[Cite as State v. Bostick, 2013-Ohio-5784.]


STATE OF OHIO                      )                   IN THE COURT OF APPEALS
                                   )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                          C.A. No.       26880

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
ALVIN BOSTICK, SR.                                     COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 10 11 3115

                                  DECISION AND JOURNAL ENTRY

Dated: December 31, 2013



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Alvin Bostick, appeals from his convictions in the Summit

County Court of Common Pleas. This Court affirms.

                                                   I

        {¶2}     This Court set forth the facts underlying this matter in State v. Bostick, 9th Dist.

Summit No. 25853, 2012-Ohio-5048. After Bostick was convicted of felonious assault, two

counts of domestic violence, and a repeat violent offender (“RVO”) specification, he appealed

and argued that the trial court erred by refusing to instruct the jury on the lesser-included offense

of aggravated assault. This Court agreed and remanded the matter for further proceedings.

Bostick at ¶ 12-14. Upon remand, a second jury trial was conducted solely on the charge of

felonious assault. The jury rejected the lesser-included offense of aggravated assault and found

Bostick guilty of felonious assault.          The court then held a hearing on Bostick’s RVO
                                                2


specification and found him guilty of the specification. The court sentenced him to a total of 18

years in prison.

       {¶3}    Bostick now appeals and raises three assignments of error for our review. For

ease of analysis, we consolidate two of the assignments of error.

                                                II

                                Assignment of Error Number One

       THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
       OVERRULING HIS FIRST OBJECTION TO THE STATE’S USE OF ITS
       PEREMPTORY CHALLENGE TO EXCLUDE FEMALES AND NOT
       FOLLOWING THE PROCEDURE SET FORTH IN BATSON V. KENTUCKY
       IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO
       THE UNITED STATES CON-SITUTION (sic) AND SECTION 10, ARTICLE I
       OF THE OHIO CONSTITUTION.

                               Assignment of Error Number Two

       THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
       OVERRULING HIS SECOND OBJECTION TO THE STATE’S USE OF ITS
       PEREMPTORY CHALLENGE TO EXCLUDE FEMALES AND NOT
       FOLLOWING THE PROCEDURE SET FORTH IN BATSON V. KENTUCKY
       IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO
       THE UNITED STATES CON-SITUTION (sic) AND SECTION 10, ARTICLE I
       OF THE OHIO CONSTITUTION.

       {¶4}    In his first and second assignments of error, Bostick argues that the court erred by

overruling his objections to the State’s exercise of its peremptory challenges. Specifically, he

argues that the trial court failed to properly analyze the State’s proffered rationale for excusing

several female jurors. We disagree.

       {¶5}    “Although a prosecutor ordinarily is entitled to exercise permitted peremptory

challenges for any reason at all, as long as that reason is related to [her] view concerning the

outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge

potential jurors solely on account of their race[.]” State v. Payne, 9th Dist. Summit No. 26655,
                                                 3


2013-Ohio-5230, ¶ 19, quoting Batson v. Kentucky, 476 U.S. 79, 89 (1986). “[G]ender, like

race, is an unconstitutional proxy for juror competence and impartiality.” J.E.B. v. Alabama ex

rel. T.B., 511 U.S. 127, 129 (1994). Accordingly, the three-part test that the United States

Supreme Court devised in Batson to address race discrimination in jury selection has been

extended to gender discrimination as well. Id. at 144-145. Accord State v. Gowdy, 88 Ohio

St.3d 387, 392 (2000), fn. 2.

       {¶6}    “As with race-based Batson claims, a [defendant] alleging gender discrimination

must make a prima facie showing of intentional[]discrimination.” J.E.B. at 144. After the

defendant does so, the prosecution must provide a gender-neutral explanation for the peremptory

challenge. Id. at 144-145. The explanation “need not rise to the level of a ‘for cause’ challenge;

rather, it merely must be based on a juror characteristic other than gender, and the proffered

explanation may not be pretextual.” Id. at 145. See also Payne at ¶ 21, quoting Purkett v. Elem,

514 U.S. 765, 768 (1995) (“[T]he prosecution does not have to provide ‘an explanation that is

persuasive, or even plausible.’”). The court then “must determine whether, under all the relevant

circumstances, the defendant has met his burden of proving purposeful [gender] discrimination.”

Payne at ¶ 22, citing Batson at 96-97.

       {¶7}    Bostick acknowledges that the prosecutor provided the court with gender-neutral

explanations for the peremptory challenges she exercised, but argues that the court failed to

analyze the gender-neutral justification that the prosecutor offered. Specifically, he argues that

the court simply overruled his objections without “mak[ing] a deliberate decision whether

purposeful discrimination [had] occurred.”

       {¶8}    After a trial court receives a gender-neutral explanation from a prosecutor

regarding the exercise of a peremptory challenge, the trial court:
                                                4


       must consider the persuasiveness and credibility of the justification offered by the
       prosecution. It must determine whether the neutral explanation offered by the
       prosecution is credible or is instead a pretext for unconstitutional discrimination.
       The trial court’s finding turns largely on evaluations of credibility and is given
       great deference.

(Internal citations omitted.) Payne at ¶ 22. “A trial court’s finding that there was a lack of any

discriminatory intent on behalf of the State will not be reversed on appeal unless it was clearly

erroneous.” State v. Sykes, 9th Dist. Summit No. 25263, 2011-Ohio-293, ¶ 5.

       {¶9}    The prosecutor in this case exercised her peremptory challenges to remove three

women from the jury: Juror Number 5, Juror Number 9, and Juror Number 14. After the

prosecutor sought to excuse the second woman, Bostick objected on the basis that the prosecutor

was “systematically excluding women for no reason at all.” The prosecutor responded that she

had challenged the first juror, Juror Number 9, because that juror previously had been on a jury

she prosecuted and she could not remember if the trial had resulted in a not guilty verdict. The

prosecutor further responded that she had challenged the second juror, Juror Number 14, because

that juror “seemed very eager” toward defense counsel during voir dire and was “gushing all

over him” when he asked questions of her. The judge then indicated that Bostick’s objection did

not “resonate with [her]” and overruled it. Both Juror Number 9 and Juror Number 14 were

excused.

       {¶10} Bostick objected again when the prosecutor sought to excuse Juror Number 5.

The prosecutor responded that Juror Number 5 had said she was “a speech and language person,”

and it was her general practice to challenge “anyone who teaches or anyone in that field because

[she] [did not] want them judging how [she] talk[ed] at any time in [the] trial.” The judge then

once again indicated that Bostick’s objection was not “resonating with [her].” When Bostick

pressed the judge on the objection, the following exchange took place:
                                                  5


       THE COURT: She gave – she gave [a reason]. And she may not want someone
       judging her voice which does, at times, get rather loud.

       [THE PROSECUTOR:] I learned that from someone who trained me, yes.

       ***

       THE COURT: I’m telling you, [the objection is] not resonating with me, so
       overruled.

       [THE PROSECUTOR:] Just for the record, there would be one, two, three, four –
       five females on the jury left if this was followed through with this juror being
       struck.

       [DEFENSE COUNSEL]: It would [have been] eight.

       THE COURT: So we’ll note that.

The court then excused Juror Number 5.

       {¶11} The record reflects that the prosecutor offered gender-neutral explanations for her

peremptory challenges. Bostick has not argued that the record of the challenged juror’s answers

during voir dire does not factually support the explanations the prosecutor offered. For example,

Bostick does not argue that Juror Number 9 did not, in fact, state that she previously had been on

a jury with the prosecutor. Instead, he argues that the court’s response to his objections was not

sufficient to show that the court actually deliberated before ruling on whether purposeful

discrimination had occurred.

       {¶12} Although the trial court’s responses to Bostick’s objections were brief, Bostick

has not cited this Court to any law that requires a trial court to engage in an in-depth analysis on

the record before overruling a Batson/J.E.B. challenge.          See App.R. 16(A)(7).       We have

recognized that a “trial court is in the best position to judge the credibility of [an] attorney during

a Batson challenge.” State v. Jones, 9th Dist. Summit No. 22231, 2005-Ohio-1275, ¶ 29. The

prosecutor here gave specific, gender-neutral explanations for each of the peremptory challenges

she made. See Payne, 2013-Ohio-5230, at ¶ 21. “Unlike challenges for cause, a peremptory
                                                 6


challenge may be exercised for any [gender]-neutral reason.” (Emphasis sic.) State v. Moss, 9th

Dist. Summit No. 24511, 2009-Ohio-3866, ¶ 12. The trial court had the opportunity to listen to

the juror’s responses during voir dire and was in the best position to gauge the credibility of the

prosecutor. See Jones at ¶ 29. Having reviewed the record, we cannot conclude that the court

failed to apply Batson/J.E.B. or that its ruling was clearly erroneous. Bostick’s first and second

assignments of error are overruled.

                               Assignment of Error Number Three

       THE TRIAL COURT ERRED AS A MATTER OF LAW AND TO THE
       PREJUDICE OF APPELLANT’S RIGHT UNDER THE DUE PROCESS
       CLAUSE OF THE FOURTEENTH AMENDMENT TO THE U.S.
       CONSTITUTION BY ENTERING JUDGMENT OF CONVICTION AND
       SENTENCE UPON HIM FOR BEING A REPEAT VIOLENT OFFENDER IN
       THE ABSENCE OF A FINDING BY THE JURY BEYOND A REASONABLE
       (sic) THAT THE APPELLANT HAD A PRIOR CONVICTION FOR AN
       OFFENSE OF VIOLENCE.

       {¶13} In his third assignment of error, Bostick argues that his constitutional rights were

offended when the trial court, rather than the jury, found him guilty of his RVO specification.

We disagree.

       {¶14} R.C. 2941.149(B) provides that “[t]he court shall determine the issue of whether

an offender is a repeat violent offender.” If the court finds a defendant guilty of an RVO

specification, R.C. 2929.14 authorizes, and in some cases mandates, the court to sentence the

defendant to an additional definite prison term of one to ten years. R.C. 2929.14(B)(2)(a)-(b).

This Court, relying upon a decision from the Ohio Supreme Court, has held that no constitutional

violation occurs when a trial court, after “considering relevant information about the

[defendant’s] prior conviction that is part of the judicial record,” finds the defendant guilty of an

RVO specification and sentences him accordingly. State v. Dent, 9th Dist. Summit No. 23855,

2009-Ohio-5153, ¶ 10, quoting State v. Hunter, 123 Ohio St.3d 164, 2009-Ohio-4147, paragraph
                                                 7


two of the syllabus. Bostick acknowledges that the Ohio Supreme Court has upheld a “trial

court’s ability to find a defendant a repeat violent offender and enhance his penal sentence

accordingly,” but argues that Hunter is no longer good law in light of the United States Supreme

Court’s issuance of Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013).

       {¶15} In Alleyne, the United State Supreme Court rejected a prior distinction it had

made between mandatory minimum sentences and maximum sentences and held that “[a]ny fact

that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury

and found beyond a reasonable doubt.” Alleyne at 2155, overruling Harris v. United States, 536

U.S. 545 (2002). In doing so, the Court relied upon its rationale in Apprendi v. New Jersey, 530

U.S. 466 (2000), a case in which the Court held that juries must decide facts that increase

penalties beyond prescribed statutory maximums.         Even in Apprendi, however, the Court

specified that its holding did not encompass the fact of a prior conviction. Apprendi at 490

(“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.”) (Emphasis added.) The Supreme Court has since continued to acknowledge that the fact

of a prior conviction stands apart from other facts that may serve to increase a potential penalty.

See Alleyne at 2168, quoting Apprendi at 490; Oregon v. Ice, 555 U.S. 160, 163 (2009).

       {¶16} The Ohio Supreme Court has yet to consider Alleyne’s impact on Ohio’s

sentencing scheme. Our reading of Alleyne, however, leads us to conclude that a distinction

continues to exist between the fact of a prior conviction and other facts that serve to increase

criminal penalties. Under Hunter, “[a] trial court [does] not violate [a defendant’s] constitutional

rights or decisions of [the Ohio Supreme Court] or the United States Supreme Court by

designating him a repeat violent offender * * * and by imposing an enhanced penalty.” Hunter,
                                                 8


123 Ohio St.3d 164, 2009-Ohio-4147, at ¶ 40. “Unless and until the Ohio Supreme Court

revisits and reverses its holding in [Hunter], we are bound to follow the law as it currently

stands.”   State v. Nieves, 9th Dist. Lorain No. 08CA009500, 2009-Ohio-6374, ¶ 52.

Consequently, Bostick’s third assignment of error is overruled.

                                                III

       {¶17} Bostick’s assignments of error are overruled.         The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      BETH WHITMORE
                                                      FOR THE COURT
                                         9




CARR, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

DAVID M. WATSON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
