APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 11 06 1716 (C)
MARK H. LUDWIG, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
CARLAMOORE, Presiding Judge.
(¶1} Defendant, Dontay D. Horton, appeals from his conviction in the Summit County Court of Common Pleas. We affirm.
(¶2} The following facts are not in dispute in this case. On the night of June 6, 2011, several individuals, including Mr. Horton, were socializing outside of an apartment building in which David Clark resided on Cole Avenue in Akron. During this time, Frank Conley drove a black Sports Utility Vehicle on Cole Avenue. Mr. Conley stopped his SUV on the street outside of Mr. Clark's residence so that his passenger, Shauntae Hill, could speak with Mr. Clark's cousin, Vinita Clark. Eric Duck, another of Mr. Clark's cousins, believed that Mr. Clark was angry with Mr. Conley. Based on this belief, Mr. Duck broke the back window of the SUV with a brick. After this, Mr. Conley drove away, and he dropped off Ms. Hill a short distance away at her house on Andrus Street, where she resided with her mother and Mr. Horton.
(¶3} Thereafter, Mr. Horton and Ms. Hill's uncle walked to the Andrus St. house from Cole Avenue. When they approached the home, Ms. Hill and her uncle began arguing regarding the incident with the brick. Mr. Horton entered the home, stayed briefly, and then walked back to Cole Avenue to the address where Mr. Clark lived. At Cole Avenue, he visited outside with a woman who lived across the street from Mr. Clark. Mr. Horton was carrying a hand gun.
(¶4} Approximately ten to fifteen minutes after Mr. Horton returned to Cole Avenue, Mr. Conley came back to Mr. Clark's residence on foot, accompanied by an individual named Anthony Board. Mr. Clark's sister confronted the men, and she became concerned because of her belief that at least one of the men was carrying a firearm. She relayed this belief to Mr. Clark. Mr. Clark entered his apartment building and retrieved a rifle. The events following this point are in dispute; however, all witnesses agreed that Mr. Clark fired a shot, and then shots were fired at Mr. Clark by Mr. Conley, Mr. Board, and/or Mr. Horton. Mr. Clark was fatally shot, and his cousin, Charles Wallace, suffered a bullet wound to his leg.
(¶5} The Summit County Grand Jury indicted Mr. Conley, Mr. Horton, and Mr. Board on charges stemming from this shooting, including purposeful murder, felony murder, and felonious assault. The cases were severed, and Mr. Horton's case proceeded to jury trial. At the close of trial, the defense requested the trial court to instruct the jury on reckless homicide as a lesser included offense of both purposeful murder and felony murder. The trial court granted the request without objection. The jury found Mr. Horton guilty of felony murder, reckless homicide and felonious assault, each with attendant firearm specifications, and of having weapons while under disability. The trial court merged the reckless homicide conviction with the felony murder conviction, and the State elected sentencing on the felony murder conviction. The trial court sentenced Mr. Horton to a total term of incarceration of twenty-two years to life. Mr. Horton timely appealed from the sentencing entry, and he now presents seven assignments of error for our review. We have re-ordered and combined certain assignments of error to facilitate our discussion.
ASSIGNMENT OF ERROR I
DENIAL OF A CHALLENGE TO THE STATE'S EXERCISE OF A P[ER]EMPTORY CHALLENGE WHICH EXCLUDED A POTENTIAL JUROR BECAUSE OF HER RACE WAS CLEARLY ERRONEOUS AND DENIED DUE PROCESS AND EQUAL PROTECTION[.]
(¶6} In his first assignment of error, Mr. Horton contends that the State's use of a peremptory challenge deprived him of his constitutional rights to due process and equal protection by denying him a fair and impartial jury venire. We disagree.
(¶7} "Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his view concerning the outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race[.]" (Internal citations and quotations omitted.) Batson v. Kentucky, 476 U.S. 79, 89 (1986). A defendant has a "right to be tried by a jury whose members are selected by nondiscriminatory criteria." Powers v. Ohio, 499 U.S. 400, 404 (1991). This Court reviews whether a party exercised its peremptory challenges in a discriminatory manner under the clearly erroneous standard. Hernandez v. New York, 500 U.S. 352, 364-65 (1991); see also State v. Vinson, 9th Dist. Summit No. 23739, 2007-Ohio-6045, ¶ 21, and Akron v. Burns, 9th Dist. Summit No. 21338, 2003-Ohio-3785, ¶ 15.
(¶8} Courts employ a three-part test to determine whether a peremptory challenge is based on race. State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, ¶ 106; State v. Jones, 9th Dist. Summit No. 22231, 2005-Ohio-1275, ¶ 27. First, the defendant must establish a prima facie case of discriminatory use of peremptory challenges by the prosecution. Batson at 96-97.
(¶9}Second, after the defendant makes his prima facie case, the burden shifts to the prosecution to provide a race-neutral explanation for the peremptory challenge. Id. at 97. To meet its burden, "the prosecut[ion] must give a clear and reasonably specific explanation of [its] legitimate reasons for exercising the challenge[.]" (Internal citations and quotations omitted.) Batson at 98, fn. 20. This explanation must be "based on something other than the race of the juror." Hernandez at 360. However, the prosecution does not have to provide "an explanation that is persuasive, or even plausible." Purkett v. Elem, 514 U.S. 765, 768 (1995). "[T]he issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral." (Quotations and citation omitted.) Id "Unlike challenges for cause, a peremptory challenge may be exercised for any racially-neutral reason." (Emphasis sic.) State v. Moss, 9th Dist. Summit No. 24511, 2009-Ohio-3866, ¶ 12.
(¶10} In the third step of the Batson analysis, the trial court must determine whether, under all the relevant circumstances, the defendant has met his burden of proving purposeful racial discrimination. Batson at 96-97. The trial court must consider the persuasiveness and credibility of the justification offered by the prosecution. Hicks v. Westinghouse Materials Co., 78 Ohio St.3d 95, 99 (1997), citing Purkett at 768. It must determine whether the neutral explanation offered by the prosecution is credible or is instead a pretext for unconstitutional discrimination. Hernandez at 363. The trial court's finding turns largely on evaluations of credibility and is given great deference. Batson at 98, fn. 21.
(¶11} Here, the State peremptorily challenged an African-American juror. Defense counsel objected, and, without requiring the defense to make a prima facie case of racial discrimination, the trial court requested the State to produce a "non-race ground for excusing" the juror. The State responded that the potential juror had expressed that she had a "very close relationship with two defense attorneys that are very - I guess at least one of them is a very aggressive criminal defense lawyer that has particular views that I am aware of that, you know, concern me." The State further explained those views were "aggressive views * * * regarding evidence in cases and things of that nature and how he tries cases. And, you know, once - you know, having tried cases with him before and how he tries them, and how he talks about the guilt or innocence of individuals, if they are that close and he has, I guess, relayed that to her, I would be concerned that she is somewhat slanted in that direction." Further, the State responded that the juror had stated that she previously had served on a jury that had found a defendant not guilty. The trial court accepted these reasons as constituting legitimate grounds for exercising the peremptory challenge and excused the juror.
(¶12} As part of his first assignment of error, Mr. Horton claims that he was denied due process because the trial court "summarily overruled the Batson challenge, " without "further discussion or providing the defense" with an opportunity to be heard as to the State's purportedly race-neutral rationale for challenging the juror. However, the record here does not indicate that defense counsel requested or otherwise attempted to be heard on the issue. Nor did counsel object when the court moved forward on its Batson ruling. Moreover, Mr. Horton does not further develop his argument or provide citations to any authority which requires the trial court to specifically inquire of a defendant his position as to the State's race-neutral rationale. This fact notwithstanding, this Court has previously suggested with regard to Batson challenges that a defendant may be required to raise his argument at the trial court level to avoid the danger of forfeiting the argument on appeal. State v. Bowden, 9th Dist. Summit No. 24767, 2010-Ohio-758, ¶ 9 (noting that defendant's pretext argument was not raised in the trial court, but addressing the argument on appeal by "[a]ssuming, without deciding, " that we were required to do so), and State v. Watson 9th Dist. Summit No. 25229, 2011-Ohio-2882. See also State v. Zepeda-Ramires, 9th Dist. Lorain No. 12CA010275, 2013-Ohio-1224, ¶ 7 ("A fundamental rule of appellate review is that a reviewing court will not consider as error any issue that a party was aware of but failed to bring to the trial court's attention." (Citations omitted.)). If a defendant must raise a pretext argument in the trial court in order to preserve it for purposes of appeal, it would appear that he or she must be given the opportunity to do so after the prosecutor has presented the race-neutral rationale for challenging a juror. But see State v. Williams, 10th Dist. Franklin No. 03AP-24, 2003-Ohio-5761, ¶ 25 ("[a]lthough defendant argues that, once the prosecution offered its rationale, defense counsel should have been permitted to rebut those reasons and show pretext; the case law does not include such a requirement"). In any event, we have determined, under the facts of this particular case, that Mr. Horton did not attempt to respond to the prosecutor's presentation or object to the court's ruling without having given him an opportunity to argue pretext. Therefore, we find Mr. Horton's limited argument on this point to lack merit.
(¶13} Next, Mr. Horton maintains that the State's justification for challenging the juror based upon her close relationship with the defense attorneys was not race-neutral because the attorneys that the juror had referenced are African-American. Aside from the impediment to this argument that the race of the referenced lawyers appears nowhere in the record, the State's purported concern was that one of the lawyers may have communicated his "aggressive views" on evidence and trial tactics to the juror. Here, nothing in the State's response inherently indicates a discriminatory intent based upon the juror's race.
(¶14} Mr. Horton further maintains that the State's response that the potential juror had previously served on a jury that acquitted a defendant amounted to pretext because another juror also had served on a jury that acquitted a criminal defendant, and the State did not challenge the other juror. As set forth above, the record does not indicate that Mr. Horton made or attempted to make this argument at the trial court level. Therefore, "the trial court had no opportunity to consider it." See Bowden at ¶ 9. Nonetheless, the Supreme Court of the United States has determined that, where a prosecutor's proffered reason for peremptorily challenging an African-American juror applies to an unchallenged juror who is not African-American, this is evidence indicating purposeful discrimination relevant to the third step of the Batson analysis. Id., quoting Miller-El v. Dretke, 545 U.S. 231, 241 (2005). See also Watson at ¶ 11.
(¶15} Assuming, without deciding, that we are required to review Mr. Horton's argument, we are not persuaded. See Bowden at ¶ 9. The other juror who had previously served on a jury that acquitted a defendant did not also indicate a similar close relationship with defense attorneys. Based upon the additional basis for the challenge, we cannot say that the trial court was clearly erroneous in not finding that the State's explanation was pretext for purposeful discrimination. Accordingly, Mr. Horton's first assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE CONVICTION FOR FELONY MURDER MUST BE VACATED BECAUSE THE INDICTMENT FAILED TO CHARGE ANY MENS RE[A] ELEMENT FOR THE OFFENSE CONTRARY TO CONSTITUTIONAL RIGHTS TO GRAND JURY INDICTMENT AND DUE PROCESS.
ASSIGNMENT OF ERROR IV
CONVICTION FOR FELONY MURDER ABSENT ANY PREDICATE OFFENSE AFTER JURY VERDICTS OF NOT GUILTY OF PURPOSEFUL MURDER AND GUILTY OF RECKLESS HOMICIDE VIOLATED DUE PROCESS, EQUAL PROTECTION AND DOUBLE JE[O]P[A]RDY PROTECTIONS[.]
(¶16} In his third assignment of error, Mr. Horton argues that his felony murder conviction must be vacated because the indictment failed to charge a mens rea. In his fourth assignment of error, Mr. Horton challenges his felony murder conviction on the basis that the jury found him guilty of felony murder without finding that he acted with the requisite mens rea of "knowingly" for the predicate offense of felonious assault. We disagree.
(¶17} Mr. Horton was charged with felony murder in Count 10 of a second supplemental indictment. Count 10 read:
And the Grand Jurors of the State of Ohio, within and for the body of the County of Summit aforesaid, on their oaths in the name and by the authority of the State of Ohio, DO FURTHER FIND AND PRESENT, that c) DONTAY D. HORTON on or about the 6th day of June, 2011, in the County of Summit and State of Ohio, aforesaid, did commit the crime of MURDER in that he did purposely cause the death of David Clark, and/or did cause the death of David Clark as a proximate result of C) DONTAY HORTON committing or attempting to commit Felonious Assault, an offense of violence that is a felony of the first or second degree, in violation of Section 2903.02(A)/(B) of the Ohio Revised Code, A SPECIAL FELONY, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio.
(Capitalization sic.) Prior to jury deliberations, the State moved to amend Count 10 to eliminate that portion that alleged that Mr. Horton purposely caused the death of Mr. Clark pursuant to R.C. 2903.02(A), as this charge was contained in Count 1 of the original indictment. The count was amended without objection. At no time before, during or after trial, did Mr. Horton object to the indictment on the basis that the felony murder charge made pursuant to R.C. 2903.02(B) failed to set forth a mens rea.
(¶18} When a defendant fails to preserve objection to a purported defect in the indictment, he forfeits all argument but that of plain error. State v. Horner, 126 Ohio St.3d 466 (2010), at paragraph three of the syllabus. Moreover, in Horner at paragraph one of the syllabus, the Ohio Supreme Court held that "[a]n indictment that charges an offense by tracking the language of the criminal statute is not defective for failure to identify a culpable mental state when the statute itself fails to specify a mental state." Therefore, where the indictment tracks the statutory language, the failure to include a mens rea element in the indictment does not amount to plain error. See id.; see also State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 37. R.C. 2903.02(B) provides, "No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code." The felony murder charge contained in Count Ten above tracked this language.
(¶19} Therefore, "Mr. [Horton] did not object to the indictment prior to trial, so he has forfeited all but plain error in regard to this assignment of error. Mr. [Horton]'s indictment is not defective for failure to include a mens rea for felony murder because the indictment tracked the language of Section 2903.02(B) of the Ohio Revised Code, which does not specify a mens rea." State v. Benford, 9th Dist. Summit No. 25298, 2011-Ohio-564 ¶ 21, citing Horner, at paragraph one of the syllabus. Accordingly, Mr. Horton's third assignment of error is overruled.
(¶20} Although R.C. 2903.02(B), defining felony murder, does not contain a mens rea component, "a person commits felony murder pursuant to R.C. 2903.02(B) by proximately causing another's death while possessing the mens rea element set forth in the underlying felony offense." State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶ 43. Here, the predicate offense was that of felonious assault. The mens rea required for felonious assault is that of "knowingly." R.C. 2903.11(A).
(¶21} Mr. Horton was not separately charged with felonious assault as to Mr. Clark. However, he was charged with felonious assault with respect to Mr. Duck and Mr. Wallace. When the trial court instructed the jury as to the felonious assault charge relative to Mr. Wallace, the trial court explained to the jury:
The defendant is charged in Count 2 with the offense of felonious assault. Before you can find the defendant guilty of this offense, you must find beyond a reasonable doubt that on or about the 6th day of June, 2011, and in Summit County, Ohio, the defendant did knowingly cause serious physical harm to Charles Wallace, and/or did knowingly cause or ...