[Cite as State v. Rose, 2024-Ohio-1845.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-23-02
v.
BRYANT A. ROSE, OPINION DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court Trial Court No. CR 2021 0028
Judgment Affirmed
Date of Decision: May 13, 2024
APPEARANCES:
Max Hersch for Appellant
John R. Willamowski, Jr. for Appellee Case No. 1-23-02
MILLER, J.
{¶1} Defendant-Appellant, Bryant A. Rose (“Rose”), appeals the December
12, 2022 judgment issued by the Allen County Court of Common Pleas. Following
a jury trial, Rose was found guilty of committing abduction and misdemeanor
assault, but not guilty of other charges. The trial court sentenced Rose to an
aggregate three-year prison term. He now challenges the trial court’s ruling on a
Batson claim he made during voir dire. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶2} On March 12, 2021, Rose was indicted on three counts: felonious
assault (with a firearm specification), abduction (with a firearm specification), and
having weapons while under disability. The indictment stemmed from an alleged
incident on January 29, 2021 while Rose was hosting an afterhours party with his
significant other at the time, Janiece Spencer (“Spencer”). According to the State,
Rose and Spencer got into an argument, which led to Rose assaulting Spencer with
a gun in an upstairs bathroom and not letting her leave that room.
{¶3} The case eventually proceeded to a three-day trial starting on October
18, 2022. During voir dire, the following exchanges took place with a potential
juror, a black man who became the subject of Rose’s Batson claim:
[Prosecutor]: Are you working or anything right now?
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[Potential Juror]: I do YouTube content.
***
[Prosecutor]: YouTube content? What kind of content do you make?
[Potential Juror]: Just anything that’s popular right now to put it on my channel.
[Prosecutor]: Okay. How long have you been doing that for?
[Potential Juror]: Since February.
[Prosecutor]: What else do you like to do in your free time besides make content for YouTube?
[Potential Juror]: Sometimes I just like to think to myself; you know?
[Prosecutor]: Think to yourself?
[Potential Juror]: Yea.
[Defense Counsel:] [S]o, if you were set for life with money and it wasn’t an issue what career path or job would you want?
[Potential Juror]: I wouldn’t take a career path. I would just move down to Miami and get with as many women as I can.
[Defense Counsel:] All right. An honest answer. You work with a lot of music, right? Would you do music down there?
[Potential Juror]: Probably. Probably.
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(Oct. 18, 2022 Tr. at 55-56, 123). Other prospective jurors had responded to the
question about what career path or job they would want if money wasn’t an issue
with answers such as being a sports reporter, being a veterinarian, traveling across
the country with their spouse, traveling and helping people who have to deal with
trauma in their lives, and going to culinary school. (Id. at 114-15, 120-22).
{¶4} The State used a peremptory strike on the potential juror. (Id. at 160).
Rose’s trial counsel then asked for a sidebar, where he said:
I just have to make a record. It appears, at least to the defense, that there are four African-Americans on the jury panel as it exists right now, including [the potential juror]. We struck one, but we struck her because of her relationship, prior relationship, with our client. The State has now used a peremptory challenge to strike an African- American juror. I think there’s – well, Batson is close to be implicated. There’s some authority out there that even a first strike of a minority juror in a pool this small can still be considered a Batson type issue. So, we would ask at this time to find that the possibility of Batson exists and at least have the State put on record a race neutral reason for striking [the potential juror].
(Id.). The judge then asked if the State wanted to respond, and the State provided
an explanation for its strike that included: (1) the potential juror having “no desire
to be here,” evidenced by him “often looking at the ceiling and not paying
attention”; (2) some of his answers were joking, such as his response about what
career path or job he would want if money were not an issue; and (3) he is a
YouTube content creator. (Id. at 160-61). After the State’s explanation, the judge
asked if the defense had anything further, to which Rose’s trial counsel responded,
“No.” (Id.). The judge then found that Batson was implicated, decided the State
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expressed race-neutral reasons for its peremptory strike, and overruled Rose’s
Batson claim, thus allowing the strike of the potential juror. (Id.).
{¶5} At the end of the trial, Rose was found guilty of the abduction charge
and a lesser-included offense of assault, but not guilty of the felonious assault
charge, having-weapons-while-under-disability charge, and all firearm
specifications. On December 12, 2022, the trial court sentenced Rose to three years
in prison for the abduction conviction, and 180 days in jail for the misdemeanor
assault conviction, to run concurrently with the sentence for the abduction
conviction. This appeal followed.
II. ASSIGNMENT OF ERROR
{¶6} Rose raises a single assignment of error for our review:
Assignment of Error
The trial court erred when it overruled Bryant Rose’s Batson challenge. Fourteenth Amendment to the United States Constitution; Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Flowers v. Mississippi, --- U.S. ---, 139 S.Ct. 2228, 204 L.E.2d 638 (2019); T.p. 160- 161.
III. DISCUSSION
{¶7} In his assignment of error, Rose argues that he established a prima facie
case of racial discrimination in the State’s striking of the potential juror; the State’s
reasons for striking the potential juror were merely pretextual; and the trial court
erred in overruling Rose’s Batson claim. According to Rose, a new trial is therefore
required. We disagree.
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A. Applicable Law
{¶8} “A defendant has ‘the right to be tried by a jury whose members are
selected pursuant to nondiscriminatory criteria.’” State v. Thompson, 141 Ohio
St.3d 254, 2014-Ohio-4751, ¶ 49, quoting Batson v. Kentucky, 476 U.S. 79, 85-86,
106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). “Accordingly, a constitutional violation
occurs when the prosecution challenges ‘potential jurors solely on account of their
race or on the assumption that black jurors as a group will be unable impartially to
consider the State’s case against a black defendant.’” Id., quoting Batson at 89; see
also Sixth and Fourteenth Amendments to the U.S. Constitution. “[E]ven a single
instance of race discrimination against a prospective juror is impermissible” under
the Equal Protection Clause. Flowers v. Mississippi, 588 U.S. 284, 300, 139 S.Ct.
2228, 204 L.Ed.2d 638 (2019).
1. Three-step test for Batson claims
{¶9} The U.S. Supreme Court in Batson established a three-step test for
adjudicating race-based preemptory challenges to prospective jurors. Thompson at
¶ 50, citing Batson at 96. First, the opponent of the peremptory challenge must
make a prima facie case of racial discrimination. Id. at ¶ 50. Second, if the opponent
satisfied that burden, then the burden shifts to the State to provide a neutral
explanation for challenging the black juror. Id. at ¶ 51. “‘[U]nless a discriminatory
intent is inherent in the prosecutor’s explanation, the reason offered will be deemed
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race neutral.” Id., quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131
L.Ed.2d 834 (1995).
{¶10} At the third step, the trial court must decide, based on all of the
circumstances, whether the opponent of the peremptory challenge has established
purposeful racial discrimination. Id. at ¶ 52; Batson at 98. “The trial judge must
determine whether the prosecutor’s stated reasons [for the strike] were the actual
reasons or instead were a pretext for discrimination.” Flowers at 298. In doing so,
“[t]he court must ‘assess the plausibility of’ the prosecutor’s reason for striking the
juror ‘in light of all evidence with a bearing on it.’” Thompson at ¶ 52, quoting
Miller-El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).
Relevant factors may include: the prosecutor’s demeanor; the reasonableness, or
improbability, of the explanation(s); and whether the proffered rationale has some
basis in accepted trial strategy. Id. Race-neutral reasons for peremptory challenges
often invoke a juror’s demeanor, “‘making the trial court’s firsthand observations
of even greater importance.’” Id., quoting Snyder v. Louisiana, 552 U.S. 472, 477,
128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). The trial court’s finding at step three is
entitled to deference because it turns largely on evaluating credibility. Id. at ¶ 53.
{¶11} “The ultimate inquiry is whether the State was ‘motivated in
substantial part by discriminatory intent.’” Flowers, 588 U.S. at 303, quoting Foster
v. Chatman, 578 U.S. 488, 513, 136 S.Ct. 1737, 195 L.E.2d 1 (2016). “The ultimate
burden of persuasion regarding racial motivation rests with, and never shifts from,
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the opponent of the strike.” State v. Gowdy, 88 Ohio St.3d 387, 393, 727 N.E.2d
579 (2000).
2. Standard of review
{¶12} Appellate courts will not reverse a trial court’s ruling that there was
‘“no discriminatory intent’” in striking a prospective juror unless the ruling was
“‘clearly erroneous.’” Thompson, 2014-Ohio-4751, at ¶ 53, quoting State v. Bryan,
101 Ohio St.3d 272, 2004-Ohio-971, ¶ 106. 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. Hawkins, 3d Dist. Allen No.
1-18-08, 2018-Ohio-4649, ¶ 12 (affirming judgment where the trial court overruled
a Batson claim to the State’s peremptory strike of a black prospective juror). “If,
however, a trial court does err in applying Batson, the error is structural.”
Thompson, 2014-Ohio-4751, at ¶ 53.
B. Analysis
{¶13} Rose does not argue any error concerning the first two parts of the
three-part test for analyzing a Batson claim, i.e., that he established a prima facie
case of discrimination and that the State offered a race-neutral explanation for
exercising its preemptory strike against the potential juror. Rose argues only that
the State’s reasons were pretextual and, therefore, the trial court erred when it
overruled his Batson claim. (See Appellant’s Brief at 7-13).
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{¶14} We initially point out that, once the State responded to the Batson
claim by providing a neutral explanation for striking the potential juror, the trial
court gave Rose’s counsel an opportunity to respond. (Oct. 18, 2022 Tr. at 161).
Rose’s counsel declined to do so. (Id.). The trial court then overruled the Batson
claim and allowed the strike. Thus, “the defense never disputed the proffered race-
neutral reasons for excusing” the potential juror. State v. Moseley, 8th Dist.
Cuyahoga No. 92110, 2010-Ohio-3498, ¶ 52. Given how “Batson places the burden
of persuasion on the opponent of the strike,” we therefore may construe Rose’s
counsel’s “failure to respond to the government’s explanation as an indication that
he no longer disputed the strike.” Id.
{¶15} Regardless, even assuming Rose still disputed the strike, we do not
find the trial court’s ruling met the clearly erroneous standard. By overruling Rose’s
Batson claim, the trial court determined Rose had not established “purposeful racial
discrimination” by the State. Thompson, 2014-Ohio-4751, at ¶ 52. Based on the
record before us, the explanation given by the State for striking the potential juror
was plausible, reasonable, and had at least some basis in accepted trial strategy. The
record does not support finding that the State was “motivated in substantial part by
discriminatory intent.” Flowers, 588 U.S. at 303.
{¶16} For example, courts from Ohio and around the nation have recognized
that a prospective juror not taking the proceedings seriously may be a legitimate,
non-pretextual reason for exercising a peremptory challenge. E.g., State v.
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Williams, 8th Dist. Cuyahoga No. 96244, 2011-Ohio-4126, ¶ 9-10 (Stewart, P.J.)
(prospective juror not taking the proceeding seriously was an “expressly
unambiguous, facially race-neutral, void of inherent discriminatory intent, and at
the very least, plausible” reason to strike the prospective juror because, if accurate,
it would have “an adverse effect on the ability of the prospective candidate[] to
successfully perform as” a juror); People v. Powell, 224 Ill.App.3d 127, 132, 586
N.E.2d 589 (1991) (trial court did not err in finding no purposeful discriminatory
intent in striking black prospective juror “when it appears as though this prospective
juror did not take the proceedings seriously”). Here, striking the potential juror
because he was not taking the proceeding seriously—as shown, for example, by
saying that, if money were not an issue, he would not seek a job but would get with
as many women as he could—was a plausible reason to strike him, without
indication of pretext or purposeful discriminatory intent (particularly given that the
case involved a woman as the alleged victim).
{¶17} Importantly, a trial judge is in the best position for evaluating a
prospective juror’s demeanor to ascertain if the prosecutor’s demeanor-based
reasons for exercising the peremptory strike are valid. A trial judge is also in
position to observe the prosecutor for purposes of assessing his or her credibility in
setting forth a race-neutral basis for using the strike. In this manner, the trial court
can best decide “whether the defendant met his burden of proving purposeful
discrimination.” Gowdy, 88 Ohio St.3d at 394-95 (“only the trial court was able to
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listen to [prospective juror’s] tone of voice, and his inflection, and to observe his
mannerisms and overall demeanor and that of the prosecutor,” while an appellate
court only has a transcript to review). In this case, the trial court was in the best
position to view the demeanor of the jurors and assess the prosecutor’s assertion
that this particular potential juror appeared to have “no desire to be here.” This is
true even if the judge did not personally observe the potential juror “often looking
at the ceiling and not paying attention.” Likewise, the trial court was in the best
position to observe the prosecutor’s demeanor and candor when the prosecutor
proffered reasons in support of the peremptory strike. See Moseley, 2010-Ohio-
3498, at ¶ 54 (even if the judge had not observed the juror “with her head down and
eyes closed,” the judge’s ruling on the Batson challenge “could have been validly
based on the judge’s personal observation of the prosecutor’s demeanor during the
prosecutor’s explanation of his proffered reasons”).
{¶18} Rose contends that comparing the potential juror’s answers to those of
other prospective jurors bolsters a finding of pretext. Among the evidence a
defendant may present to help establish purposeful racial discrimination are “side-
by-side comparisons of black prospective jurors who were struck and white
prospective jurors who were not struck in the case.” Flowers, 588 U.S. at 302; see
also Miller-El, 545 U.S. at 241 (“[i]f a prosecutor’s proffered reason for striking a
black panelist applies just as well to an otherwise-similar nonblack [panelist] who
is permitted to serve, that is evidence tending to prove purposeful discrimination to
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be considered at Batson’s third step”). Looking at the question posed to prospective
jurors about what job they would want if money wasn’t an issue, Rose argues that
“many prospective jurors stated that they would no longer work, but would instead
travel—mostly to somewhere warm,” which, according to Rose, “was the essence
of [the potential juror’s] answer too.” (Appellant’s Brief at 12).
{¶19} We preliminarily note that the transcript does not allow us to
determine which answers were given by black prospective jurors and which were
given by non-black prospective jurors. Rose admits “the record here does not
disclose the races of the prospective jurors, except that there were three Black jurors
remaining after the prosecution struck [the potential juror].” (Id.). Yet, even if we
assume the other answers were given by non-black prospective jurors, all of them
were materially distinguishable from the last part of this particular potential juror’s
answer: “I wouldn’t take a career path. I would just move down to Miami and get
with as many women as I can.” (Emphasis added.) (Oct. 18, 2022 Tr. at 123).
Therefore, we do not find the answers of other prospective jurors support a finding
of pretext in the State’s reason for striking him. Hawkins, 2018-Ohio-4649, at ¶ 22,
26 (finding non-racial meaningful differences between the answers of black
prospective jurors and the other potential jurors).
{¶20} Additionally, it is without dispute that the answer of this potential juror
to “get with as many women as I can” could reasonably be taken as being in poor
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taste or crude. Such an answer made in the context of jury selection in a serious
felony trial further shows the potential juror was not taking the matter seriously.
{¶21} Rose also argues the State did not identify any other answers by this
potential juror as joking. First, this ignores how Rose—as the opponent of the
strike—is the one who has the “ultimate burden of persuasion regarding racial
motivation.” Gowdy, 88 Ohio St.3d at 393. Second, as referenced above, Rose did
not raise this argument during the trial court proceedings. Third, this potential
juror’s response that “[s]ometimes I just like to think to myself; you know?”—in
response to the prosecutor’s question about what he likes to do in his free time—
was a curious answer that may further indicate he was not taking the proceedings
seriously.1
{¶22} In summary, “[t]he trial court was in the best position to weigh the
credibility of the state’s explanations in determining whether the state exercised its
peremptory challenges with a discriminatory intent.” State v. Sanon, 1st Dist.
Hamilton No. C-220125, 2023-Ohio-2742, ¶ 44 (allowing the State to exercise its
peremptory challenges was not clearly erroneous). Based on the record before us,
we do not find the trial court’s decision was clearly erroneous in determining Rose
had not established purposeful racial discrimination. Gowdy, 88 Ohio St.3d at 394-
395 (“we give great deference to the trial court who was in the best position to make
1 In support of his appeal, Rose relies heavily on two Eighth District cases: State v. Kirk, 8th Dist. Cuyahoga Nos. 107527 and 107553, 2019-Ohio-3887 and State v. Strong, 8th Dist. Cuyahoga No. 100699, 2015-Ohio- 169. However, both are materially distinguishable.
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the determination of whether the defendant met his burden of proving purposeful
discrimination”). We are not left with the definite and firm conviction that the trial
court committed a mistake in overruling Rose’s Batson claim to the State’s
peremptory strike of the potential juror.
IV. CONCLUSION
{¶23} For the foregoing reasons, Appellant’s assignment of error is
overruled. Having found no error prejudicial to the appellant in the particulars
assigned and argued, we affirm the judgment of the Allen County Court of Common
Pleas.
Judgment Affirmed.
ZIMMERMAN AND ZMUDA, J.J
** Judge Gene A. Zmuda of the Sixth District Court of Appeals, sitting by Assignment of the Chief Justice of the Supreme Court of Ohio.
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