[Cite as State v. Trevino, 2026-Ohio-3526.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-250382
TRIAL NO. 24/CRB/4719/B
Plaintiff-Appellee, :
vs. :
FERNANDO TREVINO, : JUDGMENT ENTRY
Defendant-Appellant. :
This cause was heard upon the appeal, the record, the briefs, and arguments.
For the reasons set forth in the Opinion filed this date, the judgment of the trial court is reversed and the cause is remanded.
Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24.
The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk:
Enter upon the journal of the court on 9/9/2026.
Pursuant to App.R. 30, the clerk is directed to send all parties, or their counsel if represented, a copy of the court’s judgment and note such action on the docket.
By:_______________________
Administrative Judge
[Cite as State v. Trevino, 2026-Ohio-3526.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-250382
TRIAL NO. 24/CRB/4719/B
Plaintiff-Appellee, :
vs. :
FERNANDO TREVINO, : OPINION
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: September 9, 2026
Emily Smart Woerner, City Solicitor, Susan Zurface, Chief Prosecuting Attorney, and Joseph M. Cossins, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Angela Chang, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellant.
[Cite as State v. Trevino, 2026-Ohio-3526.]
KINSLEY, Presiding Judge.
{¶1} Defendant-appellant Fernando Trevino appeals the judgment of the
Hamilton County Municipal Court finding him guilty of soliciting, a misdemeanor of
the third degree. Trevino raises four assignments of error. In the first, he argues under
Batson v. Kentucky, 476 U.S. 79 (1976), that the prosecutor improperly excluded two
prospective jurors from serving on the jury on the basis of their race. In the second,
third, and fourth, he contends that the trial court erred in allowing a police officer to
testify after the State failed to disclose her as a witness, that the prosecutor improperly
vouched for the State’s witness during closing arguments, and that his conviction was
against the manifest weight of the evidence.
{¶2} We agree with Trevino that the trial court erred by overruling his Batson
challenge. Even affording the trial court’s decision substantial deference, as we are
required to do on appeal, the record before us reveals that the State’s explanation for
its decision to remove at least one of the identified prospective jurors was pretextual
rather than race-neutral. When asked to provide her rationale for using the majority
of the State’s peremptory strikes to excuse the only two African-American females
from the jury, the prosecutor proffered a plausible reason—that a relative of one of the
African-American jurors had served time in prison. But a similarly-situated white
prospective juror, who also had a family member with ties to the criminal legal system
was not stricken, even though that prospective juror expressed hostility towards law
enforcement and the African-American juror did not. Defense counsel pointed to this
comparator juror as evidence of pretext.
{¶3} Faced with this factual landscape, the trial court improperly truncated
its analysis of Trevino’s Batson challenge. It accepted the State’s proffered raceneutral explanation without considering the impact of the State’s decision not to strike
OHIO FIRST DISTRICT COURT OF APPEALS
the white prospective juror. As we explain in this opinion, and based on the wellsettled precedent of the United States Supreme Court, this was error. We accordingly
reverse Trevino’s conviction and remand the cause to the trial court.
Background
{¶4} On March 6, 2024, the Cincinnati Police Department employed Officer
Sarah Cronin to pose as an undercover sex worker. While standing on a corner, she
greeted Trevino and chatted with him, introducing herself as “Sidney.” At the end of
their conversation, Trevino gave Cronin his phone number, which Cronin then gave to
Officer Josh Espitia. Posing as “Sidney,” Espitia texted Trevino that evening, and the
two exchanged text messages for several days. On March 21, 2024, Trevino sent
“Sidney” a text message offering ten suboxone pills in exchange for sex. They planned
to meet that afternoon. When he arrived at the agreed-upon location, Trevino was
arrested and charged with solicitation and possession of criminal tools, both
misdemeanors.
{¶5} Trevino elected to try his case to a jury. During jury selection, the State
used two of its three peremptory challenges to excuse the venire’s only two AfricanAmerican women, Juror 7 and Juror 10. After the State excused Juror 10, Trevino’s
attorney lodged a Batson challenge, noting “So far, both individuals who have been
excused via peremptory challenges by the City have been black women, racial
minorities. My client is also a racial minority . . . .”
{¶6} The trial court asked the prosecutor to explain the State’s rationale. As
to Juror 10, the prosecutor referenced the juror’s disclosure in voir dire that her son
had recently been convicted of burglary and sentenced to three years in prison. This
led the prosecutor to fear that Juror 10 would be biased against prosecutors or police
or would feel sympathy towards Trevino. The prosecutor made this argument even
4
OHIO FIRST DISTRICT COURT OF APPEALS
though Juror 10 herself had dispelled the exact concerns the State expressed. More
specifically, when asked by the prosecutor in voir dire whether there was “anything
about [her] involvement in [her son’s case] that would affect [her] ability to be fair and
impartial and in making [her] decision here today,” Juror 10 said, “No.” She also
denied that “anything about that experience would affect [her] and [her] decision if
[she] were to sit on a jury here today.” When asked more specifically whether she had
any feelings about police officers to share and whether she had any “bad feelings about
the prosecutor or police officers” in her son’s case, she also said, “No.”
{¶7} As to Juror 7, the prosecutor recounted that she “kind of routinely said
she did not trust the police” and that she had concerns about officers who falsify
evidence. But this was not exactly what Juror 7 had said in voir dire. In response to
being asked her thoughts about undercover officers, she said, “I don’t have any
negative thoughts. They serve a purpose, to investigate.” Juror 7 did suggest, however,
that police might not always be truthful. When asked by the prosecutor, “Is there
anything about the work [police officers] do that would lead you to think a crime hadn’t
been committed if somebody was dealing or interacting with an undercover police
officer?,” she responded, “No, unless they falsified any evidence.” She further
indicated that, in her view, police can “sometimes . . . be biased against people of
color.” But the only example she gave of this bias was in the use of excessive force, a
situation the prosecutor was clear did not exist in this case. Juror 7 also said that she
would follow the law even if she thought the police were being unfair. After the
prosecutor argued that Juror 7 routinely said she did not trust police, the trial court
reviewed Juror 7’s jury questionnaire, on which she wrote, “I lack confidence in police
officers.”
{¶8} Defense counsel then attempted to rebut the prosecution’s race-neutral
5
OHIO FIRST DISTRICT COURT OF APPEALS
explanations for both prospective jurors. As to Juror 10, defense counsel pointed to
two specific facts that rendered the State’s explanation unsatisfactory. First, defense
counsel highlighted that Juror 10 was directly asked whether she would be biased
against the prosecution and indicated that she would not. Thus, in the defense’s view,
Juror 10 had directly dispelled the concern that the State raised that she might be
motivated against the prosecution or for the defense based on her son’s experience.
Second, defense counsel argued that there were other prospective jurors whose family
members had been charged or convicted of crimes who were not the subject of
peremptory challenges by the State—in particular a white female juror, Juror 14,
whose sister had been charged with a crime. This other juror differed from Juror 10
only by race. That being the case, the defense argued, the potential for bias arising
from a family member’s conviction could not be the real reason for Juror 10’s strike.
Rather, the State’s use of a peremptory challenge had to be racially motivated.
Responding to the difference in the two jurors, the State pointed to the fact that the
conviction of Juror 10’s son was recent and that the sister’s criminal charge was a
“wrong place/wrong time” situation.
{¶9} Addressing Juror 7 and the statement about police officers on her
questionnaire, defense counsel argued that the State had rehabilitated the juror’s
statement in voir dire. In questioning the juror, the prosecutor elicited comments that
the juror did in fact trust police and was only skeptical in situations where officers
planted evidence, which she described as an “egregious, rare circumstance.” For this
reason, defense counsel argued that the State had been inaccurate in describing the
basis for its race-neutral explanation.
{¶10} After hearing defense counsel’s arguments, the trial court denied the
Batson challenge. In doing so, it said, “[The prosecutor] has at least identified two
6
OHIO FIRST DISTRICT COURT OF APPEALS
areas that she has grounds or finds she has or believes she has grounds to exclude, so
I’m going to deny the Batson motion.” In relying solely on the prosecutor’s belief, the
trial court did not expressly resolve the question of whether the prosecutor’s
arguments were pretextual, particularly as they applied to Juror 10 and the white
female juror whose sister had been criminally charged.
{¶11} A jury was then empaneled and sworn that included no female AfricanAmerican jurors.
{¶12} Following the presentation of evidence, the jury found Trevino guilty of
solicitation and not guilty of possession of criminal tools. Trevino appealed. 1
Analysis
{¶13} We begin with Trevino’s first assignment of error, in which he contends
that the trial court erred in denying his Batson challenge as to Jurors 7 and 10.
A. The Batson Standards
{¶14} Ordinarily, a prosecutor may exercise a peremptory challenge “for any
reason, or no reason at all.” Hernandez v. New York, 500 U.S. 352, 374 (1991). But a
defendant has “the right to be tried by a jury whose members are selected pursuant to
non-discriminatory criteria.” Batson, 476 U.S. at 85-86. Therefore, “[t]he
Constitution forbids striking even a single prospective juror for a discriminatory
purpose.” Flowers v. Mississippi, 588 U.S. 284, 303 (2019). In Batson, the Supreme
Court established a three-step procedure for evaluating claims of racial discrimination
in peremptory strikes: “First, the opponent of the strike must make a prima facia
1 The trial court sentenced Trevino to a $250 fine and ordered him to pay $130 in court costs and a
$25 public defender fee. Trevino paid the fine and court costs but has not paid the $25 public defender fee. On October 6, 2025, that amount was sent to collections and still remains unpaid. The appeal of a misdemeanor conviction is not moot when a defendant’s fines, fees, or costs remain unpaid. See State v. Henderson, 2024-Ohio-2312, ¶ 18-19 (1st Dist.). Because Trevino’s $25 public defender fee remains outstanding, this appeal is not moot; however, payment of that fee would have rendered this appeal moot.
7
OHIO FIRST DISTRICT COURT OF APPEALS
showing of discrimination. Second, the proponent must give a race-neutral
explanation for the challenge. Third, the trial court must determine whether, under
all the circumstances, the opponent has proven purposeful racial discrimination.”
State v. White, 85 Ohio St.3d 433, 436 (1999), citing Batson at 96-98.
{¶15} To meet the first prong of Batson, a challenger must demonstrate that
(1) the prosecution used a peremptory challenge to excuse a member of a cognizable
racial group, and (2) the facts and any other relevant circumstances raise an inference
that the prosecution used the peremptory challenge to exclude a juror on account of
race. Ohio v. Williams, 2021-Ohio-3491, ¶ 25 (10th Dist.). Whether a defendant
satisfied these standards is a moot question if the trial court moves to the second step
of Batson. Hernandez at 359; State v. Akins, 2024-Ohio-1491, ¶ 14 (1st Dist.).
{¶16} At step two of Batson, the proponent of the peremptory challenge is
required to provide a race-neutral explanation for the strike. White at 436. To do so,
the prosecution must “give a clear and reasonably specific explanation of [its]
legitimate reasons for exercising the challenge.” State v. Berry, 2019-Ohio-3902, ¶ 13
(10th Dist.). The explanation, however, need not rise to the level of a challenge for
cause. Id. But prosecutors must nonetheless “be scrupulous in building a record
which legitimately demonstrates their articulated concern.” State v. Manns, 2006-Ohio-5802, ¶ 50 (2d Dist.).
{¶17} Finally, step three of Batson involves two components. First, the trial
court must afford defense counsel “a sufficient opportunity to rebut the prosecutor’s
proffered race-neutral reasons for striking” the challenged jurors. Pitchford v. Cain,
___ U.S. ___, 146 S.Ct. 1345, 1351-1352 (2026). Then, after hearing the defendant’s
arguments, the trial court must itself “determine[] whether the prosecutor’s stated
reasons were pretextual.” Id. at 1352. In doing so, the trial court must consider all of
8
OHIO FIRST DISTRICT COURT OF APPEALS
the circumstances to assess whether the party opposing the peremptory challenge has
proved purposed racial discrimination. State v. Adams, 2015-Ohio-3954, ¶ 160. In
determining pretext, a pattern of using multiple peremptories against racial minorities
might give rise to an inference of discrimination. Flowers, 588 U.S. at 307, citing
Batson, 476 U.S. at 97. Pattern or not, the trial court must decide at step three whether
the reason the prosecutor offered at step two is credible. State v. Thompson, 2014-Ohio-4751, ¶ 62. It cannot “simply accept a proffered race-neutral reason at face value,
but must examine the prosecutor’s challenges in context to ensure that the reason is
not merely pretextual.” State v. Frazier, 2007-Ohio-5048, ¶ 65.
{¶18} The trial court need not make specific factual findings in resolving the
third step of Batson. Id. at ¶ 98. Rather, it may deny a Batson challenge in summary
form, by clearly rejecting the challenge, such as by stating on the record that the
prosecutor offered a “racially-neutral reason” for the strike. Adams at ¶ 160-161. “The
trial court’s finding at step three is entitled to deference, since it turns largely on
evaluation of credibility.” (Cleaned up.) Thompson at ¶ 53.
{¶19} In determining at the third step whether a prosecutor’s explanation is
sufficiently race-neutral or is instead a pretext for racial discrimination, courts
consider a range of factors that may individually or collectively establish pretext. See
State v. Singer, 2019-Ohio-1922, ¶ 24 (6th Dist.), citing Ex parte Branch, 526 So.2d
609 (Ala. 1987). These include:
(1) Whether the prosecutor’s proffered reasons for the peremptory strike
are not related to the facts of the case. Id. This occurs when the prosecution’s
proffered reason for striking a juror is factually contradicted by the record. See, e.g.,
Snyder v. Louisiana, 552 U.S. 472, 479-483 (2008) (finding a Batson violation, even
under a highly deferential standard of review, where the prosecution based its strike
9
OHIO FIRST DISTRICT COURT OF APPEALS
on a juror’s absence from his student teaching obligation, despite the fact that the dean
of the student’s school had reported the absence not to be a problem and the student
had expressed no further concerns about jury service).
(2) Whether the prosecutor failed to ask questions in voir dire of the
challenged juror or did not ask meaningful questions. Singer at ¶ 24.
(3) Whether the prosecutor did not strike members of the venire with the
same or similar characteristics of the challenged juror, signaling disparate treatment.
Id. As the United States Supreme Court has held, a trial court’s denial of a Batson
challenge is clearly erroneous when it does not take into account a prosecutor’s
dissimilar treatment of white jurors who also present the same concerns that
precipitate the challenged strike. Snyder at 474, 483 (“The implausibility of the
prosecutor’s explanation is reinforced by his acceptance of white jurors who disclosed
conflicting obligations that appear to have been at least as serious as [the challenged
juror’s].”); see Miller-El v. Dretke, 545 U.S. 231, 252 (2005) (“Comparing his strike
with the treatment of panel members who expressed similar views supports a
conclusion that race was significant in determining who was challenged and who was
not.”).
(4) Whether members of the venire were examined in a disparate fashion
during voir dire, e.g., whether the prosecutor asked a question designed to provoke a
disqualifying response to black jurors but not white jurors. See Flowers, 588 U.S. at
308. The United States Supreme Court considered the relevance of this factor in
Flowers, noting that prosecutors asked 29 questions in voir dire per black juror but
only one question per white juror. Id. While it held that this criterion alone was not
enough to constitute a Batson violation, it credited the prosecutor’s disparate
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OHIO FIRST DISTRICT COURT OF APPEALS
treatment of black and white jurors in voir dire as a basis for finding racial
discrimination in combination with other factors. Id. at 310.
(5) Whether the prosecutor’s use of peremptory challenges eliminates all
remaining racial minorities on the jury. Singer at ¶ 24. A prosecutor need not strike
all of the racial minorities from the venire for this criterion to support a finding of
discrimination. As the Supreme Court noted in Flowers, striking five of six black
jurors from the venire raised an inference that the prosecution violated Batson.
Flowers at 315.
(6) Whether the prosecutor offers an explanation based on group bias
where the group trait is not shown to apply to the challenged juror specifically, e.g.,
assuming teachers as a class are “too liberal” without directing any specific questions
to the individual juror to show the juror’s “potentially liberal nature.” Singer at ¶ 24.
{¶20} The Sixth District applied these factors to the prosecutor’s use of a
peremptory strike to excuse the venire’s sole African-American juror in Singer. Id. at
¶ 5. The trial court had permitted the strike on the basis of the prosecutor’s proffered
race-neutral reasons, which included the juror’s youth, hair color, lack of education,
and employment as a custodian. Id. But on appeal, the Sixth District reversed, finding
the prosecutor’s explanation to be pretextual. Id. at ¶ 40-41. As to the first and sixth
factors, the court highlighted the absence of any information that connected the juror’s
youth and educational status to an inability to serve as a juror, specifically faulting the
State for “fail[ing] to provide any explanation as to why this case required a juror with
a certain degree of education or maturity.” Id. at ¶ 29-31. As to the second factor, the
court noted that the State asked the challenged juror a single question in voir dire
which was unrelated to its ultimate reasons for striking her. Id. at ¶ 32-33. In
considering whether similarly-situated white jurors were also subject to challenge, the
11
OHIO FIRST DISTRICT COURT OF APPEALS
court found it “peculiar” that the State did not strike at least four other white jurors
with educational levels comparable to the challenged juror’s. Id. at ¶ 34. As to the
fifth factor, the court acknowledged that the State used only one of its four peremptory
challenges to strike an African-American juror. Id. at ¶ 37. But as to the fourth factor,
it concluded that the prosecutor had not disparately questioned the prospective jurors
and had not attempted to provoke disqualifying responses as a result. Id. at ¶ 36. Even
though not all of the factors weighed in favor of pretext, the Sixth District still
concluded that the trial court erred in denying the Batson challenge and reversed the
defendant’s conviction. Id. at ¶ 40-41.
{¶21} Singer’s holding is consistent with a litany of United States Supreme
Court cases that find Batson violations by employing robust step-three analysis. For
example, in Snyder, 552 U.S. at 479-483, the Supreme Court found the trial court’s
Batson challenge denial clearly erroneous when it implicitly relied upon an
explanation by the prosecutor that was belied by the factual record. As one rationale
for its peremptory strike, the prosecution cited the challenged juror’s statement during
voir dire that he was a college student participating in student teaching as part of his
course of study. Id. at 478. He shared a concern that missing class would cause him
not to complete this degree requirement. Id. at 480. But the trial court then had its
law clerk contact the student’s college dean, who relayed to the student and the trial
court that the student could serve on the jury without compromising his student
teaching obligation. Id. at 481. After that, the student never brought up the concern
again. Id. Against this backdrop, the Supreme Court considered the prosecutor’s
concern to be “implausible” and therefore a pretext. Id. at 483-484. And because it
was pretextual, it gave rise to an inference that it was discriminatory. Id. at 485.
{¶22} Similarly, in State v. Kirk, 2019-Ohio-3887, ¶ 51 (8th Dist.), the Eighth
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OHIO FIRST DISTRICT COURT OF APPEALS
District reversed the trial court’s denial of a defendant’s Batson challenge where the
prosecutor advanced unsupported assumptions about an African-American juror’s
fitness to serve on the jury. When asked about his occupation, the juror indicated that
he worked as an engineer at a hotel, performing maintenance tasks like repairing the
air conditioning and fixing the lights. Id. at ¶ 40. The prosecutor took issue with the
juror’s use of the term “engineer” to describe this work, characterizing his response as
“up stating” and not “fully honest.” Id. The prosecutor also contended that the juror
displayed inattentive body language which, in combination which his dishonest
response, justified excusing the juror from service. Id. The court of appeals disagreed.
Id. at ¶ 51. It noted that the juror responded truthfully, articulately, and appropriately
to the prosecutor’s voluminous questions in voir dire, which was at odds with the
prosecutor’s characterization of the juror. Id. In finding pretext, the appellate court
weighed the fact that the juror himself expressed no reservations about his ability to
serve against the prosecutor’s unfounded assumption that the juror was dishonest. Id.
{¶23} We find Singer, Snyder, and Kirk particularly instructive in resolving
Trevino’s claim of pretext in this case.
B. Trevino’s Argument on Appeal
{¶24} Turning to Trevino’s argument, he contends the trial court improperly
denied his Batson challenge because the State’s explanations for striking Jurors 7 and
10 were pretextual rather than race-neutral. We agree, at least as to Juror 10. And
because the improper exclusion of even a single juror violates Batson, we focus our
analysis on the circumstances of Juror 10’s peremptory strike. See Flowers, 588 U.S.
at 303.
{¶25} To begin, we address the level of deference owed to the trial court’s
findings. A trial court’s finding of nondiscrimination at step three of Batson is entitled
13
OHIO FIRST DISTRICT COURT OF APPEALS
to deference because it is essentially an evaluation of the prosecutor’s credibility.
Akins, 2024-Ohio-1491, at ¶ 13 (1st Dist.). But here we are unable to discern whether
the trial court actually reached step three. Rather than denying Trevino’s Batson
challenge outright, which would permit us to presume the trial court considered all of
the circumstances Trevino raised as pretext, the trial court instead ruled on the basis
of what the prosecutor believed: “[The prosecutor] has at least identified two areas
that she has grounds or finds she has or believes she has grounds to exclude, so I’m
going to deny the Batson motion.” This sounds more like a finding under step two,
which tests the neutrality of the prosecutor’s explanation on its face. And we do not
defer to the trial court’s legal conclusions at step two. See, e.g., United States v.
Kimbrel, 532 F.3d 461, 467-468 (6th Cir. 2008).
{¶26} But even affording deference to the trial court’s Batson challenge denial
as if it were a step-three finding, the record reveals that prosecutor’s explanation as to
Juror 10 was in fact pretextual. This conclusion arises from the Supreme Court’s
determinations in Snyder, 552 U.S. 472, and Flowers, 588 U.S. 284, as well as the
Sixth District’s holding in Singer, 2019-Ohio-1922 (6th Dist.). In all three cases, a
similar combination of factors resulted in a finding of clear error—(1) the contradiction
of the prosecutor’s explanation to the actual facts of the case, (2) the lack of meaningful
questions by the prosecutor connected to one basis for the strike, (3) the prosecutor’s
failure to strike a prospective white juror with the same characteristic giving rise to
the concern, (4) the prosecutor’s use of multiple peremptory challenges to strike nearly
all African-American jurors from the jury, and (5) the prosecutor’s reliance on an
explanation based on group bias in the absence of any evidence that the group trait
applied to the challenged juror. See Snyder at 479-485; Flowers at 302; Singer at ¶
24-41. In all three cases, the trial court’s denial of a Batson challenge was reversed.
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OHIO FIRST DISTRICT COURT OF APPEALS
1. Disconnect between the Prosecutor’s Explanation
and the Facts of the Case
{¶27} The prosecutor claimed to strike Juror 10 because her son’s criminal
conviction might bias her against the State and police. But Juror 10 answered
numerous questions in voir dire indicating the opposite. In response to the
prosecutor’s inquiry, she indicated that she held no such bias and that her son’s case
would not affect her ability to serve.
{¶28} This case is similar to Snyder, in that the factual record conflicts with
the prosecutor’s proffered explanation. In Snyder, the prosecutor offered the juror’s
student teaching obligation as one basis to justify striking him from the jury. Snyder,
552 U.S. at 479. But the record did not support that the juror in fact had such an
obligation that would conflict with his ability to fulfill his jury service, which rendered
the prosecutor’s explanation “suspicious.” Id. at 479-483. As in Snyder, the
prosecutor’s explanation in Trevino’s case was similarly “implausib[le]” and, by
inference, discriminatory. See id. at 483; see also Foster v. Chatman, 578 U.S. 488,
506-507 (2016) (describing a prosecutor’s proffered explanation for a race-based
peremptory strike as “difficult to credit” when it was factually contradicted by the
record). This factor is suggestive of pretext.
2. Lack of Meaningful Questions
to Support the Prosecutor’s Explanation
{¶29} In addition to explaining that its strike was based on a concern that
Juror 10 would be biased against the State, the prosecution also argued that Juror 10’s
experience with her son might cause her to be biased in favor of Trevino. But it asked
no meaningful questions to ferret out this concern. At most, it asked whether
“anything about that experience would affect [her] and [her] decision if [she] were to
sit on a jury here today.” But it never asked how she felt about Trevino in particular
15
OHIO FIRST DISTRICT COURT OF APPEALS
or if she harbored any particular sympathy for him.
{¶30} In Singer, the Sixth District held that a prosecutor’s failure to ask
meaningful questions about the basis of his concern—a prospective juror’s lack of
education—was indicative of pretext. Singer, 2019-Ohio-1922, at ¶ 32-33 (6th Dist.).
The juror’s questionnaire indicated that she was employed as a custodian, which
perhaps implied a lack of advanced education, but did not otherwise indicate how
much education the juror had completed. Id. at ¶ 32. The court noted that if the
prosecutor were in fact so concerned about the juror’s education level, he would have
asked additional questions to learn the answers. Id. at ¶ 33.
{¶31} Like in Singer, the prosecutor’s failure to ask questions about how Juror
10’s experience with her son may have affected her view of Trevino suggests pretext.
Juror 10’s questionnaire merely disclosed that her son had been convicted of a crime
and was serving a three-year sentence. It did not contain any indication of how that
situation may have evoked sympathy for Trevino, if at all. If the prosecutor truly felt
this was a risk, she could and should have asked. The lack of meaningful questions in
this area suggests pretext.
3. Similarly-Situated White Juror
{¶32} The prosecution struck Juror 10 because of her son’s criminal case but
did not exercise a peremptory to strike Juror 14, a white female juror with an arguably
more prejudicial circumstance. Like Juror 10, Juror 14 also had a family member
charged with a crime—her sister. But unlike Juror 10, Juror 14 disclosed that she had
some “mixed feelings” about police. In response to questioning from the prosecutor,
she said she would put them aside if she were called to serve on the case. Notably,
however, the prosecutor never asked her to describe what the “mixed feelings” were, a
question that would have been relevant if the prosecutor were actually seeking to
16
OHIO FIRST DISTRICT COURT OF APPEALS
unearth potential jury bias.
{¶33} The prosecutor’s use of peremptory strikes to exclusively excuse
African-American jurors who present the same concerns as similarly-situated white
jurors has been the most consistent basis on which courts find clear error in a trial
court’s Batson challenge denial.2 This was the case in Snyder, 552 U.S. at 479-483,
where several prospective white jurors presented the same types of scheduling
concerns that the challenged black juror raised but were left on the jury; in Flowers,
588 U.S. at 313-315, where prosecutors struck a prospective black juror on the basis
that she might know the defendant’s family while not striking prospective white jurors
who had similar connections to the defendant; in Singer, 2019-Ohio-1922, ¶ 34 (6th
Dist.), where the prosecutor struck a black custodian on the basis of a perceived lack
of education while not striking white jurors also employed in menial jobs; and a host
of other cases presenting similar fact patterns. See, e.g., Foster, 578 U.S. at 512-513;
Miller-El, 545 U.S. 231.
{¶34} When a prosecutor’s “proffered reason for striking a black panelist
applies just as well to an otherwise-similar nonblack panelist who is permitted to
serve, that is evidence tending to prove purposeful discrimination.” Foster at 512.
Given that Juror 14 expressed “mixed feelings” about police and Juror 10 did not, the
prosecutor’s basis for striking Juror 10 rather than Juror 14 appeared to be racially
motivated. This is yet another factor that weighs in favor of pretext.
4. Using Multiple Peremptory Challenges
to Strike Nearly All Black Jurors
{¶35} The prosecution used two of its three peremptory challenges to remove
2 A defendant is not required to identify an identical white comparator juror. Flowers, 588 U.S. at 311-312. Merely a similar counterpart will do.
17
OHIO FIRST DISTRICT COURT OF APPEALS
the only two African-American women from the jury. In Flowers, the Supreme Court
found that the fact the prosecution excused five of six black prospective jurors implied
discrimination. Flowers, 588 U.S. at 307 (noting that a pattern of using peremptories
to strike venire members of a particular race can create an inference of racial
discrimination); see also Miller-El, 545 U.S. at 250 (holding that the State’s decision
to retain a single black juror does not negate the inference of discrimination created
by a pattern of race-based peremptory strikes). Applying Flowers, this pattern of
excusing jurors gives rise to an inference of pretext.
5. Group Bias
{¶36} Finally, the prosecutor based the explanation for striking Juror 10 on
assumptions about how people whose loved ones have been convicted of a crime might
react. The prosecutor assumed that such a family member would harbor negative
sentiments about prosecutors and police and applied that perspective to Juror 10. But
there was no evidence that Juror 10 actually felt this way, much less that any critical
number of family members of those with criminal convictions do.
{¶37} The Ohio Supreme Court has held that the potential bias that may result
when the family member of a potential juror has experience “with the criminal justice
system may be a legitimate, racially-neutral reason for exercising a peremptory
challenge against the prospective juror.” (Emphasis added.) State v. Garrett, 2022-Ohio-4218, ¶ 84, citing State v. May, 2015-Ohio-4275, ¶ 51 (8th Dist.). The Court
made this observation in a case that solely challenged Batson’s second step, as defense
counsel mounted no argument or evidence to demonstrate pretext at the third step.
Id. at ¶ 72. Thus, this observation is of little utility in resolving arguments of pretext
at Batson’s final step. After all, as the United States Supreme Court has observed, a
peremptory challenge based on a “family history of criminality” “might [be] selective
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OHIO FIRST DISTRICT COURT OF APPEALS
and based on racial considerations” even though it appears at first blush to be raceneutral. Miller-El, 537 U.S. at 344.
{¶38} That is the circumstance here. It is true that Juror 10’s son was involved
in the criminal legal system, but so was Juror 14’s sister. Juror 14 was permitted by
the State to serve on the jury, and Juror 10 was not. This discrepancy indicates that
the State’s proffered reason “might have been selective and based on racial
considerations.” See id.
{¶39} Adding these five factors together, as the Supreme Court has instructed,
and considering the totality of the circumstances, leads to the conclusion that the
State’s use of a peremptory challenge to excuse Juror 10 was substantially motivated
by discriminatory intent. See Flowers, 588 U.S. at 315-316 (“We need not and do not
decide that any one of those four facts alone would require reversal. All that we need
to decide, and all that we do decide, is that all of the relevant facts and circumstances
taken together establish that the trial court at Flowers’ sixth trial committed clear error
in concluding that the State’s peremptory strike of [a] black prospective juror . . . was
not motivated in substantial part by discriminatory intent.”). We therefore sustain
Trevino’s first assignment of error as to Juror 10, reverse the judgment of conviction,
and remand the cause to the trial court.
Conclusion
{¶40} We afford substantial deference to the trial court in the weight it
afforded the prosecutor’s explanation for striking Juror 10. But we cannot ignore the
facts of this record and the clear authority indicating that the combination of factors
present here points to the racialized use of peremptory strikes in jury selection. We
accordingly sustain Trevino’s first assignment of error and reverse the trial court’s
judgment, which renders Trevino’s remaining assignments of error moot. We remand
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OHIO FIRST DISTRICT COURT OF APPEALS
the cause to the trial court for a new trial.
Judgment reversed and cause remanded.
MOORE, J., concurs.
ZAYAS, J., dissents.
ZAYAS, J., dissenting.
{¶41} “The harm from discriminatory jury selection extends beyond that
inflicted on the defendant and the excluded juror to touch the entire community.”
Batson, 476 U.S. at 87. “[P]urposefully exclud[ing] black persons from juries
undermines public confidence in the fairness of our system of justice.” Id. However,
that did not happen here, and the defendant is not entitled to a new trial. The following
comparison of the jurors demonstrates they were not similarly situated.
Arrested Charged Prosecuted Convicted Sentenced Participated
in Court
Proceedings
Juror Yes Yes Yes Yes Yes Yes
10’s son burglary 3 years
Prison
Juror Yes No No No No No
14’s
sister
{¶42} A juror whose sister was arrested in the past is not factually comparable
to a juror whose son was recently convicted of a felony and sentenced to prison for
three years, especially where the juror admittedly participated in her son’s court
proceedings. I must respectfully dissent. This determination misstates the record,
advances arguments not raised on appeal or in the trial court, and most critically,
disregards the trial court’s credibility determinations to justify its conclusion. Only
the trial court observes the demeanor of the prosecutor and potential juror. See
Snyder, 552 U.S. at 477 (trial court’s firsthand observations are critically important in
determining the credibility and demeanor of the prosecutor and potential juror). Our
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OHIO FIRST DISTRICT COURT OF APPEALS
review is limited to the “cold record,” mere words on paper. Davis v. Ayala, 576 U.S.
257, 274 (2015), citing Rice v. Collins, 546 U.S. 333, 343 (Breyer J., concurring).
The Batson Challenge
1. Challenge to Juror 10
{¶43} A prosecutor may exercise a peremptory challenge “for any reason or no
reason at all,” Hernandez, 500 U.S. at 374 (O’Connor J., concurring), as long as the
challenge is not purposefully used to exclude jurors on the basis of race. See Batson
at 89. “A trial court’s finding of lack of discriminatory intent will not be reversed
unless it is clearly erroneous.” Frazier, 2007-Ohio-5048, at ¶ 64. 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 Batson at 98.
{¶44} Trevino raised a Batson challenge regarding Juror 10, who disclosed on
her questionnaire that her son was “recently convicted of burglary – sentenced to 3
yrs.” Juror 10 was the sole potential juror with a close family member recently
convicted of a crime and incarcerated. The prosecutor responded,
So, for example, [Juror 10] -- and correct me if I’m wrong -- she has the
son who was recently convicted. So my concern for [Juror 10] is that in
the back of her mind, she’s going to be saying, ‘I don’t like prosecutors;
I don’t trust police; I feel bad for the defendant because my son is
defendant,’ you know, that kind of situation.
{¶45} The court correctly found the prosecutor’s explanation to be raceneutral. “[C]ourts have ‘recognized that the potential bias that may result from a
prospective juror’s or his or her family’s experiences with the criminal justice system
may be a legitimate, racially-neutral reason for exercising a peremptory challenge
against the prospective juror.’” Garrett, 2022-Ohio-4218, at ¶ 83, citing State v. May,
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OHIO FIRST DISTRICT COURT OF APPEALS
2015-Ohio-4275 ¶ 51 (8th Dist.); State v. King, 2007-Ohio-4879, ¶ 30 (1st Dist.).
{¶46} Trevino argued the explanation was pretextual because Juror 10 said
she had no “issues with any prosecutors” and no “grudges towards police, towards any
prosecutors.” These statements were not accurate. Juror 10’s responses were limited
to the prosecutor or the police officers in her son’s case, not any prosecutors or police.
Notably, Juror 10 declined to disclose her general feelings about police officers on two
occassions. When asked her feelings about police officers on her questionnaire, Juror
10 did not answer the question. During voir dire, when asked if she had “any feelings
about police officers that [she] can share?” Juror 10 responded, “No.”
{¶47} When the court pointed out that Juror 10 may identify with the
defendant, Trevino argued that Juror 10 “said on the record that [she] wouldn’t.” But
that representation was also inaccurate. Juror 10 did not state on the record that she
would not identify with the defendant. More importantly, the court acknowledged that
the prosecutor’s concern was legitimate.
{¶48} In response to the pretextual allegation, the prosecutor responded,
If you want to hear me continue to argue, I will continue to argue, but
in order to find what [defense counsel] is saying, you have to find that
I’m purposely discriminating, and that is frankly not the case. The fact
that she said I don’t have a problem; I can be neutral, that’s the basis for
me not to for-cause her, but the fact that I think she might have an
implicit bias is enough for me to peremptory.
{¶49} Although Juror 10 claimed that her participation in her son’s criminal
proceedings would not affect her ability to be fair, Juror 10 declined to express her
feelings about police officers on two occasions. Notably, Trevino did not argue that
the prosecutor’s rejection of Juror 10’s claim that her son’s proceedings would impact
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OHIO FIRST DISTRICT COURT OF APPEALS
her was pretextual.
{¶50} Despite Juror 10’s assertions, the prosecutor expressed continued
concerns about Juror 10’s ability to be fair and impartial. At this point, step three of
the Batson analysis, the trial court was required to evaluate the prosecutor’s
credibility. See Akins, 2024-Ohio-1491, at ¶ 13 (1st Dist.). After assessing the
credibility and genuineness of the prosecutor’s concern, the trial court, Judge Ted
Berry,3 concluded the explanation was not a pretext for racial discrimination by
overruling the Batson challenge.
{¶51} Critically, this finding “is entitled to deference, since it turns largely ‘on
evaluation of credibility.’” Garrett, 2022-Ohio-4218, ¶ 70, citing State v. White, 85
Ohio St.3d 433, 437 (1999), quoting Batson, 476 U.S. at 98. “The trial court must
evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent,
but also whether the juror’s demeanor can credibly be said to have exhibited the basis
for the strike attributed to the juror by the prosecutor,” and the court’s “firsthand
observations are entitled to deference.” Garrett at ¶ 87, citing Snyder, 552 U.S. at 477.
{¶52} Although Juror 10 asserted she could be fair, a trial court is not required
to believe or accept a juror’s claims of fairness. See, e.g., State v. Harris, 2006-Ohio3520, ¶ 18 (7th Dist.) (State’s peremptory strike was not racially motivated where
prosecutor did not believe potential juror’s assurance that her children’s convictions
would not affect her ability to decide the case.); King, 2007-Ohio-4879, at ¶ 29-30 (1st
Dist.) (finding peremptory challenge was race-neutral where the potential juror said
3 In 2011, Judge Berry’s father, “a pioneer in civil rights” and Cincinnati’s “first African American
mayor,” was inducted to the Ohio Civil Rights Hall of Fame, where Judge Berry spoke on behalf of his father. See Maj. Dan Dalrymple, Article: An Extraordinary Life Span: A Summary and Analysis of an Oral History of the Honorable William A. McClain: United States Army (1943-1946), 218 Mil.L.Rev. 196 (2013), Reller, T.M. Berry Project: A Fond Farewell, University of Cincinnati Libraries, LiBlog, https://libapps.libraries.uc.edu/liblog/2011/11/page/2/ (accessed Aug. 17, 2026).
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OHIO FIRST DISTRICT COURT OF APPEALS
“she could be fair to both sides.”).
{¶53} The majority opinion claims there was a “disconnect between the
prosecutor’s explanation and the facts of the case” because the prosecutor believed
Juror 10 may harbor bias against the State even though Juror 10 said she could be fair.
Notably, Trevino did not make this argument to the trial court, but he did raise it on
appeal. Thus, Trevino waived the issue except for plain-error review. See State v.
Jones, 2011-Ohio-4440, ¶ 61 (5th Dist.). However, as previously discussed, credibility
determinations lie solely within the trial court’s purview as it was in the best position
to judge the prosecutor’s and the potential juror’s credibility. See State v. Gowdy,
2000-Ohio-355, ¶ 23 (the third prong of the Batson analysis “essentially boils down to
the credibility of the proponent of the peremptory challenge’s race-neutral
explanation”). And that is exactly what the judge did when, after observing the
prosecutor’s and Juror 10’s demeanor, the court found the prosecutor’s concern to be
credible.
{¶54} A prosecutor’s doubts about the veracity of a juror’s response do not
create a “disconnect” in the record. Rather, the question is whether the record
established that the court’s finding that the prosecutor’s explanation was race-neutral
and credible was clearly erroneous. To find error, the majority assumes that Juror 10’s
assertion definitively proved that she could be fair by making its own credibility
determination that her assertion was to be believed, and therefore, dispositive that the
juror would be fair and impartial. However, the law requires the trial court to
determine the prosecutor’s credibility and whether the prosecutor’s belief was
genuine.
{¶55} State v. Greene, 2011-Ohio-4541 (2d Dist.), is instructive. In Greene,
the prosecutor did not believe a prospective juror “was being frank when he responded
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OHIO FIRST DISTRICT COURT OF APPEALS
to their question as to whether he would hold the conviction of his brother against the
State.” Id. at ¶ 13. Although the trial court did not share the prosecutor’s concern, the
trial court overruled the Batson objection because “the trial court did not doubt the
sincerity or genuineness of the prosecutor’s race-neutral explanation.” Id. at ¶ 14. In
concluding the court did not err, the Second District explained, “The issue for the court
in a Batson challenge is not so much the reasonableness of the prosecutor’s concern
about a juror’s view of the case . . . but the genuineness of the prosecutor’s
explanation.” Id.
{¶56} Similarly, here, the prosecutor shared her concerns about Juror 10’s
ability to be fair and impartial due to her son’s recent conviction. And the trial court
found the prosecutor’s explanation to be race-neutral in the third step of the Batson
analysis. Because the court’s finding in this step “largely turn[s] on evaluation of
credibility” the finding is entitled to “great deference.” Gowdy, 2000-Ohio-355, at ¶
24.
2. Challenge to Juror 10
{¶57} After the trial court found the prosecutor’s explanation to be raceneutral, defense counsel changed tactics and the following discussion occurred,
DEFENSE COUNSEL: Judge, there are other members of the jury that
have family members that have been charged or convicted with crimes
that have not been peremptoried.4 It is the one black woman who has
been peremptoried for allegedly that reason.
[Juror 14], for example – her daughter -- I believe it was [Juror 14] --4 Notably, no other juror disclosed a criminal charge or a family member charged with a crime. One
juror disclosed that he or a family member had been charged with a minor misdemeanor possession, which is not “a criminal record” and need not be reported in response to any inquiry. See R.C. 2925.11(D).
25
OHIO FIRST DISTRICT COURT OF APPEALS
her daughter was charged with a crime, but she is a white woman, and
she was not selected for that same reason. And, Judge, the only
difference between the two women is their race.
{¶58} However, defense counsel’s factual representation was incorrect. The
jury questionnaire asked whether the juror or a family member had ever been “charged
with a crime.” No other potential juror had a family member who was charged with a
crime. Juror 14 volunteered that her sister had been arrested, but not charged,
prosecuted, or convicted. And the prosecutor responded and corrected the record.
PROSECUTOR: And Judge, if I may, I understand what [defense
counsel] is saying, but I think the two are distinguishable. So if you look
at this one, there’s no indication of time frame here. It says arrested,
but I think when you look at [Juror 10], it says recently convicted of
burglary and sentenced to three years. So, I mean, he’s gone to the
Department of Correction at this point, and we have a very recent
sentencing that’s happened in a case in proximity to this trial. I think
that’s different from [Juror 14] where we have no indication of the time
frame, anything like that. We simply have an arrest. We don’t have a
trial; we don’t have a conviction, anything like that.
{¶59} After hearing the explanations, the trial court denied the Batson
challenge. The majority asserts that the trial court “improperly truncated its analysis”
and “accepted the State’s proffered race-neutral explanation without considering the
impact of the State’s decision not to strike the white prospective juror.” However, a
trial court “may express its opinion of the State’s race-neutral justification in the form
of a clear rejection of the Batson challenge, without offering detailed findings, ‘as long
as the trial judge affords the parties a reasonable opportunity to make their respective
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OHIO FIRST DISTRICT COURT OF APPEALS
records.’” Adams, 2015-Ohio-3954, at ¶ 161.
{¶60} That is precisely what happened here. The court allowed both parties to
argue their positions and determined, based on all the circumstances, that the defense
did not prove purposeful discrimination as required by the third prong of Batson. See
Williams, 2021-Ohio-3491, at ¶ 38 (10th Dist.), citing Adams at ¶ 38. “The trial court
was in the best position to evaluate the statements of the prosecutor and also those
made by the juror during voir dire. The trial court’s decision was based on the
prosecutor’s credibility, the juror’s answers, and the totality of the circumstances.”
State v. Prieto, 2016-Ohio-8480, ¶ 55 (7th Dist.). Ultimately, the court found the
prosecutor’s concern to be genuine, and the record fails to establish that the court
clearly erred in concluding the prosecutor’s decision was not racially motivated. See
id.
{¶61} Moreover, because the family members of Juror 10 and Juror 14 had
significantly different levels of involvement with the legal system, the trial court did
not err in concluding the prosecutor’s explanation was genuine and credible. Juror
10’s son was recently convicted of burglary and sentenced to a three-year prison term.
Not just a mere arrest. Rather, her son was recently arrested, charged, convicted, and
sentenced to prison. Additionally, Juror 10 was “present for [her son’s] court
hearings” and involved in the criminal process.
{¶62} On the other hand, Juror 14 had a sister who was arrested at an
undetermined time in the past. The juror wrote on her questionnaire, that her
“younger sister was arrested for being there when a check cashing place was robbed
by her then boyfriend. She was on drugs and in an abusive relationship.” Juror 14’s
sister was not charged, tried, convicted or sentenced to prison. Her sister was arrested
sometime in the past, and, unlike Juror 10, she had no involvement with her sister’s
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OHIO FIRST DISTRICT COURT OF APPEALS
circumstances. There is no evidence that Juror 14’s sister was “involved in the criminal
justice system” as stated in the opinion because she was never charged with a criminal
offense.
{¶63} The opinion relies heavily on cases where the record established that the
prosecutor’s reasons for striking jurors were “factually contradicted by the record.”
For example, in Miller-El, the prosecutor stated that he struck a black juror due to his
family member’s conviction. Miller-El, 537 U.S. at 343. The Court found this stated
reason may be “selective and based on racial considerations” because four white jurors
had family members with criminal histories. Id. In Snyder, the prosecutor’s stated
reason for striking the juror, he could not miss class, was contradicted by the record
because the student’s dean had assured the court that missing class was not an issue.
Snyder, 552 U.S. at 478-481.
{¶64} Those cases are inapplicable here because the prosecutor’s reasons for
striking Juror 10 were not “factually contradicted by the record.” As previously
discussed, a trial court is not required to believe a juror’s claim of fairness and
impartiality when evaluating a race-neutral explanation, and Jurors 10 and 14 were
not similarly situated. The majority erroneously recasts the court’s credibility
determinations as factual disputes to justify its holding that the court clearly erred.
But, a “reviewing court must defer to the trial court’s credibility decision.” Prieto,
2016-Ohio- 8480, at ¶ 47 (7th Dist.), citing State v. Bryan, 2004-Ohio-971, ¶ 110.
3. Juror 7
{¶65} With respect to Juror 7, I first note that Trevino did not raise a Batson
challenge regarding Juror 7. The opinion claims that Juror 7 was rehabilitated because
“the prosecutor elicited comments that the juror did in fact trust police and was only
skeptical in situations where officers planted evidence, which she described as an
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OHIO FIRST DISTRICT COURT OF APPEALS
‘egregious, rare circumstance.’”
{¶66} Juror 7 did not state that she trusted police officers. The defense
attorney, not Juror 7, argued that Juror 7’s remarks about fabricated evidence “wasn’t
her saying that she had this belief that police always fabricate evidence or there’s some
kind of evidence with police. Judge, she was saying, ‘I have no issue with police unless
there were to be this egregious, rare circumstance,’ Judge.”
{¶67} Juror 7 wrote on her questionnaire, “I lack confidence in police officers
at this time.” When asked her thoughts on undercover police, she responded, “I don’t
have any negative thoughts. They serve a purpose to investigate. . . . unless they falsify
evidence.” She also stated that sometimes police officers “can be biased toward people
of color.” In explaining the peremptory challenge to Juror 7, the prosecutor stated,
Juror 7 “kind of routinely said that she did not trust police, and that concerned me as
the fact that this is two undercover police officers. She also discussed officers who
falsify evidence. That is a concern to me.” The State’s explanation for excusing Juror
7 was race-neutral and supported by the record. Because Trevino did not raise a
Batson challenge with respect to Juror 7, and the record supports the peremptory
strike, I cannot hold that the trial court erred.
4. Arguments Raised Sua Sponte
{¶68} The majority advances arguments not raised by Trevino in his brief or
in the trial court. Generally, “‘an appellate court will not consider any error which
counsel for a party complaining of the trial court’s judgment could have called but did
not call to the trial court’s attention at a time when such error could have been avoided
or corrected by the trial court.’” State v. Quarterman, 2014-Ohio-4034, ¶ 15, citing
State v. Awan, 22 Ohio St.3d 120, 122 (1986), quoting State v. Childs, 14 Ohio St.2d
56 (1968). “The burden is on the appellant, not the appellate court, to construct the
29
OHIO FIRST DISTRICT COURT OF APPEALS
legal arguments necessary to support an appellant’s assignment of error. Appellate
courts are not advocates.” Doe v. Cuyahoga Cty. Community College, 2022-Ohio-527,
¶ 26 (8th Dist.).
{¶69} The majority holds that the prosecutor did not meaningfully question
Juror 10 to “ferret out” any potential bias. Trevino did not raise this issue in the trial
court or on appeal. Thus, the majority raises and adjudicates an issue not argued or
briefed by the parties.
{¶70} And the record reveals that the State asked Juror 10 several questions
that did not allay its concerns, and twice, Juror 10 declined to disclose her feelings
about police officers. Again, after assessing the credibility of the prosecutor and Juror
10, the court found the State’s explanation to be credible.
{¶71} Additionally, the majority claims that Juror 14 “expressed hostility
towards law enforcement.” Trevino never argued in the trial court or on appeal that
Juror 14 “expressed hostility” toward police officers. Again, the majority raises and
determines an issue not addressed or briefed by the parties. Notably, that issue is not
supported by the record. Juror 14 acknowledged that she wrote on her questionnaire
“that [she had] some mixed feelings about police officers.” The prosecutor responded,
PROSECUTOR: I totally understand that. Are you able to kind of put
that aside listen to Officer Espitia and Officer Cronin as they testify and
kind of weigh that without any personal look back into, right, bad
officers good off[ic]ers?
PROSPECTIVE JUROR 14: Yes.
{¶72} The majority concludes that “the prosecutor never asked her to describe
what the ‘mixed feelings’ were, a question that would have been relevant if the
prosecutor were actually seeking to unearth potential jury bias.” However, the record
30
OHIO FIRST DISTRICT COURT OF APPEALS
reflects that Juror 14 wrote about her “mixed feelings” on the questionnaire.
Specifically, regarding police officers, she wrote, “I have mixed feelings. Some abuse
their power and some are truly here to serve.” Based on the prosecutor’s question, the
prosecutor read and understood the juror’s reasoning, dispensing with any need to ask
for an explanation.
{¶73} Finally, the majority further relies on a theory of “group bias,” which
was not raised in the appellate brief or discussed in the trial court. Trevino did not
challenge the peremptory strike on the basis of “group bias” in the trial court or argue
the issue in his brief.
{¶74} Here, the prosecutor expressed a concern with Juror 10’s ability to be
fair, despite her claim that she could be fair, and the fact that she recently participated
in her son’s court proceedings which ultimately led to his conviction and incarceration.
As previously discussed, the prosecutor provided a valid racially-neutral reason for
exercising a peremptory strike. The record reflects that the trial court assessed the
prosecutor’s explanations, evaluated the credibility, and found the explanations to be
credible. Applying a “highly deferential standard of review,” as we are required to
employ, I cannot say that trial court’s decision to allow the State to exercise its
peremptory challenge was clearly erroneous. See Snyder, 552 U.S. at 477-479.
{¶75} Accordingly, I would overrule the first assignment of error.
Discovery Violation
{¶76} In his second assignment of error, Trevino contends that the “court
abused its discretion in allowing [the female undercover officer] to testify after the
State’s willful and prejudicial late disclosure of her as a witness.” Trevino claims that
the failure to disclose the officer’s name deprived him of an opportunity to prepare his
defense.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶77} The State’s discovery response provided two videos, a body-worncamera video, and video, with no audio, depicting the undercover female officer
engaged in conversation with Trevino. In addition to the video, the State provided the
audio recording of the conversation between the undercover officer and Trevino, and
the text messages the two exchanged. The State’s witness list encompassed a
statement that, “All witnesses included in the materials provided in this or in any prior
or subsequent discovery response.” The undercover officer is prevalent in the
materials, although the State omitted the undercover officer’s name from its response.
{¶78} Six months after receiving discovery, Trevino filed a motion to dismiss
arguing that the case should be dismissed due to police entrapment. The motion
acknowledged that after conversing with a female undercover Cincinnati police officer,
Trevino exchanged numbers with her, and that over two weeks, Trevino
communicated with the female officer via text messages. On June 2, the day the trial
began, Trevino filed a motion in limine seeking to exclude certain highlighted text
messages between Trevino and the undercover officer. That afternoon, prior to voir
dire, the parties had a hearing and resolved the text-message issue. Then Trevino
sought to exclude the testimony of the undercover officer, alleging that the defense
“just learned” the name of the officer.
{¶79} The prosecutor responded that the parties had discussed this issue in
chambers, and defense counsel was offered a continuance to speak with the
undercover officer. Defense counsel did not want a continuance, so the State made
the undercover officer available to speak with counsel, and the two engaged in
conversation. Defense counsel asked the court “to note our continuing objection to
[the undercover officer’s] testimony.” The court noted the objection, the need to
impose the least drastic measure for the failure to disclose the officer’s name, and that
32
OHIO FIRST DISTRICT COURT OF APPEALS
defense counsel had the opportunity to interview the undercover officer.
{¶80} Then, the following morning, after jeopardy attached, Trevino asked the
court to reconsider its ruling on the motion to exclude the officer from testifying. This
time, counsel represented that the defense strategy was predicated on the State calling
only one officer, the male officer who filed the charge, and the undercover officer was
a “new witness.” Defense counsel requested that the State proffer the undercover
officer’s testimony and claimed that the defense had no body-camera footage that
included the undercover officer.
{¶81} The prosecutor reminded the defense that body-worn-camera and
undercover surveillance, depicting the undercover officer, had been provided over a
year prior. The audio recording between the undercover officer and Trevino had also
been provided the previous year. The court again declined the request to exclude the
undercover officer as a witness, explaining that the least severe sanction would not be
witness exclusion. The court offered counsel another opportunity to speak with the
undercover officer and a continuance if necessary.
{¶82} Now Trevino argues that the trial court abused its discretion in allowing
the officer to testify and by failing to engage in the appropriate analysis when a
discovery violation has occurred. “The decision of whether to exclude a witness’s
testimony based on a failure to disclose the witness’s name lies within the trial court’s
sole discretion.” State v. Valdez, 2017-Ohio-241, ¶ 114 (3d Dist.). Thus, we review a
trial court’s decision regarding a Crim.R. 16 discovery sanction for an abuse of
discretion. State v. Holcombe, 2012-Ohio-5948, ¶ 12 (3d Dist.). An abuse of discretion
suggests that a decision is unreasonable, arbitrary, or unconscionable. State v.
Adams, 62 Ohio St.2d 151, 157 (1980).
{¶83} Crim.R. 16 governs discovery matters in a criminal proceeding. The
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OHIO FIRST DISTRICT COURT OF APPEALS
purpose of Crim.R. 16 is, among other things, “to provide all parties in a criminal case
with the information necessary for a full and fair adjudication of the facts.” Crim.R.
16(A). In furtherance of this purpose, Crim.R. 16(I) mandates that “[e]ach party shall
provide to opposing counsel a written witness list, including names and addresses of
any witness it intends to call in its case-in-chief, or reasonably anticipates calling in
rebuttal or surrebuttal.”
{¶84} In situations where the prosecution fails to disclose a witness prior to
trial, “a trial court does not abuse its discretion when admitting the testimony of an
undisclosed witness if (1) ‘the failure to provide discovery was not willful,’ (2)
‘foreknowledge of the statement would not have benefitted the defendant in the
preparation of the defense,’ and (3) ‘the defendant was not prejudiced by the
admission of the evidence.’” State v. Terry, 130 Ohio App.3d 253, 260 (3d Dist. 1998),
quoting State v. Heinish, 50 Ohio St.3d 231, 236 (1990); see State v. Rankin, 2014-Ohio-3104, ¶ 17-19 (5th Dist.) (concluding that the trial court did not abuse its
discretion by admitting the testimony of an undisclosed witness when the discovery
violation was not willful, did not affect the defendant’s ability to prepare a defense,
and the defendant was not prejudiced).
{¶85} Trevino contends that the court failed to determine whether the failure
to disclose was willful. However, the late discovery issue was initially addressed in
chambers, and Trevino did not supplement the record with a summary of that
discussion pursuant to App.R. 9(C). Accordingly, we must presume the regularity of
the proceedings and conclude the court engaged in the appropriate analysis, and any
error is waived. See, e.g., State v. Keenan, 81 Ohio St.3d 133, 139 (1998) (Keenan did
not attempt to use App.R. 9 to reconstruct the unrecorded sidebars, and the error may
be considered waived). Nonetheless, as discussed below, the record reflects that the
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OHIO FIRST DISTRICT COURT OF APPEALS
violation was not willful.
{¶86} State v. Rankin, 2014-Ohio-3104 (5th Dist.), is instructive. In Rankin,
appellant argued the trial court erred in allowing witness Jane to testify because her
name was not included on the witness list. Id. at ¶ 13. The Fifth District held there
was no willful discovery violation because “[d]efense counsel was put on notice that
Jane was a potential witness when her name was listed in the police report and, in
response to appellant’s discovery request, appellee stated that ‘any names contained
on the attached police or accident reports, whether listed as witnesses, passengers, or
investigators, should be considered as potential witnesses at trial of this matter.’” Id.
at ¶ 17. The court further noted that “the prosecution, as part of the discovery process,
turned the statement of Jane over to the defense prior to her testimony at trial.” Id.
{¶87} Trevino has not shown that the State’s failure to include the name of the
disclosed undercover officer was a willful discovery violation. See id. at 17; State v.
Buckner, 2024-Ohio-2615, ¶ 12 (3d Dist.) (concluding that the record did not establish
a willful violation where the State’s pretrial statement listed the 9-1-1 call as an exhibit,
placing Buckner on notice that the recording would be in issue at trial).
{¶88} Trevino was apprised of the undercover officer and her role in the case.
Similar to Rankin, the State provided audio and video recordings that included the
undercover officer. The State’s discovery response included on its witness list a notice
that, “All witnesses included in the materials provided in this or any prior or
subsequent discovery response.” Moreover, the complaint mentioned the undercover
officer, and Trevino’s motion to dismiss and motion in limine acknowledged the
involvement of the female, undercover officer. Thus, Trevino failed to establish a
willful failure to disclose the officer’s name where the State provided audio and videos
featuring the undercover officer. See Buckner at ¶ 12; Rankin at ¶ 17.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶89} Because the record demonstrates that Trevino was aware of the
undercover officer’s existence and role in the case at least one year prior to trial, he
cannot establish that the omission of her name affected his ability to prepare a defense
or otherwise prejudiced him. Accordingly, the trial court did not abuse its discretion
in allowing the witness to testify. I would overrule the second assignment of error.
Prosecutorial Misconduct
{¶90} Next, Trevino contends the State committed misconduct by vouching
for the credibility of two of its witnesses in closing remarks by stating,
So based on both the evidence that’s presented, the evidence that
you’re going to review, as well as the credibility of Officer Espitia and
Officer Cronin – they were on the stand; they testified credibly. They’ve
both been doing this for a while; they’ve worked in vice squad for a
while; and they testified very credibly; answered the prosecutor’s
questions honestly; answered defense counsel’s questions honestly.
{¶91} After Trevino objected, the prosecutor further stated,
You all decide credibility, not me. But I’m saying when it came
to answering questions, there wasn’t a backtracking or a [sic] “oops I’m
caught in a lie moment.” That’s what I’m saying. But [defense counsel’s]
right. You determine the credibility, but I’m saying there’s no arguing.
There is no outbursts, things like that. There was a clean
communication between both prosecution and defense counsel. So
ultimately, you all determine the credibility.
{¶92} The test for prosecutorial misconduct is “whether the remarks were
improper, and if so, whether they prejudicially affected the accused’s substantial
rights.” State v. Smith, 14 Ohio St.3d 13, 14 (1984). “Misconduct does not affect the
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OHIO FIRST DISTRICT COURT OF APPEALS
defendant’s substantial rights unless it denied the defendant a fair trial.” State v.
Morrissette, 2018-Ohio-3917, ¶ 30 (1st Dist.).
{¶93} Assuming without deciding that the remarks constituted misconduct,
Trevino cannot establish his substantial rights were prejudiced or that he was denied
a fair trial. After Trevino objected, the prosecutor emphasized that the jury
determined witness credibility. Additionally, the trial court provided a curative
instruction and instructed the jurors that, “Now, you as jurors are the exclusive judge
of the credibility or believability of the witnesses and the weight to be given to that
evidence.” The court further stated, “Neither party may vouch for the credibility of
any witness.” We must presume the jurors followed the instructions given by the trial
court. State v. Savage, 2019-Ohio-4859, ¶ 26. In light of the evidence before the jury,
I cannot conclude that a reasonable probability exists that, absent the remarks by the
prosecutor, the jury would have found Trevino not guilty. Consequently, I would
overrule the third assignment of error.
Manifest Weight
{¶94} In his fourth assignment of error, Trevino argues that his conviction is
against the weight of the evidence because he demonstrated, by a preponderance of
the evidence, that the government induced him to commit the offense.
{¶95} Under a manifest-weight review, an appellate court “weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.” (Citations omitted.) State v. Reillo, Slip Opinion No. 2026-Ohio-2701, ¶ 26. Although an appellate court may disagree with the factfinder’s
resolution of conflicting evidence, a reviewing court “must defer to the fact-finder’s
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OHIO FIRST DISTRICT COURT OF APPEALS
witness-credibility determinations.” Id. at ¶ 27, 38.
{¶96} Under R.C. 2907.24(A), “no person shall knowingly solicit another to
engage in sexual activity for hire in exchange for the person receiving anything of value
from the other person.” When a person raises the defense of entrapment, he admits
to the offense but “seeks to avoid criminal liability by maintaining that the government
induced him to commit an offense that he was not predisposed to commit.” State v.
Doran, 5 Ohio St.3d 187, 193 (1983).
{¶97} Here, Trevino argues that the undercover officer induced him to solicit
her, and he was not predisposed to commit the crime. Trevino does not point to any
conflicts in the evidence that the jury incorrectly resolved. Rather, he argues that the
undercover officer texted him first and that typically in a solicitation case, the accused
is in a vehicle, and he was on foot, he did not ask if she was a prostitute, his motivation
was a date, and although he offered pills for sex, he possessed no pills when he was
arrested.
{¶98} As the Ohio Supreme Court recently explained, “[A]n appellate court
sits as the thirteenth juror only when evidence contradicts a fact-finder’s findings.”
Reillo at ¶ 3. Without conflicting evidence, an appellate court has nothing to weigh,
and a conviction will not be reversed as against the manifest weight. See id.
Additionally, we “must defer to the fact-finder’s witness-credibility determinations.”
Id. at ¶ 27, 38. Because Trevino points to no conflicting evidence and appears to
challenge the credibility of the State’s witnesses, I cannot say that the jury lost its way
and created a manifest miscarriage of justice.
{¶99} Moreover, Cronin testified that she was working in an area known to
have many “prostitutes that walk around from day to day.” Although Cronin initially
greeted Trevino, she testified that he approached her. Within two minutes of
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OHIO FIRST DISTRICT COURT OF APPEALS
conversing with the officer, Trevino suggested going to McDonalds “real quick,” and
the following conversation occurred,
OFFICER: I’m good.
TREVINO: Why?
OFFICER: Because I’m out here trying to make some money, do my
thing.
TREVINO: I know, I’m saying, but where we gonna go?
OFFICER: I’m trying to make some money.
TREVINO: I know. I’m trying to give you some money
OFFICER: [after saying hello to a man passing by] If you ain’t gonna
give me, I’m good. [In the video, the officer starts walking away from
Trevino at this point.]
TREVINO: [walking after Cronin] How much you trying to get?
OFFICER: Depends on what you want.
{¶100} The exchange reflects that Trevino was willing to give her money. Based
on that exchange, a jury could easily conclude Trevino was predisposed to commit the
offense. Accordingly, I would overrule the fourth assignment of error.
Conclusion
{¶101} I would overrule all of Trevino’s assignments of error and affirm the
judgment of the trial court.
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