification, to be served consecutive to the murder sentence, for a total prison sentence

of 20 years to life.

                                 B. Assignments of Error

       {¶ 7} Following his conviction, appellant entered a timely notice of appeal. On

appeal, appellant assigns the following errors for our review:

               Assignment of Error One: The trial court erred in overruling

       appellant’s Batson challenge to the State’s peremptory dismissal of the only

       African-American juror on the panel.

               Assignment of Error Two: The trial court erred in refusing to give

       jury instructions on the lesser-included offense of voluntary manslaughter.

               Assignment of Error Three: Trial counsel rendered ineffective

       assistance in failing to request a self-defense instruction as the “castle

       doctrine” applied.

               Assignment of Error Four: Appellant’s conviction is against the

       manifest weight of the evidence, and appellant is entitled to a new trial.

                                            II. Analysis

       {¶ 8} In his first assignment of error, appellant argues that the trial court erred in

permitting the state to use one of its peremptory challenges to strike juror No. 5, the only

African-American juror on the venire.

       {¶ 9} In 1875, Congress prohibited the race-based exclusion of any qualified

citizen from jury service. See Act of Mar. 1, 1875, ch. 114, Section 4, 18 Stat. 336

6.
(codified as amended at Section 243, Title 18, U.S. Code [1948]). Four years later, the

Supreme Court of the United States held that a state statute excluding African-Americans

from jury service violated a defendant’s right to equal protection. Strauder v. West

Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). Over time, the court continued to issue

decisions directed at “[eradicating racial discrimination in the procedures used to select

the venire from which individual jurors are drawn.” Batson v. Kentucky, 476 U.S. 79, 85,

106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

       {¶ 10} Despite the court’s attempts to address discrimination in the selection of the

venire, “prospective African-American jurors continued to be excluded from [petit] jury

panels through the use of peremptory challenges.” State v. Gowdy, 88 Ohio St.3d 387,

391, 727 N.E.2d 579 (2000), citing Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13

L.Ed. 2d 759 (1965). Thus, in 1986, the court issued its decision in Batson, which

applied the principles annunciated by the court regarding the selection of the venire to the

selection of the petit jury. Batson at 88. In so doing, the court directed that “the State

may not draw up its jury lists pursuant to neutral procedures but then resort to

discrimination at ‘other stages in the selection process.’” Id., quoting Avery v. Georgia,

345 U.S. 559, 562, 73 S.Ct. 891, 97 L.Ed. 1244 (1953). The court went on to hold that

the Equal Protection Clause forbids prosecutors from challenging potential jurors solely

on account of their race or on the assumption that African-American jurors as a group

will be unable to impartially consider the state’s case against an African-American

defendant. Id. at 89.



7.
       {¶ 11} In Batson, the Supreme Court of the United States overruled its decision in

Swain, and held that racial discrimination in jury selection is prohibited.3 In Batson, the

court articulated a three-step analysis to be applied in determining whether the exercise of

a peremptory challenge was racially motivated. The Ohio Supreme Court applied this

analysis in Hicks v. Westinghouse Materials Co., 78 Ohio St.3d 95, 676 N.E.2d 872

(1997).

       {¶ 12} Under this analysis, the party opposing the peremptory challenge must first

demonstrate a prima facie case of racial discrimination in the use of the strike. State v.

Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 50, citing State v.

Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 106. To do this, the party

must show that he is a member of a cognizable racial group, that the peremptory

challenge will remove a member of his race from the venire, and that there is an inference

of racial discrimination. Hicks at 98. In determining whether a prima facie case exists,

the trial court must consider all relevant circumstances, including statements by counsel

exercising the peremptory challenge, counsel’s questions during voir dire, and whether a

pattern of strikes against minority venire members has been exhibited. Id.

       {¶ 13} Once the challenging party demonstrates a prima facie case of racial

discrimination, the burden shifts to the state in step two of the analysis, which requires




3
 The Supreme Court of the United States later extended Batson and held that the Equal
Protection Clause forbids intentional discrimination in the exercise of peremptory
challenges on the basis of gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 114
S.Ct. 1419, 128 L.Ed.2d 89 (1994).
8.
the state to articulate a race neutral explanation related to the case for striking the

potential juror. Id. Although the state’s explanation “‘need not rise to the level justifying

exercise of a challenge for cause,’” a simple affirmation of good faith is not sufficient.

Thompson at ¶ 51, quoting Batson at 97. If an affirmation of good faith were deemed

acceptable in these cases, “the Equal Protection Clause ‘would be but a vain and illusory

requirement.’” Batson at 98, quoting Norris v. Alabama, 294 U.S. 587, 598, 55 S.Ct.

579, 79 L.Ed. 1074 (1935). Ultimately, “[t]he critical issue is whether discriminatory

intent is inherent in counsel’s use of the strike and that the explanation is merely a pretext

for excluding the potential juror on the basis of race.” State v. Swain, 6th Dist. Erie No.

E-12-079, 2014-Ohio-1308, ¶ 18, citing Hicks at 98.

       {¶ 14} If the striking party articulates a race neutral explanation for striking the

potential juror, the third-step demands that the trial court “determine whether the party

opposing the peremptory strike has proved purposeful discrimination.” Hicks at 98. In

making its determination, the trial court must examine the persuasiveness and credibility

of the justification offered by the striking party. Swain at ¶ 19. “The critical question is

whether counsel’s race-neutral explanation should be believed.” Id., citing Hicks at 98.

“The ultimate burden of persuasion regarding racial motivation rests with, and never

shifts from, the opponent of the strike.” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct.

1769, 131 L.Ed.2d 834 (1995), citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502,

511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

       {¶ 15} The record in this case reveals that both appellant and juror No. 5 are

African-American. The trial court recognized this fact, requested the state to provide

9.
race neutral reasons for exercising its peremptory challenge, and proceeded to determine

whether appellant’s Batson challenge was meritorious. In similar situations, courts have

held:

               [I]t is not necessary to determine the first question of whether

        defendant made a prima facie showing of racial discrimination when a

        prosecutor has offered a race-neutral explanation for the peremptory

        challenges and the trial court has ruled on the ultimate question of

        intentional discrimination. In that circumstance, the preliminary issue of

        whether the defendant had made a prima facie showing becomes moot.

        State v. Ford, 10th Dist. Franklin No. 07AP-803, 2008-Ohio-4373, ¶ 79,

        citing Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114

        L.Ed.2d 395 (1991).

        {¶ 16} Because the trial court ruled on the ultimate issue of discrimination in this

case, the issue of whether appellant has made a prima facie showing of racial

discrimination is moot. Thus, we will move directly to an examination of the race neutral

bases articulated by the state.

        {¶ 17} In evaluating race neutrality in step two of the Batson analysis, we assume

the proffered reasons for the peremptory challenge are true, and consider whether such

reasons violate the Equal Protection Clause as a matter of law. Hernandez at 359. “A

neutral explanation in the context of our analysis here means an explanation based on

something other than the race of the juror. At this step of the inquiry, the issue is the

facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent

10.
in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Id. at

360. Notably, the second step of the Batson test “does not demand an explanation that is

persuasive, or even plausible.” Purkett at 768.

       {¶ 18} The race neutral reasons offered by the state to support its peremptory

challenge in this case were two-fold. First, the state asserted that it was excusing juror

No. 5 because of her age. Second, the state claimed, upon further questioning by the trial

court, that its peremptory challenge was motivated by juror No. 5’s apparent lack of

education. Age and education are race neutral elements and are not inherently

discriminatory.4 Indeed, the terms youthful and uneducated describe both African-

Americans and non-African-Americans. Assuming, as we must at this step of the

analysis, that the state was being truthful in asserting that youth and lack of education

formed the basis for its peremptory challenge, we find that the state has articulated a race

neutral explanation for striking juror No. 5. Consequently, we will move to the third and

final step in the Batson inquiry.

       {¶ 19} “In the typical peremptory challenge inquiry, the decisive question will be

whether counsel’s race-neutral explanation for a peremptory challenge should be

believed. There will seldom be much evidence bearing on that issue, and the best




4
  The state also referenced the color of juror No. 5’s hair when asked about the basis of
its peremptory challenge. It is unclear from the record whether the color of juror No. 5’s
hair was a standalone reason offered by the state to support its peremptory challenge. It
appears from the record that hair color was used to support the state’s assumption that
juror No. 5 was “very young.” In any event, the state’s reference to juror No. 5’s hair
color does not alter our analysis.
11.
evidence often will be the demeanor of the attorney who exercises the challenge.”

Hernandez, supra, 500 U.S. at 365, 111 S.Ct. 1859, 114 L.Ed.2d 395. Because the trial

judge’s findings in this step “‘largely turn on evaluation of credibility, a reviewing court

ordinarily should give those findings great deference.’” Id., quoting Batson, supra, 476

U.S. at 98, 106 S.Ct. 1712, 90 L.Ed.2d 69, fn. 21. Thus, we cannot overturn the trial

court’s finding on the issue of discriminatory intent without a showing of clear error.

Gowdy, supra, 88 Ohio St.3d at 394, 727 N.E.2d 579, citing Hernandez at 369.

       {¶ 20} In this case, the trial court, in rejecting appellant’s Batson challenge under

step three, made two findings. First, the court indicated that it had “not yet seen any

pattern of dismissal of African-American jurors.” Second, the trial court indicated that it

did not sense any bad faith or “untoward basis” for the state’s peremptory excusal of

juror No. 5.

       {¶ 21} On the issue of pattern under the first step of the Batson test, we have

previously held that “the defendant is not required to present evidence of a ‘systematic

pattern of peremptory strikes against minorities.’” State v. Swain, 6th Dist. Erie Nos. E-

11-087, E-11-088, 2013-Ohio-5900, ¶ 81, quoting State v. Graves, 6th Dist. Lucas No. L-

02-1053, 2003-Ohio-2359, ¶ 45. Our holding in Swain echoes the words of the Supreme

Court of Ohio, which has stated: “The existence of a pattern of discriminatory strikes is

not a prerequisite either to finding a prima facie case in step one of the Batson analysis or

to finding actual discrimination in step three.” State v. White, 85 Ohio St.3d 433, 436,

709 N.E.2d 140 (1999). The court in White went on to state the inevitable result of a rule

that would require the demonstration of a pattern of discriminatory strikes as a

12.
prerequisite to a successful Batson challenge: “Such a rule would license prosecutors to

exercise one illegal peremptory strike per trial. The law of equal protection does not

allow ‘one free bite.’” Id.

       {¶ 22} The foregoing authority establishes the error in the trial court’s reliance on

the absence of a pattern of peremptory strikes against African-Americans in this case.

This error is further elucidated by the fact that juror No. 5 was the only African-American

on the venire. Thus, a pattern of striking African-American jurors from the venire could

not be established in this case. Moreover, it is worth noting that juror No. 5 was the first

juror to be subject to a peremptory challenge in this case. This additional fact further

supports our conclusion that the trial court’s reliance on pattern was clearly erroneous in

this case. The establishment of a pattern of discrimination with respect to peremptory

challenges was logically impossible at this point because only one challenge had been

used. Therefore, the trial court’s first finding was clearly erroneous.

       {¶ 23} Next, we turn to the trial court’s determination that the prosecutor

exercised his peremptory challenge in good faith and without an “untoward basis.” In

essence, the trial court found that the prosecutor’s race-neutral references to age and lack

of education were believable and, thus, that appellant had failed to demonstrate the

explanation was merely pretextual and therefore discriminatory. Having reviewed the

record in its entirety, and mindful of the deference generally afforded to the trial court’s

Batson determination, we nonetheless disagree with the trial court’s finding concerning

appellant’s proof of discrimination.



13.
       {¶ 24} In Ex parte Branch, 526 So.2d 609 (Ala.1987), the Supreme Court of

Alabama examined Batson and articulated “the procedures that [it believed] must be

followed to implement [Batson], the specific role of the trial judge in the process, and the

scope of appellate review of the trial court’s determination.” Id. at 616. Relevant here,

the court in Branch set forth the following factors that can be used to demonstrate that

counsel’s race-neutral reasons for exercising a peremptory challenge of an African-

American juror are merely sham or pretext:

              1. The reasons given are not related to the facts of the case.

              2. There was a lack of questioning to the challenged juror, or a lack

       of meaningful questions.

              3. Disparate treatment – persons with the same or similar

       characteristics as the challenged juror were not struck.

              4. Disparate examination of members of the venire; e.g., a question

       designed to provoke a certain response that is likely to disqualify the juror

       was asked to black jurors, but not to white jurors.

              5. The prosecutor, having 6 peremptory challenges, used 2 to

       remove the only 2 blacks remaining on the venire.

              6. An explanation based on a group bias where the group trait is not

       shown to apply to the challenged juror specifically. For instance, an

       assumption that teachers as a class are too liberal, without any specific




14.
       questions having been directed to the panel or the individual juror showing

       the potentially liberal nature of the challenged juror. (Citations omitted.)

       Id. at 624.

       {¶ 25} While the foregoing list is not binding on this court, having been articulated

by a court of another state, we nonetheless find it useful in guiding the court’s evaluation

of whether the race neutral reasons for striking juror No. 5 are pretextual. Indeed, this list

is the most succinct articulation we have found of what factors should be considered by a

trial court under the third prong of the Batson test. Thus, we will apply this list to the

facts of this case.

       {¶ 26} We consider the Branch factors above in their totality – therefore, no

individual Branch factor is dispositive. Moreover, the list of factors set forth in Branch

should not be construed to be exhaustive. Rather, these factors are illustrative of the

considerations that apply when evaluating a Batson claim under the third prong.

       {¶ 27} Our application of these factors appropriately balances our obligation to

conduct a meaningful review of the trial court’s Batson determination, while still

affording the trial court the deference to which it is entitled in these cases.

       {¶ 28} Under the first Branch factor, we consider whether age and lack of

education are related to the facts of this case. Relatedly, under the sixth Branch factor,

we consider the explanation provided by the prosecutor is support of his decision to strike

juror No. 5.

       {¶ 29} The first and sixth Branch factors are difficult to analyze in this case,

primarily because the prosecutor did not articulate how juror No. 5’s youthfulness or

15.
apparent lack of education impacted her ability to serve as a juror during the ensuing trial.

The Supreme Court of the United States in Batson addressed this issue when it stated that

“the prosecutor must give a ‘clear and reasonably specific’ explanation of his ‘legitimate

reasons’ for exercising the challenges,” and further directed that the prosecutor’s

explanation must be “related to the particular case to be tried.” Batson, supra, 476 U.S.

at 88, 106 S.Ct. 1712, 90 L.Ed.2d 69, fn. 20, quoting Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

       {¶ 30} Here, the prosecutor failed to provide any explanation as to why this case

required a juror with a certain degree of education or maturity. Further, the prosecutor

did not explore whether juror No. 5 possessed the group traits he associated with

youthfulness and lack of education. In that regard, this case is factually distinguishable

from the Supreme Court of Ohio’s decision in Hicks, supra. There, the peremptory

challenge of an African-American juror on the basis of a lack of education was permitted

after the trial judge directed counsel to explain their reasons for the peremptory

challenge. Counsel reasoned that the challenged juror

       is an unemployed woman who has a very limited educational background.

       This is a case that involves some technical issues and medical testimony.

       We’re concerned by the answers that we received yesterday that those

       issues require a certain level of education, a certain level of sophistication

       that may not be present in this particular juror.

Hicks, 78 Ohio St.3d at 96, 676 N.E.2d 872.



16.
       {¶ 31} On appeal to the Supreme Court of Ohio, the court affirmed the trial court’s

decision and found that counsel’s race-neutral concern about the juror’s ability to

understand the complexities of the case was supported by the juror’s responses to

questions posed during voir dire and her educational background. Id. at 100.

       {¶ 32} Under the second Branch factor, we consider the substance and quantity of

questions posed to juror No. 5 by the state. During voir dire, the prosecutor asked juror

No. 5 only one question, namely whether she had a problem with the fact that the state

did not have to prove appellant’s motive in order to establish his guilt. Juror No. 5

responded in the negative, indicating that she did not take issue with the legal principle

enunciated by the state. The prosecutor did not follow up with juror No. 5, nor did he

inquire into her age or her level of education. Moreover, appellant did not ask juror No. 5

any questions. Thus, juror No. 5’s employment as a custodian for the University of

Toledo Medical Center (which was brought to light by the trial court’s questioning of

juror No. 5) was the only information that was before the state at the time that it exercised

its peremptory challenge.

       {¶ 33} Notably, juror No. 5’s position as a custodian may indicate a lack of

advanced education, but it does not conclusively establish that fact. Working as a

custodian does not automatically translate into a lack of education, nor does it

demonstrate that one lacks a college degree. With no other educational information

before him, it stands to reason that the prosecutor would have probed further into juror




17.
No. 5’s educational history if he were truly concerned about a lack of education on the

jury. He failed to do so. On this record, we find that there was a lack of meaningful

questions asked of juror No. 5 by the state, a fact that suggests pretext.

       {¶ 34} Next, we consider the third Branch factor, whether juror No. 5 was treated

differently than others with the same or similar characteristics who were not struck by the

state. Our review of the voir dire reveals that the state exercised four peremptory

challenges in this case, including the challenge to juror No. 5. In addition to juror No. 5,

the state struck an attorney, a salesperson, and an individual who reported that she cleans

doctor’s offices. Based upon the state’s implicit linkage between occupation and

education, it is peculiar that certain other jurors were not challenged by the state. For

example, the jury that was ultimately empaneled included a carpenter, a receptionist, a

mechanic, an equipment operator, and an office assistant. Generally speaking, none of

these occupations require a college degree or advanced education. At first blush, which

is the only level of inquiry conducted by the state on the issue of education, it would

seem that these jurors have attained an educational level equivalent to juror No. 5, yet

they were empaneled and allowed to participate at trial.

       {¶ 35} We also question the sincerity of the state’s concern about the age of juror

No. 5. Indeed, no questions about age were asked of any juror, and no information

indicative of age was provided for at least eight of the 14 jurors that were selected, a fact

that suggests that the state was not truly concerned about age in this case. Viewed in this

light, such disparate treatment further suggests that the state’s asserted concern regarding

education was merely a pretext.

18.
       {¶ 36} Under the fourth Branch factor, we examine whether the prosecutor

disparately examined the members of the venire by asking questions designed to provoke

a disqualifying response from African-American jurors, while not asking those questions

to white jurors. As already noted, juror No. 5 was asked only one question by the

prosecutor during voir dire, which was whether she could find appellant guilty without

the state establishing appellant’s motive. That same question was posed to other jurors as

well. Consequently, we find that the prosecutor did not disparately examine the members

of the venire along racial lines as contemplated in number four above.

       {¶ 37} Turning to the fifth Branch factor, we note that the prosecutor used one of

his four peremptory challenges to strike the only African-American on the venire.

       {¶ 38} Having applied the six Branch factors to the case sub judice, we find the

record demonstrates that the prosecutor’s race-neutral reasons for striking juror No. 5,

namely age and lack of education, were merely pretexts used by the state to justify its

otherwise discriminatory peremptory challenge of juror No. 5. If age and education were

important considerations for the prosecutor here, it stands to reason that he would have

conducted some inquiry into those issues, particularly with juror No. 5. In State v.

Manns, 169 Ohio App.3d 687, 2006-Ohio-5802, 864 N.E.2d 657 (2d Dist.), the Second

District conducted a Batson analysis and emphasized that “[t]he State of Ohio must be

scrupulous in building a record which legitimately demonstrates their articulated

concern” regarding a stricken juror. Id. at ¶ 50. No such record was made in this case.




19.
        {¶ 39} In State v. Singfield, 9th Dist. Summit No. 16253, 1994 Ohio App. LEXIS

336 (Jan. 26, 1994), the prosecutor exercised a peremptory challenge to strike an African-

American female from the jury, allegedly because she had no children and managed a

pharmacy. The appellate court found these reasons to be pretexts, noting that four of the

Caucasian jurors that were impaneled had children, and rejecting the sincerity of the

prosecutor’s occupational reason because the “prosecutor did not attempt to specify how

[managing a pharmacy] could detrimentally influence the excluded venireperson

regarding the state’s case.” Id. at *11. The Ninth District went on to state: “While we

realize that it may be burdensome for a prosecutor to specifically articulate legitimate,

race-neutral reasons that are particular to the case which is to be tried when peremptorily

challenging minority venirepersons, we believe that such an explanation is what is

required in response to a challenge based on Batson and its progeny.” Id.

        {¶ 40} Similar to the prosecutor in Singfield, the prosecutor here not only failed to

conduct an inquiry into juror No. 5’s age and education, he also failed to provide any

explanation as to how age and education were even relevant to the jury selection process

in this case. On these facts, we find that the trial court clearly erred when it found that

appellant did not meet his burden in proving a Batson violation.

        {¶ 41} Accordingly, appellant’s first assignment of error is well-taken. Because

our findings with respect to appellant’s first assignment of error require this matter to be

remanded to the trial court for a new trial, appellant’s remaining assignments of error are

moot.



20.
                                     III. Conclusion

       {¶ 42} In light of the foregoing, the judgment of the Lucas County Court of

Common Pleas, is hereby reversed, and this matter is remanded to the trial court for a

new trial. The state is to pay the costs of this appeal pursuant to App.R. 24.



                                                                       Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowsk, J.                         _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
Gene A. Zmuda, J.                                           JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




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