STATE OF OHIO v. DWAYNE JONES
Appellate Case No. 26819
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
Rendered on the 9th day of September, 2016.
2016-Ohio-5728
FAIN, J.
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
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.
{¶ 4} Jones was indicted on one count of Felonious Assault, with a Deadly Weapon, upon a Police Officer, in violation of
{¶ 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
{¶ 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.
{¶ 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
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
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.
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.
{¶ 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
{¶ 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.
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DONOVAN, P.J., and WELBAUM, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Michele D. Phipps
Robert Scott