State v. MooreState v. Moore
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Luke Habermehl, Assistant Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Robert McCaleb, Assistant Public Defender, for appellant.
{¶ 1} Tara Moore appeals her conviction for felonious assault stemming from her part in causing serious physical harm to the victim. For the following reasons, that conviction is affirmed.
{¶ 2} Moore and the codefendant Tyerra Pouge were both involved in relationships with Tenard Davis before the victim entered the picture. Davis began a relationship with the victim after being released from an unrelated prison sentence, and the victim became pregnant with Davis‘s child. The victim and Pouge and Moore were acquainted but were not on good terms.
{¶ 3} On the night of the assault, which Moore characterizes as mutual combat between her and the victim and only involving minor injuries, the victim drove to the west Flats area in Cleveland to meet Davis around 2:00 a.m. After a short walk, the victim returned to her car and attempted to leave. Davis kept turning her car off preventing the victim‘s departure. At that time, the victim was in the driver‘s seat and the headlights were activated. The victim saw three people quickly approaching the vehicle from the front and first recognized Moore, who began to run toward the vehicle. Pouge was the second person. The third individual was never identified.
{¶ 4} Moore jumped into the front passenger seat and immediately began punching the victim. The victim tried to defend herself, but Pouge joined the attack from behind by hitting the victim on the top of her head with a handgun. Blood started rushing down the victim‘s face as she turned to face the second threat. The
{¶ 5} Moore told Pouge something to the effect thаt the victim had enough, and the codefendants fled the scene. Davis had disappeared sometime during the attack, leaving the pregnant victim to fend for herself.1 The victim called 911 and drove herself to the emergency room for treatment. She was diagnosed with a concussion and received 20 staples and stitches to close the wounds on the top of her head and her ear, leaving some scarring.
{¶ 6} Moore was charged with two counts of felonious assault: one for a violation of
{¶ 7} In this appeal, Moore advances four assignments of error, which will be addressed out of order for the ease of discussion. In the fourth assignment of error, Moore claims that her trial counsel rendered ineffective assistance by failing to file a motion to sever the codefendants’ trial.
{¶ 8} In order to establish ineffective assistance of counsel, a defendаnt must show “(1) that counsel‘s performance was deficient, i.e., that counsel‘s performance fell below an objective standard of reasonable representation, and (2) that counsel‘s deficient performance prejudiced the defendant, i.e., that there is a reasonable probability that, but for counsel‘s errors, the proceeding‘s result would have been different.” State v. Drain, 170 Ohio St.3d 107, 2022-Ohio-3697, 209 N.E.3d 621, ¶ 36, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 142-143, 538 N.E.2d 373 (1989). A “reasonable probability” is a probability of a different result sufficient enough to undermine confidence in the outcome, the same deferential inquiry as applied under the plain-error standard of review. Drain at ¶ 52, quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), and Strickland, at 694.
{¶ 9} Moore has not demonstrated that her trial counsel‘s performance fell below an objective standard of reasonable representation because a motion to sever the trial would have been futile.
{¶ 11} Generally, joinder is favored unless the jury could potentially confuse the issues and the facts essential to the elements of the crimes. “To succeed on a motion to sever, a defendant ‘must furnish the trial court with sufficient information so that it can weigh the considerations favoring joinder against the defendant‘s right to a fair trial.‘” State v. Lytle, 10th Dist. Franklin Nos. 15AP-748 and 15AP-754, 2016-Ohio-3532, ¶ 64, quoting State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990); State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981), syllabus.
{¶ 12} Further, it is generally recognized that codefendants asserting antagonistic theories in a joint trial does not constitute prejudice as contemplated under
{¶ 13} Therefore, the starting point of the analysis begins with the notion that prejudice from the joinder under
{¶ 14} In this appeal, Moore claims she was prejudiced from the joinder based on the mutually antagonistic nature of Pouge‘s and her separate theories of the defense, with Pouge claiming self-defense and Moore blaming Pouge for the severity of the assault. That argument is without merit. “[M]utually antagonistic defenses are not prejudicial per se,” Dues at ¶ 31, citing Daniels and Zafiro v. United States, 506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), and therefore, it cannot be concluded that Moore‘s trial counsel‘s performance fell below the objective standard of reasonable representation.
{¶ 15} Moore‘s argument relies on a presumption that Pouge‘s and her differing theories of the defense constitute prejudice for the purposes of
{¶ 16} In the third assignment of error, Moore claims that “the trial court erred when it denied the defense‘s Batson challenge to the [state‘s] removal of a black woman from the jury.” Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). According to Moore, Juror number 15 was the only black, female member of the venire, a demographic that reflected her own race and gender, and therefore, the state‘s use of a peremptory challenge against that venire member violated Batson. Moore has not demonstrated that Batson has been that narrowly applied.
{¶ 17} “A defendant has ‘the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria.‘” State v. Garrett, 171 Ohio St.3d 139, 2022-Ohio-4218, 216 N.E.3d 569, ¶ 67, citing Batson at 85-86. “The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits purposeful discrimination” in the “use of a peremptory challenge to excuse a prospective juror based on his or her race or gender.” State v. Stalder, 173 Ohio St.3d 203, 2023-Ohio-2359, 229 N.E.3d 24, ¶ 2, citing Batson and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (applying Batson to discrimination based on gender). “In Batson, the Supreme Court set forth a system for challenging peremptory challenges that sought to balance the traditional notion of allowing prosecutors to strike jurors for any reason, with the prohibition against striking jurors on the prohibited basis of race.” United States v. Howard, 67 F.4th 876, 878 (7th Cir.2023), citing Batson at 89, and United States v. Harris, 197 F.3d 870, 873 (7th Cir. 1999).
{¶ 18} Batson “established a three-factor test for adjudicating race-based challenges“: (1) the party opposing the peremptory challenge must make a prima facie case of racial or gender discrimination; (2) if a prima facie case of
{¶ 19} The appellate record in this case does not include the dеmographic composition of the venire or the empaneled jurors. That potentially hampers appellate review, but it does not preclude it. See Nguyen v. Frauenheim, 45 F.4th 1094, 1102 (9th Cir.2022), fn. 3, citing United States v. Guerrero, 595 F.3d 1059, 1063 (9th Cir. 2010), fn.3. Although the federal “Constitution forbids striking even a single prospective juror for a discriminatory purpose,” * * * generally striking only one prospective juror who belongs to a protected group is not enough to draw an inference [of discriminatory intent] without other evidence.” Id. at 1101, 1102, quoting Flowers v. Mississippi, 139 S.Ct. 2228, 2244, 204 L.Ed.2d 638 (2019); citing Wade v. Terhune, 202 F.3d 1190, 1198 (9th Cir.2000); Fernandez v. Roe, 286 F.3d 1073, 1078 (9th Cir.2002) (“[t]wo challenges out of two [African American] venirepersons are not always enough to establish a prima facie case’ because ‘the numbers are so small (and, hence, potentially unreliable)‘” (emphasis sic)); and
{¶ 20} “[W]hen a party objecting to a peremptory challenge offers a bare allegation of [racial or] gender discrimination without offering any other relevant facts and circumstances to support an inference of [that] discrimination,” the moving party has failed to “establish a prima facie case of purposeful [racial or] gender discrimination.” Stalder, 2023-Ohio-2359, at ¶ 5. In order to successfully establish a prima facie case of purposeful discrimination in this context, therefore, “the defendant must demonstrate (1) that members of a cognizable group were peremptorily challenged, and (2) that the facts and any other relevant circumstances raise an inference that the prosecutor used the peremptory challenges to exclude jurors on account of their [race or gender].” (Emphasis added.) Id. at ¶ 17, quoting State v. Johnson, 88 Ohio St.3d 95, 116, 723 N.E.2d 1054 (2000).
{¶ 21} In this case, both before the trial cоurt and in this appellate briefing, Moore claims that the state‘s exercising its second peremptory challenge against Juror number 15 violated Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, because the prospective juror identified herself as a black female, the only member
{¶ 22} The record does not disclose the actual demographic makeup of the venire, nor that of the empаneled jury. According to what can be gleaned from the record, and contrary to the statements made by both parties at oral argument, it is apparent that Juror number 15 was not the only black person on the venire, nor was she the only female present. See, e.g., tr. 597:22-598:4 (according to the defense counsel, after the state indicated its intent to excuse Juror number 15, “the State has now kicked off 100 percent of African-American females, 33 percent of African-Americans at least the best I can see * * *.“);2 tr. 607:22-608:9 (five of the 12 seated jurors were women based on the trial court‘s use of the honorific “Mrs.” in naming the veniremember to be empaneled). Thus, Moore‘s claim appears to be an attempt to advance a Batson challenge to include a combined demographic of race and gender. Moore has not demonstrated a constitutional violation.
{¶ 23} The Supreme Court has never extended the federal law as announced in Batson to include a combined race-gender group. Hoyos v. Davis, 51 F.4th 297, 309 (9th Cir.2022); Nguyen, 45 F.4th at 1100, citing Cooperwood v. Cambra, 245 F.3d 1042 (9th Cir.2001), and Turner v. Marshall, 63 F.3d 807 (9th Cir.1995); see
{¶ 24} Moore has not addressed the case authority contrary to her position that Batson precludes parties from exercising a peremptory based on discriminatory intent toward a combined race-gender category, nor has she presented an argument under Ohio specific laws thаt would recognize a combined category of race and gender. This hampers appellate review. In light of the fact that nearly half the empaneled jury was identified by the court as female, we are limited to determining whether the state‘s use of a peremptory challenge to excuse Juror number 15 was demonstrated to be impermissibly based on her race alone under Batson. Based on the limited arguments and record presented, Moore has failed to establish a prima facie case of discriminatory intent prohibited under Batson.
{¶ 25} Moore‘s Batson challenge, as presented to the trial court, was limited to the misplaced argument that Batson extends to a narrow class of persons based on the combination of their race and gender. For the first time in her appellate briefing, Moore also argues that another prospective juror, Juror number 21, a white
{¶ 26} In the midst of the voir dire, at least three of the prospective jurors, including Juror number 15 аnd Juror number 21, began discussing the emotional weight associated with the consequences of finding a defendant guilty at trial. Juror number 21 acknowledged that concern, joining in the other prospective jurors’ assessments, based on her stated belief that jail time was not a “perfect response” to punishing criminal misconduct. Tr. 399:21-400:10. According to Moore, Juror number 21 expressed the same concerns that could arise as a consequence of finding a defendant guilty as did Juror number 15, so the state‘s failure to challenge Juror number 21 proves its discriminatory intent toward Juror number 15. Id.
{¶ 27} Juror number 21‘s single, isolated acknowledgment of the potential emotional toll in finding a defendant guilty is not the equivalent to Juror number 15‘s self-recognized bias against law enforcement, her self-professed inability to be
{¶ 28} Moore bears the burden of demonstrating that the state‘s use of a peremptory challenge was impermissibly based on excluding a prospective juror based on her race. Because Juror number 15 was not the only black member of the venire and Moore‘s argument is dependent on that being a fact of consequence, that argument is without merit. She has not presented any argument or identified any circumstances demonstrating a discriminatory intent on behalf of the prosecutor — Moore merely presumes the existence of discriminatory intent from the fact that Juror number 15 was a member of a cognizable class, the only member of that class to be excused from service according to what can be gleaned from the limited record
{¶ 29} In the final two assignments of error, Moore claims her conviction for felonious assault for causing serious physical harm to the victim is not based on sufficient evidence or is against the weight of the evidеnce. In a cursory fashion, Moore claims that there is no evidence that Moore was complicit in the assault because Moore‘s conduct in aiding Pouge was limited to picking up the dropped firearm. Also, according to Moore‘s characterization of the assault as being independent from Pouge‘s attack, Moore caused only minor injuries to the victim because Pouge was responsible for the serious physical harm; conduct that should not be attributed to Moore.
{¶ 30} With respect to the weight of the evidence, Moore claims that the state‘s evidence “was unreliable and its chief witness‘s testimony shot through with contradictions.” Moore has not explained or further discussed what those contradictions would be. In light of the limited argument, Moore has not demonstrated that the jury lost its way in finding her guilty of felonious assault for causing serious physical harm. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 31} With regard to the sufficiency of the evidence, beyond providing the standard of rеview, Moore provides no case authority or relevant discussion in
{¶ 32} Notwithstanding the limitations of the arguments presented, the victim testified at length, establishing that Moore and Pouge simultaneously ambushed her, beating her severely enough to cause a concussion and require a significant combination of staples and stitches to close the wounds caused by the attack. When Pouge dropped the firearm, Moore picked it up and handed it back to Pouge who continued using the firearm as a blunt object to hit the victim. Tr. 648:17-20. It was only after the serious injuries were inflicted that Moore supposedly told Pouge to stop, right before they fled together — further demonstrating that Moore was not merely a bystander. Although Pouge may have been the direct cause of the most serious of the victim‘s injuries, there is no evidence to suggest that Moore and Pouge just happened to arrive at the same time to attack the victim independent of each other. There is more than suffiсient, credible evidence establishing that the two defendants acted in concert to ambush and
{¶ 33} Moore‘s final conviction for felonious assault is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordеred that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, 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.
SEAN C. GALLAGHER, JUDGE
MICHELLE J. SHEEHAN, P.J., and
MICHAEL JOHN RYAN, J., CONCUR