[Cite as State v. Hawkins, 2018-Ohio-4649.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 1-18-08

        v.

QUINTEZ E. HAWKINS,                                      OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CR2017 0189

                                     Judgment Affirmed

                          Date of Decision: November 19, 2018




APPEARANCES:

        Carly M. Edelstein for Appellant

        Jana E. Emerick for Appellee
Case No. 1-18-08


PRESTON, J.

      {¶1} Defendant-appellant, Quintez E. Hawkins (“Hawkins”), appeals the

February 1, 2018 judgment entry of sentence of the Allen County Court of Common

Pleas. For the reasons that follow, we affirm.

      {¶2} This case arises from an April 26, 2017 armed robbery of a Walgreens

Pharmacy in Lima, Ohio. (See Dec. 18-20, 2017 Tr., Vol. I, at 204-209). Hawkins,

along with at least two accomplices, allegedly planned the robbery so that the group

could acquire oxycodone pills. (Id. at 204, 206). On the night of the robbery,

Hawkins entered the pharmacy and “cased” it. (Id. at 208). Hawkins then returned

outside to consult with his accomplices and informed them that the robbery was

“good to go.” (Id.). One of Hawkins’s accomplices then entered the pharmacy and

executed the robbery, after which the group fled. (Id. at 204-205). However, law

enforcement officers apprehended the group a short time later after they were

involved in a vehicular accident in Shelby County, Ohio. (Id. at 205-206).

      {¶3} On June 15, 2017, the Allen County Grand Jury indicted Hawkins on

one count of aggravated robbery in violation of R.C. 2911.01(A)(1), (C), a first-

degree felony. (Doc. No. 1). The indictment contained a firearm specification under

R.C. 2941.145(A). (Id.). On June 29, 2017, Hawkins appeared for arraignment and

pleaded not guilty. (Doc. No. 13).




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       {¶4} The case proceeded to a jury trial on December 18-20, 2017. (See Dec.

18-20, 2017 Tr., Vol. I, at 1); (Dec. 18-20, 2017 Tr., Vol. II, at 321); (Dec. 18-20,

2017 Tr., Vol. III, at 600). (See also Doc. No. 90). On December 20, 2017, the jury

found Hawkins guilty as to the count and specification in the indictment. (Doc. Nos.

85, 86). The trial court filed its judgment entry of conviction on December 21, 2017.

(Doc. No. 90).

       {¶5} On January 31, 2018, the trial court sentenced Hawkins to seven years

in prison for the aggravated robbery and three years in prison on the firearm

specification. (Doc. No. 99). The trial court ordered that those terms be served

consecutively for an aggregate term of ten years in prison. (Id.). The trial court also

granted Hawkins credit for 218 days served. (Id.). The trial court filed its judgment

entry of sentence on February 1, 2018. (Id.).

       {¶6} On February 20, 2018, Hawkins filed a notice of appeal. (Doc. No.

102). He raises two assignments of error.

                            Assignment of Error No. I

       The trial court’s decision to excuse a black juror after a Batson
       challenge is clearly erroneous when it fails to conduct the
       necessary Batson analysis and instead relies on impermissible
       factors without examining all of the relevant evidence. Fifth and
       Fourteenth Amendments, United States Constitution; Article I,
       Section 2, Ohio Constitution; Batson v. Kentucky, 476 U.S. 79, 106
       S.Ct. 1712, 90 L.Ed.2d 69 (1986). (Trial Tr. vol. 1, p. 146-154).




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       {¶7} In his first assignment of error, Hawkins, who is black, argues that the

trial court erred by overruling his objection to the State’s use of a peremptory

challenge to excuse B.E., a black potential juror, which objection Hawkins entered

under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986). In particular,

Hawkins argues that the trial court relied on impermissible factors and that it failed

to consider all relevant evidence when determining whether the State’s stated race-

neutral reasons for excusing B.E. were merely pretexts for racial discrimination. In

addition, Hawkins argues that he also raised a Batson objection to the State’s use of

a peremptory challenge to dismiss a different black prospective juror, T.M., and that

the trial court erred by failing to require the State to offer race-neutral reasons for

excusing T.M.

       {¶8} “‘In Batson v. Kentucky, the United States Supreme Court held that “the

Equal Protection Clause forbids the prosecutor to challenge potential jurors solely

on account of their race.”’” State v. Pope, 3d Dist. Marion No. 9-06-61, 2007-Ohio-

5485, ¶ 7, quoting State v. Douglas, 3d Dist. Marion No. 9-05-24, 2005-Ohio-6304,

¶ 28, quoting Batson at 89. “The Court stated that a defendant can demonstrate a

violation of his equal protection rights pursuant to the Fourteenth Amendment of

the United States Constitution by showing that the State’s use of peremptory

challenges at the defendant’s trial was used to intentionally exclude members of the




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defendant’s race.” State v. Evans, 3d Dist. Allen No. 1-10-22, 2010-Ohio-4813, ¶

6, citing Batson at 96.

       {¶9} “‘“A court adjudicates a Batson claim in three steps.”’” State v.

Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, ¶ 64, quoting State v. Bryan, 101

Ohio St.3d 272, 2004-Ohio-971, ¶ 106, quoting State v. Murphy, 91 Ohio St.3d 516,

528 (2001). “‘First, the opponent of the peremptory challenge must make a prima

facie case of racial discrimination.’” Id., quoting Bryan at ¶ 106, citing Batson at

96-98. At the first step of the Batson inquiry, the defendant is not required to

demonstrate that “the challenge was more likely than not the product of purposeful

discrimination.” Johnson v. California, 545 U.S. 162, 170-173, 125 S.Ct. 2410

(2005). “Instead, a defendant satisfies the requirements of Batson’s first step by

producing evidence sufficient to permit the trial judge to draw an inference that

discrimination has occurred.” Id. at 170.

       {¶10} “‘Second, if the trial court finds [a prima facie case of discrimination],

the proponent of the challenge must provide a racially neutral explanation for the

challenge.’” Frazier at ¶ 64, quoting Bryan at ¶ 106, citing Batson, 476 U.S. at 96-

98. At the second step of the inquiry, “‘the issue is the facial validity of the

prosecutor’s explanation.’” State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-

4751, ¶ 51, quoting Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859

(1991). While “it is not enough to simply deny a discriminatory motive or assert


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Case No. 1-18-08


good faith,” the “‘explanation need not rise to the level justifying exercise of a

challenge for cause.’” Id., quoting Batson at 97 and citing Batson at 98 and State v.

White, 85 Ohio St.3d 433, 437 (1999). “Accordingly, ‘“[u]nless 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, 768, 115 S.Ct. 1769

(1995), quoting Hernandez at 360.

       {¶11} Finally, in step three, “the trial court must decide, based on all the

circumstances, whether the opponent has proved purposeful racial discrimination.”

Frazier at ¶ 64, citing Batson at 98 and Purkett at 767. “In step three, the trial court

may not simply accept a proffered race-neutral reason at face value, but must

examine the prosecutor’s challenges in context to ensure that the reason is not

merely pretextual.” Id. at ¶ 65. “‘[T]he rule in Batson provides an opportunity to

the prosecutor to give the reason for striking the juror, and it requires the judge to

assess the plausibility of that reason in light of all evidence with a bearing on it.’”

Id., quoting Miller-El v. Dretke, 545 U.S. 231, 251-252, 125 S.Ct. 2317 (2005)

(“Miller-El II”). “However, * * * trial court[s] [are] not compelled to make detailed

factual findings to comply with Batson.” Id. at ¶ 98, citing Miller-El v. Cockrell,

537 U.S. 322, 347, 123 S.Ct. 1029 (2003) (“Miller-El I”) (in ruling on a Batson

challenge, “a state court need not make detailed findings addressing all the evidence

before it”). “If the trial court determines that the proffered reason is merely


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Case No. 1-18-08


pretextual and that a racial motive is in fact behind the challenge, the juror may not

be excluded.” Id. at ¶ 65, citing Miller-El II at 252.

       {¶12} “When reviewing an argument that the trial court should not have

accepted the grounds for the peremptory challenge, ‘[t]he finding of the trial court,

because it turns largely on the evaluation of credibility, is entitled to deference on

appeal and will not be reversed unless clearly erroneous.’” State v. Jones, 2d Dist.

Montgomery No. 26819, 2016-Ohio-5728, ¶ 8, quoting State v. Herring, 94 Ohio

St.3d 246, 257 (2002). See Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, at ¶ 64

(“A trial court’s finding of no discriminatory intent will not be reversed on appeal

unless clearly erroneous.”), citing State v. Hernandez, 63 Ohio St.3d 577, 583

(1992), following Hernandez, 500 U.S. at 368. “Under the clearly erroneous

standard of review, a reviewing court can only reverse if it is ‘left with the definite

and firm conviction that a mistake has been committed.’” State v. Williams, 8th

Dist. Cuyahoga No. 100488, 2014-Ohio-3138, ¶ 8, quoting Anderson v. Bessemer

City, 470 U.S. 564, 573, 105 S.Ct. 1504 (1985), citing United States v. U.S. Gypsum

Co., 333 U.S. 364, 395, 68 S.Ct. 525 (1948). See Snyder v. Louisiana, 552 U.S.

472, 477-479, 128 S.Ct. 1203 (2008) (noting that appellate courts employ a “highly

deferential standard of review” when evaluating trial courts’ resolutions of Batson

challenges).




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       {¶13} During voir dire in Hawkins’s trial, the State exercised three of its four

peremptory challenges. (See Dec. 18-20, 2017 Tr., Vol. I, at 103, 124, 142, 177).

First, the State dismissed T.M., a 54-year-old black female. (See id. at 103, 145-

147). (See also Juror No. 195 Questionnaire). Next, the State used its second

peremptory challenge to dismiss M.M., a 74-year-old white male. (See Dec. 18-20,

2017 Tr., Vol. I, at 124, 147, 151-153). (See also Juror No. 1002 Questionnaire).

Finally, the State used its third peremptory challenge to dismiss B.E., a 65-year-old

black female. (See Dec. 18-20, 2017 Tr., Vol. I, at 142, 145-148). (See also Juror

No. 109 Questionnaire). Once the State used its third peremptory challenge to

excuse B.E., Hawkins’s trial counsel challenged the strike under the United States

Supreme Court’s decision in Batson. Hawkins’s trial counsel stated:

       I * * * would note for the record that the other remaining jurors, except

       for [one remaining black male juror, L.S.], appear to be Caucasian

       Americans.

       So, at this point I suggest that a pattern of strikes based upon race, at

       least a prima facie showing, has been shown as we’ve had now two

       out of the four strikes by the State of Ohio for African Americans on

       the jury. And so I would raise a challenge to the strike, based upon

       Batson v. Kentucky * * *.




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         The Court’s aware of * * * the standard, but I think that we have at

         least reached I think the first prong of [the] Batson test that there’s a

         pattern. A pattern shown is based upon race by the fact that they are

         both African American that were used in preliminary [sic] challenges

         * * * not for cause. That at no time did the State move to have either

         of those two jurors removed for cause for any reason that was on the

         record and did not move to do that, so I think we’ve satisfied a pattern

         based upon race.

(Dec. 18-20, 2017 Tr., Vol. I, at 146). In response, the trial court “acknowledge[d]

that two of the three peremptory challenges appeared to [have] be[en] exercised

against African Americans.” (Id. at 147). As a result, the trial court concluded that

there “has been a prima facie case demonstrated.” (Id.).

         {¶14} The State then proceeded to give its race-neutral reasons for exercising

its third peremptory challenge against B.E.:

         [The State]:          * * * I just think it’s important to reflect for the

                               record that the second peremptory involved a * * *

         [Trial Court]:        Male white man.

         [The State]:          Yes * * * who by all appearances was a Caucasian

                               male of * * * 62 years of age.1


1
 The potential juror in question, M.M., was actually 74 years old. (See Dec. 18-20, 2017 Tr., Vol. I, at 151-
153). (See also Juror No. 1002 Questionnaire).

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Case No. 1-18-08


                       And I’m raising that because in terms of the State’s

                       race neutral reasons or reasons for exercising the

                       peremptory against [B.E.] that has been challenged,

                       I would note that on the juror questionnaire it

                       reflected that she is 65 years of age, for the similar

                       reason that I was interested in the peremptory

                       against [M.M.], who was our second peremptory at

                       62.

                       * * * [T]he State’s theory in this case is that the

                       evidence will be such, especially some of the

                       computerized and technical evidence relating to text

                       messaging, to phone extractions of data that were

                       done would be better received by a slightly younger

                       ***

      [Trial Court]:   Audience?

      [The State]:     [A]udience or jury.

      ***

      [The State]:     [A]lso, more importantly in the States [sic] decision

                       to exercise that peremptory against [B.E.], * * * she

                       indicated when asked about her initial reaction to the


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                         summons to come to court to serve as a potential

                         juror that * * * she was one that used nervous or

                         scared in describing that. And that trepidation or

                         hesitation is not something that the State is

                         necessarily fond of in a potential juror.

                         And then finally, and the biggest reason that the

                         State did not care for [B.E.] as a juror * * *, is that

                         she indicated that she has been a foster parent to

                         numerous children and we believe that that might

                         display an empathy towards younger, wayward

                         youth, perhaps a false sympathy for the young

                         defendant in this case that the State of Ohio did not

                         feel was appropriate.

(Id. at 147-149).

        {¶15} Thereafter, the trial court ruled on whether to accept the State’s

proffered race-neutral reasons for using its third peremptory challenge to excuse

B.E.:

        The Court’s understanding of the law is that the burden of persuasion

        with respect to the determination or neutrality lies with the movant.




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       The Court in this case has heard a minimum of three, but more likely

       in fair consideration, * * * four race neutral reasons as to why the

       excuse of the juror by virtue of the peremptory challenge should be

       allowed. So, the Court will go ahead and allow the challenge in this

       situation of [B.E.] And the Court would indicate that the age of this

       potential juror is such that the computer literacy is not as—what do I

       want to say—astute as that of younger individuals.

       Secondly, * * * similarly her age and particularly in comparing that

       situation to [M.M.] * * *

       ***

       So, I am also impressed with the circumstances associated with the

       nature she does of being a * * * foster parent for younger children who

       appear to be disadvantaged. And I think that there were obviously

       race neutral reasons for the decision by the prosecution to excuse her.

       She will be deemed excused.

(Id. at 150-151).

       {¶16} Hawkins does not argue either that the trial court erred by finding that

he established a prima facie case of discrimination or that the State failed to offer

race-neutral justifications for exercising its third peremptory challenge against B.E.

Rather, Hawkins’s argument turns solely on whether the trial court properly


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conducted the third step of the Batson inquiry. As a result, we limit our analysis to

that issue alone. See Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, at ¶ 62.

         {¶17} In determining whether the State’s race-neutral reasons for using a

peremptory challenge to strike a potential juror from the venire are merely

pretextual, the United States Supreme Court has identified several factors courts

should consider:

         (1) the bare statistics; (2) the similarity of answers to voir dire

         questions by African-American jurors who were peremptorily

         challenged and answers by non-African-American prospective jurors

         who were allowed to serve; (3) broader patterns of practice, including

         jury shuffling;2 (4) disparate questioning of African-American and

         non African-American jurors; and (5) evidence that the prosecutor’s

         office has historically discriminated against African-Americans in

         jury selection.

State v. Smith, 12th Dist. Butler No. CA2009-02-038, 2010-Ohio-1721, ¶ 87, citing

Miller-El II, 545 U.S. at 240-264 and Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048,

at ¶ 67.


2
  In Texas at the time of Miller-El’s trial, “during voir dire in * * * criminal case[s], either side [could]
literally reshuffle the cards bearing panel members’ names, thus rearranging the order in which members of
a venire [were] seated for questioning.” Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, at ¶ 67, fn. 1, citing
Miller-El II, 545 U.S. at 253. “Once the order [was] established, the panel members seated at the back [were]
likely to escape voir dire altogether * * *.” Miller-El II at 253. As a result, the State of Texas could
manipulate the likelihood that black jurors would be seated on the jury by rearranging the order of venire
questioning until few, if any, black prospective jurors remained seated in the front.

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       {¶18} Hawkins concedes that three of the factors identified by the United

States Supreme Court in Miller-El II are inapplicable to the instant case.

(Appellant’s Reply Brief at 2). The State did not employ practices such as jury

shuffling during the selection of Hawkins’s jury, and there is no evidence that the

Allen County prosecutor’s office has historically discriminated against black

potential jurors in the jury-selection process. See Frazier at ¶ 68. Moreover, an

examination of the transcript of the entire voir dire process does not reveal that the

State systematically asked black potential jurors different questions—either in tone

or in substance—than it asked non-black potential jurors. Thus, there is no evidence

of the type of disparate questioning present in Miller-El II. See id. at ¶ 70.

Nevertheless, Hawkins argues that the “bare statistics” as well as the similarities

between B.E. and non-black prospective jurors who were seated on the jury

demonstrate that the State’s race-neutral reasons for striking B.E. were merely

pretextual.

       {¶19} We conclude that Hawkins’s arguments are without merit and that the

trial court’s rejection of Hawkins’s Batson challenge is not clearly erroneous. First,

we conclude that the “bare statistics” do not support an inference that B.E. was

excluded from the jury because of her race. Although the record is largely silent on

the issue, from isolated statements of the parties made during the voir dire process

and from the parties’ appellate briefs, it appears that the jury pool for Hawkins’s


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Case No. 1-18-08


trial contained only three eligible black potential jurors: T.M., B.E., and L.S., a 61-

year-old black male. (See Dec. 18-20, 2017 Tr., Vol. I, at 145); (Appellant’s Brief

at 13-14); (Appellee’s Brief at 11-12). Of these three black prospective jurors, only

L.S. served on the jury in Hawkins’s trial. (See Doc. Nos. 85, 86). Thus, as far as

can be discerned from the available record, the State used its peremptory challenges

to excuse two-thirds of all black prospective jurors in the jury pool.

       {¶20} Yet, the “bare statistics” in this case are readily distinguishable from

those “remarkable” numbers in Miller-El II that supported the Supreme Court’s

conclusion that the State of Texas exercised its peremptory challenges in a

discriminatory fashion. In Miller-El II, “[o]ut of 20 black members of the 108-

person venire panel for Miller-El’s trial, only 1 served. Although 9 were excused

for cause or by agreement, 10 were peremptorily struck by the prosecution.” 545

U.S. at 240-241, citing Miller-El I, 537 U.S. at 331. “‘The prosecutors used their

peremptory strikes to exclude 91% of the eligible African-American venire

members * * *.’” Id. at 241, quoting Miller-El I at 342. The Supreme Court

concluded that “‘[h]appenstance [was] unlikely to produce this disparity.’” Id.,

quoting Miller-El I at 342.

       {¶21} In contrast, the “bare statistics” in this case are not nearly as alarming

as those in Miller-El II. Indeed, two-thirds of the black prospective jurors present

for jury duty were dismissed by the State through the use of peremptory challenges.


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However, T.M., B.E., and L.S. were apparently the only three black potential jurors

out of the 54 potential jurors that returned their juror questionnaires. Thus, the

relative scarcity of black jurors on Hawkins’s jury could have resulted from the

small number of black prospective jurors randomly selected for the original jury

pool. See Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, at ¶ 69 (concluding that

Frazier’s Batson claims were not supported by the “bare statistics” where only 6

black potential jurors were in the original jury pool of 86 and only 3 black potential

jurors were in the final jury pool of 44). See also State v. Frazier, 9th Dist. Summit

No. 25338, 2011-Ohio-3189, ¶ 34; Smith, 2010-Ohio-1721, at ¶ 89; State v. Hunter,

2d Dist. Montgomery No. 22201, 2008-Ohio-2887, ¶ 19.

       {¶22} Secondly, although we recognize a number of important similarities

between B.E. and some of the potential jurors who ultimately served on the jury, we

conclude that these similarities do not definitively show that the State’s race-neutral

reasons for excusing B.E. were pretextual. Furthermore, at least with regard to the

State’s third race-neutral reason for excusing B.E., there were meaningful

differences between B.E. and the other potential jurors.

       {¶23} The State’s first race-neutral reason for exercising a peremptory

challenge against B.E. was that the State intended to present “computerized and

technical” evidence against Hawkins and that it believed that this evidence would

be better received by a younger audience; as a result, the State felt that B.E.—at 65


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years old—was ill suited to evaluate this evidence. (Dec. 18-20, 2017 Tr., Vol. I, at

147-148). To bolster this justification further, the State noted that it relied on a

similar reason to dismiss 74-year-old M.M. (Id.). However, unlike M.M.—who,

during voir dire, stated that he does not use the internet, own a computer, or have a

smartphone—B.E. did not express an unfamiliarity with newer technologies. (See

id. at 67-68, 78-79). Notably, when Hawkins’s trial counsel asked the entire venire

whether any of them did not use the internet, B.E. did not respond. (Id. at 67). Thus,

it appears that the State’s alleged concerns about B.E.’s technological aptitude arose

entirely from its belief that B.E.’s age correlated negatively with a capacity to

understand “computerized and technical” evidence. Yet, the final jury in Hawkins’s

trial featured four jurors aged 60 to 63. (See Juror No. 546 Questionnaire); (Juror

No. 574 Questionnaire); (Juror No. 669 Questionnaire); (Juror No. 565

Questionnaire). Furthermore, one of the alternate jurors was 68 years old. (See

Juror No. 721 Questionnaire). The final jury, including alternate jurors, featured

five people who were older than or of comparable age to B.E., and the State did not

seek to use any of its remaining peremptory challenges to excuse these potential

jurors on account of their ages.

       {¶24} Additionally, the State’s second race-neutral reason for exercising a

peremptory challenge against B.E.—her nervousness or trepidation at being called

to serve on the jury—could apply similarly to at least one other potential juror who


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was eventually seated on Hawkins’s jury. During direct questioning at voir dire, the

following exchange took place between the State and B.E.:

       [The State]:     What did you think about the concept of jury duty

                        and having to come in here today?

       [B.E.]:          Scared

       ***

       [The State]:     Scared about the unknown, not knowing?

       [B.E.]:          Right.

       [The State]:     * * * What made you kind of nervous or anxious

                        about it?

       [B.E.]:          Just coming into the courtroom.

       [The State]:     * * * Now that you’re here[,] are you feeling a little

                        bit more comfortable?

       [B.E.]:          About as comfortable as I can get.

       [The State]:     * * * Is there anything about the reaction that you

                        had to possibly serving on a jury that you feel would

                        overwhelm you to the extent that you couldn’t be

                        fair or impartial?

       [B.E.]:          No.




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Case No. 1-18-08


       [The State]:     * * * So, notwithstanding some trepidation about,

                        some hesitancy about what to expect[,] you’re

                        willing to, if seated, to follow the oath, listen to the

                        evidence, evaluate the testimony and reach a fair

                        decision under the law * * *?

       [B.E.]:          I can do that.

(Dec. 18-20, 2017 Tr., Vol. I, at 45-47). Later, when questioning a different

potential juror, the State asked: “What was your general reaction when you got

called for jury duty?” (Id. at 107). Eventually, that juror stated that she was “just

nervous” as she had “never done this before * * *.” (Id. at 108). However, in

contrast to its questioning of B.E., the State did not inquire further to determine

whether this juror could be fair and impartial despite her nervousness. (See id. at

108-109).

       {¶25} With regard to these similarities between B.E. and the potential jurors

who were permitted to serve on the jury, Hawkins argues that if “a prosecutor’s

proffered reason for striking a black panelist applies just as well to an otherwise-

similar nonblack who is permitted to serve, that is evidence tending to prove

purposeful discrimination to be considered at Batson’s third step.” Miller-El II, 545

U.S. at 241, citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147,

120 S.Ct. 2097 (2000). However, while courts can consider the extent to which the


                                         -19-
Case No. 1-18-08


State’s race-neutral reasons also apply to potential jurors against whom the State did

not exercise peremptory challenges, such similarities are not necessarily conclusive

proof that the State’s proffered race-neutral justifications are pretextual. See State

v. Massalay, 10th Dist. Franklin No. 15AP-544, 2016-Ohio-779, ¶ 52 (noting that

although “statistics of peremptory challenges used to strike African-American

venire members,” another one of the factors identified in Miller-El II, “is evidence

of purposeful discrimination, it is not conclusive”). Instead, such similarities are

just one fact to be considered by the trial court in determining the plausibility of the

State’s race-neutral reasons “in light of all evidence with a bearing on it.” Miller-

El II at 252. Here, the similarities between B.E. and the other potential jurors who

eventually served on the jury in Hawkins’s trial do not demand a finding of pretext,

especially considering the relevant differences between B.E. and other jurors and

additional factors negating an inference of discrimination.

       {¶26} Importantly, as to the State’s third, and professed “biggest,” reason

that it “did not care for [B.E.] as a juror,” B.E.’s experience as a foster parent is not

matched by any other potential juror. On her juror questionnaire, B.E. listed “Foster

Parent” as her occupation. (See Juror No. 109 Questionnaire). In addition, the

following exchange took place between B.E. and Hawkins’s trial counsel:

       [B.E.]:               * * * I need to stop agreeing to take a lot of

                             children in. I’m a foster parent.


                                          -20-
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      [Defense Counsel]: Okay. A lot of hard work.

      [B.E.]:              Yes.

      [Defense Counsel]: Emotional hard work too, right?

      [B.E.]:              Yes.

      [Defense Counsel]: Okay. Taking in kids that have been in troubled

                           backgrounds and environments, things like that?

      [B.E.]:              And parents.

      [Defense Counsel]: And parents too?

      [B.E.]:              Yes.

      [Defense Counsel]: Did you take all ages or usually younger kids * *

                           *?

      [B.E.]:              It’s usually a mixture, usually newborns to five,

                           but we’ve taken a couple of teenagers * * *

      [Defense Counsel]: That’s not as easy.

      [B.E.]:              * * * [D]on’t take them no more.

(Dec. 18-20, 2017 Tr., Vol. I, at 93-94). Therefore, the record supports that B.E.

had a history of taking in children from “troubled” backgrounds and that some of

them were teenagers. However, Hawkins argues that other potential jurors had

children and that, as a result, they could also have expressed “false sympathy”

towards him because of their experiences with their own children. Nevertheless,


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the relevant distinction between B.E. and these other jurors is that B.E. had specific

experience with children from potentially troubled backgrounds, not that she had

experience with children in general. There is no indication in the record that any of

the other jurors had comparable experiences with fostering teenagers from such

backgrounds, and thus, as to the State’s third race-neutral reason, B.E. is dissimilar

from the other jurors.

       {¶27} Finally, at least one other factor militates against a finding that the

State’s proffered race-neutral reasons for excusing B.E. were simply excuses for

unlawful discrimination. Although T.M. and B.E. were excluded from the jury, the

jury in Hawkins’s trial was not entirely bereft of black jurors. As noted above, L.S.,

a 61-year-old black male, served on the jury in Hawkins’s trial. Hawkins correctly

notes that “[t]he exercise of even one peremptory challenge in a purposefully

discriminatory manner * * * violate[s] equal protection.” State v. Gowdy, 88 Ohio

St.3d 387, 393 (2000), citing White, 85 Ohio St.3d at 436. Thus, a trial court may

find that the State exercised a peremptory challenge in a discriminatory manner in

violation of Batson even when the final jury includes persons of the same race as

the improperly excluded potential juror. See id. However, while “[t]he presence of

African-Americans on a jury certainly does not preclude a finding of

discrimination,” “‘“the fact may be taken into account * * * as one that suggests that

the government did not seek to rid the jury of persons [of a particular] race.”’” State


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v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, ¶ 92, quoting White at 438,

quoting United States v. Young-Bey, 893 F.2d 178, 180 (8th Cir.1990); State v.

Were, 118 Ohio St.3d 448, 2008-Ohio-2762, ¶ 75. Here, the impaneled jury

included a black juror, L.S. In addition, the State only used three of its four

peremptory challenges. See Pickens at ¶ 92; Were at ¶ 75. Although L.S.’s presence

on the jury and the State’s failure to exercise its final peremptory challenge to

exclude L.S. would not alone defeat a claim of discriminatory intent, we conclude

that, when viewed in conjunction with the factors discussed above, these facts serve

to negate an inference of discriminatory intent.

       {¶28} In light of the foregoing discussion, we are not left with a definite and

firm conviction that the trial court mistakenly credited the State’s race-neutral

reasons for exercising a peremptory challenge against B.E. As a result, we conclude

that the trial court’s decision rejecting Hawkins’s Batson challenge is not clearly

erroneous.

       {¶29} In addition, we reject Hawkins’s second argument under his first

assignment of error. Hawkins argues that his trial counsel challenged the dismissal

of both T.M. and B.E. under Batson and that because the trial court found a prima

facie case of discrimination based on the State’s pattern of striking T.M. and B.E.,

the trial court erred by not requiring or allowing the State to provide race-neutral

reasons for using its first peremptory challenge to dismiss T.M. (Appellant’s Brief


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at 20-22). However, on a close reading of the relevant parts of the record, we

conclude that Hawkins’s trial counsel specifically objected only to the exclusion of

B.E. under Batson; Hawkins’s trial counsel did not object to T.M.’s exclusion. First,

Hawkins’s trial counsel only referenced T.M. in the context of his argument that

B.E. was improperly excluded from the venire because of her race; he did not

independently allege that T.M. was, herself, unconstitutionally excluded from the

jury pool. (See Dec. 18-20, 2017 Tr., Vol. I, at 145-147). Moreover, the State,

Hawkins’s trial counsel, and the trial court all spoke of Hawkins’s Batson objection

as concerning only a single strike, rather than as addressing multiple strikes. (See,

e.g., id. at 146) (“And so I would raise a challenge to the strike, based upon Batson

v. Kentucky * * *.”) (Emphasis added.). Finally, that Hawkins’s trial counsel did

not insist that the trial court ask the State to provide race-neutral reasons for using a

peremptory challenge to excuse T.M. implies that his Batson objection did not

extend to T.M. Thus, because Hawkins’s trial counsel did not lodge a Batson

objection to the State’s use of a peremptory challenge to dismiss T.M., the trial court

did not err by failing to require the State to provide race-neutral reasons for her

exclusion.

       {¶30} Hawkins’s first assignment of error is overruled.

                            Assignment of Error No. II

       Defense counsel provided ineffective assistance of counsel, in
       violation of the Sixth Amendment to the United States

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       Constitution and Article I, Section 10 of the Ohio Constitution.
       Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
       674 (1984). (Trial Tr. vol. 1, p. 146-154).

       {¶31} In his second assignment of error, Hawkins argues that he received

ineffective assistance of counsel. Specifically, Hawkins argues that he received

ineffective assistance of counsel because his trial counsel failed to raise a Batson

objection to the State’s use of a peremptory challenge to dismiss T.M.

       {¶32} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or

unreasonable, the defendant must overcome the presumption that counsel provided

competent representation and must show that counsel’s actions were not trial

strategies prompted by reasonable professional judgment.         Strickland at 689.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675

(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally

constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255 (1991).

Rather, the errors complained of must amount to a substantial violation of counsel’s




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essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142

(1989), citing State v. Lytle, 48 Ohio St.2d 391, 396 (1976).

       {¶33} Prejudice results when “‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability

is a probability sufficient to undermine confidence in the outcome.’” Id., quoting

Strickland at 694.

       {¶34} Hawkins’s ineffective assistance of counsel argument is without merit.

As discussed in detail under Hawkins’s first assignment of error, Hawkins’s trial

counsel did not properly raise a Batson objection to the State’s use of a peremptory

challenge to excuse T.M. As a result, the State was not afforded an opportunity to

offer any race-neutral reasons for excluding T.M. Accordingly, there is no way to

determine whether the State had race-neutral reasons for excusing T.M. or whether

the trial court would have accepted the State’s justifications, if any. See State v.

Burks, 10th Dist. Franklin No. 07AP-553, 2008-Ohio-2463, ¶ 57. In other words,

there is no conclusive means of proving that Hawkins would have been tried by a

different jury had his trial counsel properly raised a Batson objection to T.M.’s

dismissal. As this court previously observed:

       “We do not presume prejudice from a trial counsel’s failure to raise

       a Batson challenge, and, as here, without an adequate record, we


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       cannot properly consider on direct appeal a claim of ineffective

       assistance of counsel for a trial counsel’s failure to raise

       a Batson objection.”

State v. May, 3d Dist. Logan No. 8-11-19, 2012-Ohio-5128, ¶ 93, quoting Burks at

¶ 57, citing State v. Belcher, 10th Dist. Franklin No. 86AP-982, 1987 WL 17386

(Sept. 15, 1987). As we cannot properly consider the merits of Hawkins’s claim

from the inadequate record before us, we decline to address whether Hawkins’s trial

counsel’s failure to raise a Batson objection in relation to the State’s use of a

peremptory challenge to dismiss T.M. deprived Hawkins of the effective assistance

of counsel. See May at ¶ 93-95; State v. Lewis, 2d Dist. Montgomery No. 23850,

2011-Ohio-1411, ¶ 143; Burks at ¶ 57; State v. Whatley, 8th Dist. Cuyahoga No.

86267, 2006-Ohio-2465, ¶ 73-77 (McMonagle, J., concurring).

       {¶35} Hawkins’s second assignment of error is overruled.

       {¶36} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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