[Cite as State v. Davenport, 2011-Ohio-4635.]



          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 95911



                                    STATE OF OHIO
                                                PLAINTIFF-APPELLEE

                                                 vs.

                             DWAYNE DAVENPORT
                                                DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-520917

               BEFORE:             Blackmon, P.J., Celebrezze, J., and Jones, J.

               RELEASED AND JOURNALIZED:                      September 15, 2011
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                                       -i-

ATTORNEY FOR APPELLANT

Patrick E. Talty
20325 Center Ridge Road
Suite 512
Rocky River, Ohio 44116-4386


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Lauren Bell
Aaron Brockler
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, P.J.:

      {¶ 1} Appellant Dwayne Davenport appeals his convictions and assigns

the following errors for our review:

      “I. Defendant-Appellant was denied equal protection
      under the law when the judge of the trial court improperly
      denied defendant-appellant’s right to exercise a
      peremptory challenge to a juror.”
                                     3
     “II.       The     trial    court    erred    in   denying
     defendant-appellant’s motion for acquittal where the
     evidence is not sufficient to support conviction.”

     “III. The verdict of the jury finding defendant-appellant
     guilty is against the manifest weight of the evidence.”

     {¶ 2} Having reviewed the record and pertinent law, we affirm

Davenport’s convictions. The apposite facts follow.

     {¶ 3} On February 12, 2009, the Cuyahoga County Grand Jury indicted

Davenport with four counts of aggravated murder, with a felony murder

specification, one count of aggravated robbery, and one count of aggravated

burglary.    All six counts had one and three-year firearm specification

attached. Davenport pleaded not guilty at his arraignment, several pretrials

were conducted, and a jury trial was scheduled.       Prior to trial, the state

dismissed the felony murder specifications and one count of aggravated

murder.

                                    Jury Trial

     {¶ 4} At trial, the state presented the testimony of ten witnesses,

including Roderick Hairston, who testified that on January 16, 2009, he was

living at a boarding house in East Cleveland, Ohio, with three other boarders.

  Hairston    testified that boarders Omar Johnson and Charles Murphy

shared a bedroom, while boarders Michael Grisette and Hairston had their

own rooms.
                                     4

      {¶ 5} Shortly before noon, Myron McClutchen contacted Hairston and

offered to purchase drugs, but Hairston refused because McClutchen owed

him $50 from the last transaction. Hairston testified that a few minutes

later, McClutchen and Davenport appeared at the boarding house and were

admitted by Johnson.

      {¶ 6} Davenport pulled out a black semi-automatic handgun, stuck it in

Hairston’s face, and demanded money.       As Hairston was in the process of

emptying his pockets, he noticed that a third individual, Tommie Adams, who

had a black revolver, was also in the house.         Adams ordered Hairston to

hand over his “stash,” referring to his drugs, but he denied having any drugs.

      {¶ 7} Adams ordered Hairston at gunpoint upstairs towards his

bedroom, while McClutchen and Davenport followed behind. Adams entered

the bedroom, but McClutchen and Davenport remained in the hallway.

While Adams was searching the bedroom, Hairston observed Davenport kick

open the door to Grisette’s room and fire a single shot into the room, at which

point, all three men ran out the house.

      {¶ 8} Hairston subsequently alerted Johnson and Murphy that the men

had fled the house. Hairston testified that when they checked in Grisette’s

room, they found his dead body in a pool of blood.
                                      5

      {¶ 9} Davenport’s codefendant, McClutchen testified that on January

16, 2009, he went to purchase drugs from Hairston, but Adams pulled out a

revolver and Davenport pulled out a “glock” and proceeded to rob Hairston.

McClutchen testified that Adams and Davenport forced Hairston at gunpoint

upstairs to his room. McClutchen testified that Davenport kicked open the

door to one of the bedrooms, which was occupied by a man with a walker, and

then fired into the room.

      {¶ 10} McClutchen stated that they immediately fled after Davenport

fired into the bedroom. When the three met up later, Adams demanded to

know why Davenport had fired into the room, and Davenport responded that

he was going to shoot anything that moved.

      {¶ 11} Testimony      of   Adams,   Davenport’s   second   codefendant,

corroborated McClutchen’s testimony.        Adams, Mclutchen, and Davenport

went to the boarding house to rob Hairston. While Adams was in Hairston’s

bedroom searching for the drugs, he heard a single gunshot.              They

immediately fled and met up on the next street over. When Adams asked

Davenport why he had fired the shot, Davenport indicated that he was going

to shoot anything that moved.

      {¶ 12} The jury found Davenport guilty of the lesser offense of murder,

in Count 1, with the one-and three-year specifications attached, and guilty of
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the remaining four counts as charged in the indictment. On October 4, 2010,

the trial court sentenced Davenport to an aggregate prison term of 25 years to

life. Davenport now appeals.

                               Peremptory Challenge

         {¶ 13} In the first assigned error, Davenport argues the trial court

improperly denied his rights to exercise a peremptory challenge to a given

juror.

         {¶ 14} In Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90

L.Ed.2d 69, the United States Supreme Court held that purposeful

discrimination in the use of peremptory challenges to exclude members of a

minority group violates the Equal Protection Clause of the United States

Constitution.

         {¶ 15} Trial courts are to apply a three-step procedure for evaluating

claims of racial discrimination in peremptory challenges. State v. Frazier, 115

Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶64. First, the opponent of

the peremptory strike must make a prima facie case of racial discrimination.

Id. “To make a prima facie case of such purposeful discrimination, an accused

must demonstrate: (a) that members of a recognized racial group were

peremptorily challenged; and (b) that the facts and any other relevant

circumstances raise an inference that the prosecutor used the peremptory
                                      7

challenges to exclude jurors on account of their race.” State v. Hill (1995), 73

Ohio St.3d 433, 444-445, 653 N.E.2d 271.

      {¶ 16} Second, if the trial court finds that the opponent has set forth a

prima facie case, then the proponent of the strike must come forward with a

racially neutral explanation for the strike. State v. Bryan, 101 Ohio St.3d 272,

2004-Ohio-971, 804 N.E.2d 433, ¶106. The explanation need not rise to the

level justifying exercise of a challenge for cause. Id.

      {¶ 17} Third, “if the proponent puts forward a racially neutral

explanation, the trial court must decide, on the basis of all the circumstances,

whether the opponent has proved purposeful racial discrimination.” State v.

Herring, 94 Ohio St.3d 246, 256, 2002-Ohio-796, 762 N.E.2d 940. This final

step involves evaluating “the persuasiveness of the justification” proffered by

the prosecutor, but “the ultimate burden of persuasion regarding racial

motivation rests with, and never shifts from, the opponent of the strike.”

Collins v. Rice (2006), 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824,

quoting Purkett v. Elem (1995), 514 U.S. 765, 768, 115 S.Ct. 1769, 131

L.Ed.2d 834 (per curiam). The trial court, however, may not simply accept a

proffered race-neutral reason at face value; it must examine the prosecutor’s

challenges in context to ensure that the reason is not merely pretextual.

Frazier, 115 Ohio St.3d at ¶65.
                                        8

         {¶ 18} In reviewing a trial court’s ruling on a Batson challenge, we will

not disturb the court’s decision unless we find it to be clearly erroneous. See

State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶61. This

deferential standard arises from the fact that step three of the Batson inquiry

turns largely on the evaluation of credibility by the trial court. See Herring,

94 Ohio St.3d at 252,762 N.E.2d 940, citing Batson, 476 U.S. at 98.

         {¶ 19} In the instant case, during voir dire, the following exchange took

place:

         “Ms. Ranke:       * * * At this time the defense would like to
                           thank and excuse juror number 7.

         “The Court:       Thank you, ma’am. Actually I want you to take
                           a seat for a minute. I want to see counsel at
                           sidebar.
         “* * *

         “The Court:       Let’s talk about this on the record. The reason
                           I called you up to sidebar is we’re going
                           through challenges and obviously I’m keeping
                           track and I noticed that all three of defense
                           challenges have been white, and I’ve asked for a
                           neutral reason. As you know Batson works
                           both directions. Not just about the State and
                           not just about one race.       It’s about a fair
                           seating of the jury. I’m not satisfied with the
                           explanation I heard at sidebar so I want to give
                           defense counsel the opportunity to state their
                           reason clearly on the record and then give the
                           State an opportunity to respond before I decide.
                            Go ahead Ms. Ranke.
                                      9
      “Ms. Ranke:       * * * As I indicated, she has a brother - - I did
                        not have my notes when I was talking at side
                        bar. She has a brother who is a police officer
                        in Stow. So that shows at least a relationship
                        with law enforcement. That certainly does not
                        mean she can’t be fair but certainly that is a
                        concern to my client. Secondly, she has a
                        brother and a son, that although she doesn’t
                        own firearms that indicated that they both
                        owned guns. I believe her body language in
                        answering questions both to the court, both to
                        the State and to defense counsel indicated a
                        very rote yes or no.    * * * I believe her body
                        language indicated that she was not necessarily
                        giving full answers to the questions.”        Tr.
                        526-528.

      {¶ 20} The above exchange involves the first and second steps of the

three-step procedure regarding the Batson analysis.       First, the trial court

noted that all three of defense counsel’s peremptory challenges were white

jurors.   Second, defense counsel suggested that juror number 7 was excused

because of her connection to law enforcement, family members’ ownership of

guns, and evasive answers.

      {¶ 21} In the third step of the Batson analysis, the court must decide

whether the neutral explanation offered by the proponent of the strike is

credible or instead is a “pretext” for unconstitutional discrimination. State v.

Gowdy (2000), 88 Ohio St.3d 387, 727 N.E.2d 579, citing State v. Hernandez

(1992), 63 Ohio St.3d 577, 589 N.E.2d 1310.
                                      10

      {¶ 22} In rejecting defense counsel’s explanation, the trial court stated

in pertinent part as follows:

      “I will just say that I don’t think her answers were at all
      evasive or that she was disinterested. I think she was
      just one of those grandmas that’s very crazy about a
      grandchild.     I didn’t see anything about her that
      indicated she wouldn’t pay attention. She is also not the
      only juror left who has some familiarity with guns. * * *
      Well the question is on this juror is there sufficient race
      neutral reason, and I don’t believe that there is. So the
      challenge will not stand. She will remain. Okay. * * * You
      can exercise the challenge of whoever you choose, but
      you’re going to have to give me a sufficient race neutral
      reason. It may be that you’ll challenge another white
      juror, and I’ll be satisfied with the explanation. I’m not
      satisfied with this.” Tr. 529-532.

      {¶ 23} 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 evidence often will be the demeanor of the attorney who

exercises the challenge.        State v. Bolton, Cuyahoga App. No. 81638,

2003-Ohio-3020.

      {¶ 24} Further, as with the state of mind of a juror, evaluation of

counsel’s state of mind based on demeanor and credibility lies peculiarly

within a trial judge’s province. Id. Here, despite defense counsel’s proffer

that the prospective juror was being evasive and appeared disinterested, the

trial court specifically stated that it disagreed with that assessment. The
                                        11
trial court had the opportunity to observe the prospective juror’s body

language and voice inflection and reached a different conclusion from defense

counsel.

      {¶ 25} We recognize that a suggestion that a juror was evasive or

disinterested has been held to be a sufficient race neutral reason to survive a

Batson challenge.        See State v. Boynton, Cuyahoga App. No. 93598,

2010-Ohio-4248. However, in the instant case, the trial court made a specific

determination     that      defense   counsel’s   explanation   was   pretextual.

Consequently, we affirm the trial court’s decision disallowing defense

counsel’s peremptory challenge of juror number 7. Accordingly, we overrule

the first assigned error.

                             Sufficiency of Evidence

      {¶ 26} In the second assigned error, Davenport argues the evidence was

insufficient to support his convictions.

      {¶ 27} Crim.R. 29 mandates that the trial court issue a judgment of

acquittal where the state’s evidence is insufficient to sustain a conviction for

the offense. Crim.R. 29(A) and sufficiency of evidence review require the same

analysis.   State v. Mitchell, Cuyahoga App. No. 95095, 2011-Ohio-1241,

citing State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386.
                                     12

      {¶ 28} In analyzing the sufficiency issue, the reviewing court must view

the evidence “in the light most favorable to the prosecution” and ask whether

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

beyond a reasonable doubt.” Jackson v. Virginia (1979), 443 U.S. 307, 319, 99

S.Ct. 2781, 61 L.Ed.2d 560; State v. Jenks (1991), 61 Ohio St.3d 259, 574

N.E.2d 492, paragraph two of the syllabus; State v. Carter (1995), 72 Ohio

St.3d 545, 651 N.E.2d 965.

      {¶ 29} In the instant case, the victim, Hairston, testified that he was

robbed at gunpoint by Davenport, that he observed Davenport kick open the

door to Grisette’s bedroom and fire a single shot into the room. Also, both

Adams and McClutchen, Davenport’s codefendants, testified that they went

to the boarding house to rob Hairston.

      {¶ 30} In addition, both codefendants testified that while the robbery

was in progress, Davenport kicked open Grisette’s bedroom door and fired a

single shot into the room.    Further, both codefendants testified that after

they fled the scene, they inquired of Davenport why he had fired into room,

and he indicated that he was going to shoot anything that moved. Finally,

the evidence indicates that Grisette’s death resulted from a single gunshot

wound.
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      {¶ 31} After reviewing the evidence in a light most favorable to the

prosecution, we conclude that any rational trier of fact could have found that

the essential elements of the charged crimes were proven beyond a reasonable

doubt. Consequently, the trial court properly denied Davenport’s motion for

acquittal. Accordingly, we overrule the second assigned error.

                     Manifest Weight of the Evidence

      {¶ 32} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865

N.E.2d 1264, the Ohio Supreme Court addressed the standard of review for a

criminal manifest weight challenge, as follows:

      “The criminal manifest-weight-of-the-evidence standard
      was explained in State v. Thompkins, 78 Ohio St.3d 380,
      1997–Ohio–52, 678 N.E.2d 541. In Thompkins, the court
      distinguished between sufficiency of the evidence and
      manifest weight of the evidence, finding that these
      concepts differ both qualitatively and quantitatively. Id.
      at 386, 678 N.E.2d 541. The court held that sufficiency of
      the evidence is a test of adequacy as to whether the
      evidence is legally sufficient to support a verdict as a
      matter of law, but weight of the evidence addresses the
      evidence’s effect of inducing belief. Id. at 386–387, 678
      N.E.2d 541. In other words, a reviewing court asks whose
      evidence is more persuasive—the state’s or the
      defendant’s? We went on to hold that although there may
      be sufficient evidence to support a judgment, it could
      nevertheless be against the manifest weight of the
      evidence. Id. at 387, 678 N.E.2d 541. ‘When a court of
      appeals reverses a judgment of a trial court on the basis
      that the verdict is against the weight of the evidence, the
      appellate court sits as a “thirteenth juror” and disagrees
      with the factfinder’s resolution of the conflicting
      testimony.’ Id. at 387, 678 N.E.2d 541, citing Tibbs v.
                                      14
      Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d
      652.”

      {¶ 33} In this assigned error, Davenport argues the jury lost its way as

to the convictions.    Specifically, Davenport argues the state presented

conflicting and inconsistent testimonies, lacking in credibility.      However,

the determination of weight and credibility of the evidence is for the trier of

fact. State v. Chandler, 10th Dist. No. 05AP–415, 2006-Ohio-2070, citing State

v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. The rationale is that the

trier of fact is in the best position to take into account inconsistencies, along

with the witnesses’ manner and demeanor, and determine whether the

witnesses’ testimonies are credible. State v. Williams, 10th Dist. No.

02AP–35, 2002-Ohio-4503.

      {¶ 34} Here, given the testimony as previously discussed, we are not

disposed to reach such a conclusion. After reviewing the entire record, we

cannot conclude that any of the evidence weighs heavily against the jury’s

finding of guilt. Accordingly, we overrule the third assigned error.

      Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution. The defendant’s conviction having been affirmed,
                                    15
any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, J., CONCUR
