[Cite as State v. Davenport,

.]

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 2

-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 6 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),

,

,

, 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,

,

,

, ¶64. First, the opponent of

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

“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),

,

.

{¶ 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,

,

,

, ¶106. The explanation need not rise to the

level justifying exercise of a challenge for cause.

{¶ 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,

, 256,

,

. 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),

,

,

,

quoting Purkett v. Elem (1995),

,

,

(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,

,

,

, ¶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,

, citing Batson,

.

{¶ 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),

,

, citing State v. Hernandez

(1992),

,

. 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,

.

{¶ 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.

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,

. 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,

,

citing State v. Tenace,

,

,

. 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),

,

,

; State v. Jenks (1991),

,

, paragraph two of the syllabus; State v. Carter (1995),

,

.

{¶ 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. 13

{¶ 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,

,

,

, 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,

, 1997–Ohio–52,

. 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.

,

. 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.

at 386–387,

. 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.

,

. ‘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.’

,

, citing Tibbs v. 14 Florida (1982),

,

,

.”

{¶ 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,

, citing State

v. DeHass (1967),

,

. 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,

.

{¶ 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