[Cite as State v. Jones, 2016-Ohio-5728.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :   Appellate Case No. 26819
         Plaintiff-Appellee                       :
                                                  :   Trial Court Case No. 2014-CR-1402
 v.                                               :
                                                  :   (Criminal Appeal from
 DWAYNE JONES                                     :    Common Pleas Court)
                                                  :
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                          Rendered on the 9th day of September, 2016.

                                             ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

ROBERT L. SCOTT, Atty. Reg. No. 0086785, 8801 North Main Street, Suite 200, Dayton,
Ohio 45415
      Attorney for Defendant-Appellant

                                            .............

FAIN, J.

        {¶ 1} Defendant-appellant Dwayne Jones appeals from his conviction and
                                                                                           -2-


sentence for Felonious Assault. Jones argues that the trial court erroneously overruled

an objection, based on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69

(1986), to the State’s peremptory challenge to a prospective juror, and that his conviction

is against the manifest weight of the evidence. We conclude that the trial court did not

err in overruling the Batson objection, and that the judgment is not against the manifest

weight of the evidence. Accordingly, the judgment of the trial court is Affirmed.



                    I. Traffic Stop Leads to Assault on an Officer

       {¶ 2} In April 2014, two City of Dayton police officers were on patrol in a marked

cruiser on Broadway Street in the City of Dayton. Responding to a tip regarding a Chrysler

300, registered to Ambrea Carter, the officers saw the car and followed it to the parking

lot of Church’s Chicken. They observed Jones turn the car into the parking lot from

Broadway Street without using a turn signal, then drive into the parking lot and back into

a parking spot. The officers parked their cruiser near the Chrysler, and Officer Rillo

proceeded to get out of the passenger side of the police cruiser and walk toward the

Chrysler. Within seconds, Jones accelerated the Chrysler directly toward the officer, who

had to jump out of the way to avoid being injured. As Jones drove the Chrysler out of the

parking lot, his vehicle struck a van in the parking lot, knocking off the side mirror of the

Chrysler. The officers did not pursue the Chrysler at that time. At the time of the incident,

Officer Rillo saw the driver, Jones, clearly enough to positively identify him at trial.

       {¶ 3} A few days after the incident, a search warrant was obtained, and the

Chrysler, with a missing side mirror, was found and searched, linking it to Jones.
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                             II. The Course of Proceedings

       {¶ 4} Jones was indicted on one count of Felonious Assault, with a Deadly

Weapon, upon a Police Officer, in violation of R.C. 2903.11(A)(2), a felony of the first

degree.

       {¶ 5} The case proceeded to a jury trial. During voir dire, questions were asked

to the jury pool whether any prospective juror knew anyone who had been convicted of a

crime. Four prospective jurors responded affirmatively regarding convictions of family

members. Three of the four jurors discussed the convictions openly and agreed that it

would not impact their ability to be fair and impartial. The fourth prospective juror asked

for a sidebar conference to discuss it privately. The prospective juror advised the court

and the attorneys that his son was a convicted sex offender. When asked if it would impact

his ability to be fair and impartial, the prospective juror replied, “To be honest with you,

the case was such a rocky situation. He was prosecuted but I feel like he shouldn’t have

been.” Trial Transcript at pg. 60. Several of this prospective juror’s comments and

answers were labeled “indiscernible” for the record. Id. at 60-61. When asked again if he

could be fair and impartial, the prospective juror answered, “Yeah.” Id. at 61. After this

prospective juror was seated as an alternate, the trial court allowed the State to exercise

a peremptory challenge to have him excused. Defense counsel objected to the

peremptory challenge, but the reason for the objection is not explained. Id. at 100-101.

Without specifically addressing the racial composition content of the jury pool or the jurors

already selected or already excused, it appears that the trial court presumed that the

defense was making a Batson challenge, and asked the State to explain its “reason for
                                                                                         -4-

knocking him out.” Id. at 101. The State responded, “I believe he indicated at sidebar that

his son was convicted of a sex offense. And he felt that there wasn’t enough evidence for

that. And therefore, he would want to see a significant amount of evidence to convict

someone. He was asked whether or not he’d be fair and impartial and he said yes. But

he did indicate that based on what happened to his son that he felt his son was convicted

upon insufficient evidence (indiscernible). And therefore, I think he would have a bias

toward the State * * * .” Defense counsel responded that this prospective juror had

affirmatively agreed that he could be fair and impartial, and would not have a bias against

the government. The trial court overruled the objection, and the prospective juror was

excused.

       {¶ 6} The jury found Jones guilty of the Felonious Assault charge. Jones was

sentenced to a term of 8 years of imprisonment, to run concurrently with sentences in four

other cases. From the judgment of the trial court, Jones appeals.



                                  III. Standard of Review

       {¶ 7} The Supreme Court of Ohio has addressed the appropriate standard of

review for a claim of racial discrimination in jury selection, as follows:

              Review of a Batson claim largely hinges on issues of credibility.

       Accordingly, we ordinarily defer to the findings of the trial court. See Batson

       [v. Kentucky, 476 U.S. 79,] at 98, 106 S. Ct. at 1724, 90 L.Ed.2d at 89, fn.

       21 [1986]. Whether a party intended to racially discriminate in challenging

       potential jurors is a question of fact, and in the absence of clear error, we

       will not reverse the trial court's determination.
                                                                                          -5-

Hicks v. Westinghouse Materials Co., 78 Ohio St. 3d 95, 102, 676 N.E.2d 872

(1997), citing Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct.1859, 114
L. Ed. 2d 395 (1991); State v. Hernandez, 63 Ohio St. 3d 577, 583, 589 N.E.2d 1310

(1992).

       {¶ 8} 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. Herring, 94 Ohio St. 3d 246, 257, 762 N.E.2d
940 (2002),



  IV. The Trial Court Did Not Err in Overruling Jones’s Batson Objection to the

                State’s Peremptory Challenge to a Prospective Juror

       {¶ 9} For his First Assignment of Error, Jones asserts:

              THE TRIAL COURT ERRED IN PERMITTING THE STATE TO

       EXERCISE       A   PEREMPTORY          CHALLENGE         IN   A    RACIALLY

       DISCRIMINATORY MANNER.

       {¶ 10} Jones argues that the trial court erred by overruling his Batson challenge

and allowing the State to exercise a peremptory challenge to excuse a juror. In Hicks,

supra, the Supreme Court of Ohio set forth the analysis used in determining whether a

peremptory challenge is racially motivated. The court held:

              The United States Supreme Court set forth in Batson [v. Kentucky,

       476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986),] the test to be used in

       determining whether a peremptory strike is racially motivated. First, a party
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opposing a peremptory challenge must demonstrate a prima-facie case of

racial discrimination in the use of the strike. Id. at 96, 106 S.Ct. at 1723, 90
L. Ed. 2d at 87. To establish a prima-facie case, a litigant must show he or

she is a member of a cognizable racial group and that the peremptory

challenge will remove a member of the litigant's race from the venire. The

peremptory-challenge opponent is entitled to rely on the fact that the strike

is an inherently “discriminating” device, permitting “ ‘ “those to discriminate

who are of a mind to discriminate.” ’ ” State v. Hernandez (1992), 63 Ohio

St.3d 577, 582, 589 N.E.2d 1310, 1313, certiorari denied (1992), 506 U.S.
898, 113 S. Ct. 279, 121 L. Ed. 2d 206. The litigant must then show an

inference or inferences of racial discrimination by the striking party. The trial

court should consider all relevant circumstances in determining whether a

prima-facie case exists, including statements by counsel exercising the

peremptory challenge, counsel's questions during voir dire, and whether a

pattern of strikes against minority members is present. See Batson at 96-

97, 106 S. Ct. at 1723, 90 L.Ed.2d at 88.

       Assuming a prima-facie case exists, the striking party must then

articulate a race-neutral explanation “related to the particular case to be

tried.” Id. at 98, 106 S. Ct. at 1724, 90 L.Ed.2d at 88. A simple affirmation of

general good faith will not suffice. However, the explanation “need not rise

to the level justifying exercise of a challenge for cause.” Id. at 97, 106 S. Ct.

at 1723, 90 L.Ed.2d at 88. The critical issue is whether discriminatory intent

is inherent in counsel's explanation for use of the strike; intent is present if
                                                                                       -7-


      the explanation is merely a pretext for exclusion on the basis of race.

      Hernandez v. New York (1991), 500 U.S. 352, 363, 111 S. Ct. 1859, 1868,

      114 L. Ed. 2d 395, 408.

             Last, the trial court must determine whether the party opposing the

      peremptory strike has proved purposeful discrimination. Purkett v. Elem

      (1995), 514 U.S. 765, 766-767, 115 S. Ct. 1769, 1770, 131 L. Ed. 2d 834,

      839. It is at this stage that the persuasiveness, and credibility, of the

      justification offered by the striking party becomes relevant. Id. at 768, 115

      S.Ct. at 1771, 131 L. Ed. 2d at 839. The critical question, which the trial

      judge must resolve, is whether counsel's race-neutral explanation should

      be believed. Hernandez v. New York, 500 U.S. at 365, 111 S.Ct. at 1869,
114 L. Ed. 2d at 409.

Hicks, supra, at 98-99.

      {¶ 11} In the case before us, the record of the juror’s statements is complicated

by at least five “indiscernible” comments, but it does confirm that the juror had a life

experience different from the other three prospective jurors, who also had relatives who

had been convicted of a crime. Although the three-step process of handling a Batson

challenge was not clearly placed on the record, the record does support the trial court’s

finding that the State provided a race-neutral reason for the exclusion of the alternate

juror. The record does not contain facts requiring a conclusion that the State’s challenge

was purposeful discrimination, or that the race-neutral reason given was not the actual

reason. The trial court’s acceptance of the State’s proffered race-neutral grounds for its

preemptory challenge is not clearly erroneous.
                                                                                       -8-


      {¶ 12} Jones’s First Assignment of Error is Overruled.

       V. The Conviction Is Not Against the Manifest Weight of the Evidence

      {¶ 13} For his Second Assignment of Error, Jones asserts:

             DEFENDANT’S         CONVICTION       FOR     THE    OFFENSE       OF

      FELONIOUS ASSAULT (DEADLY WEAPON)(PO), IN VIOLATION OF

      ORC 2903.11(A)(2) IS AGAINST THE MANIFEST WEIGHT OF THE

      EVIDENCE AND SHOULD BE OVERTURNED

      {¶ 14} Jones argues that the State failed to prove the mens rea required for a

conviction for Felonious Assault. To obtain a conviction for Felonious Assault, the jury

was required to find, beyond a reasonable doubt, that Jones knowingly caused, or

attempted to cause, serious physical harm to another by means of a deadly weapon or

dangerous ordnance. R.C. 2903.11(A)(2). The State did establish that Jones was driving

a motor vehicle at the time of the offense. We have held that “[a]n automobile used in

an attempt to run down a police officer constitutes a deadly weapon.” State v. McDaniel,

2d Dist. Montgomery No. 16221, 1998 WL 214606, *8 (May 1, 1998); State v. Moreland,

2d Dist. Greene No. 2001CA85, 2003-Ohio-210, ¶ 21.

      {¶ 15} Jones did not testify, and the only evidence before the jury is the testimony

of the officers who were eyewitnesses to the incident. The officers’ testimony establishes

that Officer Rillo’s safety was threatened by Jones when Jones drove the Chrysler directly

toward Officer Rillo, in a manner that would have harmed Officer Rillo if he had not been

able to respond quickly by jumping out of the way.

      {¶ 16} When a defendant does not testify, the jury or fact finder “must decide what

his intent is by looking at the surrounding facts and circumstances.” State v. Terry, 186
                                                                                       -9-


Ohio App.3d 670, 2010-Ohio-1604, 929 N.E.2d 1111, ¶¶ 22-23 (4th Dist.). R.C.

2901.22(B), defining the culpable mental state of knowledge, provides that “[a] person

acts knowingly, regardless of his purpose, when he is aware that his conduct will probably

cause a certain result or will probably be of a certain nature. A person has knowledge of

circumstances when he is aware that such circumstances probably exist.”

       {¶ 17} “[A] person is presumed to intend the natural, reasonable and probable

consequences of his voluntary acts.” State v. Mulligan, 2d Dist. Montgomery No. 19359,

2003-Ohio-782, ¶ 35, citing In re Purola, 73 Ohio App. 3d 306, 312, 596 N.E.2d 1140

(1991). See also State v. Perkins, 154 Ohio App. 3d 631, 2003-Ohio-5092, 798 N.E.2d
646, ¶ 42 (2d Dist.) In the case before us, the facts support a conclusion that Jones was

voluntarily driving the vehicle, and was aware that his conduct could have caused serious

harm to a police officer. Based on the evidence, we conclude that the verdict of guilty on

the Felonious Assault charge is not against the manifest weight of the evidence.

       {¶ 18} Jones’s Second Assignment of Error is overruled.



                                    VI. Conclusion

       {¶ 19} Both of Jones’s assignments of error having been overruled, the judgment

of the trial court is Affirmed.

                                    .............

DONOVAN, P.J., and WELBAUM, J., concur.


Copies mailed to:

Mathias H. Heck, Jr.
Michele D. Phipps
Robert Scott
                        -10-


Hon. Steven K. Dankof