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STATE v. JACKSON

Cite as 30 Neb. App. 633

State of Nebraska, appellee, v. Kwamayne 

D. Jackson, appellant.

___ N.W.2d ___

Filed February 15, 2022. No. A-20-934.

1. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error.

An appellate court reviews de novo the facial validity of an attorney’s 

race-neutral explanation for using a peremptory challenge as a question 

of law. It reviews for clear error a trial court’s factual determination 

regarding whether a prosecutor’s race-neutral explanation is persuasive 

and whether the prosecutor’s use of a peremptory challenge was purposefully discriminatory.

2. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

3. Judgments: Words and Phrases. Abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

4. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

5. Juries: Discrimination: Prosecuting Attorneys: Equal Protection. A 

prosecutor is ordinarily entitled to exercise permitted peremptory challenges for any reason at all, if that reason is related to his or her view 

concerning the outcome of the case. However, the U.S. Supreme Court 

in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 

(1986), held that the Equal Protection Clause forbids the prosecutor 

from challenging jurors solely because of their race.

6. Juries: Discrimination: Prosecuting Attorneys: Proof. Determining 

whether a prosecutor impermissibly struck a prospective juror based 

on race is a three-step process. In this three-step process, the ultimate 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

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burden of persuasion regarding racial motivation rests with, and never 

shifts from, the opponent of the strike.

7. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error.

Once the trial court has decided the ultimate question of intentional 

discrimination in a prosecutor’s strike of a prospective juror, the questions on appeal are only whether the prosecutor’s reasons were facially 

race neutral and whether the trial court’s final determination regarding 

purposeful discrimination was clearly erroneous.

8. Juries: Discrimination: Prosecuting Attorneys. Whether a prosecutor’s reasons for using peremptory challenges are race neutral is a question of law. A trial court’s determination that the prosecutor’s raceneutral explanation should be believed, on the other hand, frequently 

involves evaluation of a prosecutor’s credibility, which requires deference to the court’s findings absent exceptional circumstances.

9. ____: ____: ____. In determining whether a prosecutor’s explanation for 

using a peremptory challenge is race neutral, a court is not required to 

reject an explanation because it is not persuasive, or even plausible; it is 

sufficient if the reason is not inherently discriminatory. Only inherently 

discriminatory explanations are facially invalid.

10. Juries: Discrimination: Prosecuting Attorneys: Evidence. Evidence 

that a prosecutor’s reasons for striking a Black prospective juror apply 

equally to an otherwise similar non-Black prospective juror, who is 

allowed to serve, tends to suggest purposeful discrimination.

Appeal from the District Court for Douglas County: Timothy 

P. Burns, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, Mary 

Rose Donahue, and Mary M. Dvorak for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

Riedmann, Bishop, and Arterburn, Judges.

Bishop, Judge.

I. INTRODUCTION

Following a jury trial, Kwamayne D. Jackson was convicted 

of child abuse resulting in serious bodily injury. The Douglas 

County District Court sentenced him to 14 to 18 years’ imprisonment, with credit for 538 days already served. On appeal, 
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STATE v. JACKSON

Cite as 30 Neb. App. 633

Jackson claims error regarding jury selection and sentencing. 

We affirm.

II. BACKGROUND

In May 2019, Jackson was caring for a 3-month-old infant 

and her two siblings. The infant became unresponsive and 

was subsequently taken via ambulance to a hospital. She had 

no observed external injuries, but imaging showed she had 

a left-sided subdural hematoma, and she required surgery to 

relieve the pressure on her brain. It was also discovered that 

the infant’s left eye had hemorrhages too numerous to count. 

A child abuse pediatrician diagnosed the infant with abusive 

head trauma and said her injuries were most likely the result 

of severe impact with or without shaking; it would have been 

“almost immediate from the time that she was injured to the 

time that she appeared unwell.”

The State filed an information on July 26, 2019, and an 

amended information on September 17, 2020, charging Jackson 

with one count of child abuse resulting in serious bodily injury, 

a Class II felony, pursuant to Neb. Rev. Stat. § 28-707(1) and 

(7) (Reissue 2016).

A jury trial was held in September 2020. Voir dire was conducted with 34 potential jurors—4 were struck for cause. After 

the parties exercised their peremptory strikes, Jackson raised 

a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 

1712, 90 L. Ed. 2d 69 (1986), because the State struck two 

of the three “African-American[s]” in the panel of prospective jurors. After hearing argument, the district court denied 

Jackson’s Batson challenge. Trial proceeded on the merits of 

the case.

On September 23, 2020, the jury found Jackson guilty of 

knowing and intentional child abuse resulting in serious bodily 

injury, and the district court entered judgment on the conviction of the Class II felony. Following a hearing on December 

1, the court sentenced Jackson to 14 to 18 years’ imprisonment, 

with credit for 538 days already served.

Jackson appeals.
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III. ASSIGNMENTS OF ERROR

Jackson assigns that the district court erred when it (1) 

denied his Batson challenge and (2) failed to adequately consider mitigating factors at sentencing.

IV. STANDARD OF REVIEW

[1] An appellate court reviews de novo the facial validity of 

an attorney’s race-neutral explanation for using a peremptory 

challenge as a question of law. It reviews for clear error a trial 

court’s factual determination regarding whether a prosecutor’s race-neutral explanation is persuasive and whether the 

prosecutor’s use of a peremptory challenge was purposefully 

discriminatory. State v. Briggs, 303 Neb. 352, 929 N.W.2d 

65 (2019).

[2,3] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 

(2020). Abuse of discretion occurs when a trial court’s decision 

is based upon reasons that are untenable or unreasonable or if 

its action is clearly against justice or conscience, reason, and 

evidence. Id.

V. ANALYSIS

[4] We initially note that Jackson argued, but did not assign 

as error, that the evidence was insufficient to support his conviction. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the 

error to be considered by an appellate court. State v. Sundquist, 

301 Neb. 1006, 921 N.W.2d 131 (2019). Accordingly, we proceed to address only those errors both assigned and argued 

by Jackson.

1. Batson Challenge

Jackson argues that the district court committed reversible 

error by overruling his Batson challenge to the jury selection. He contends the State used peremptory challenges on 
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certain jurors solely because of their race, contrary to Batson 

v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 

(1986).

(a) Applicable Law

(i) General Propositions

[5] A prosecutor is ordinarily entitled to exercise permitted peremptory challenges for any reason at all, if that reason 

is related to his or her view concerning the outcome of the 

case. State v. Wofford, 298 Neb. 412, 904 N.W.2d 649 (2017). 

However, the U.S. Supreme Court in Batson v. Kentucky, 

supra, held that the Equal Protection Clause forbids the prosecutor from challenging jurors solely because of their race. 

State v. Wofford, supra.

[6] Determining whether a prosecutor impermissibly struck 

a prospective juror based on race is a three-step process. State 

v. Briggs, supra. See, also, Batson v. Kentucky, supra. In this 

three-step process, the ultimate burden of persuasion regarding 

racial motivation rests with, and never shifts from, the opponent of the strike. State v. Briggs, supra. First, a defendant 

must make a prima facie showing that the prosecutor exercised 

a peremptory challenge because of race. Second, assuming 

the defendant made such a showing, the prosecutor must offer 

a race-neutral basis for striking the juror. And third, the trial 

court must determine whether the defendant has carried his or 

her burden of proving purposeful discrimination. Id.

[7,8] Once the trial court has decided the ultimate question of intentional discrimination, however, the questions on 

appeal are only whether the prosecutor’s reasons were facially 

race neutral and whether the trial court’s final determination 

regarding purposeful discrimination was clearly erroneous. Id.

Whether a prosecutor’s reasons for using peremptory challenges 

are race neutral is a question of law. Id. A trial court’s determination that the prosecutor’s race-neutral explanation should 

be believed, on the other hand, frequently involves evaluation 
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of a prosecutor’s credibility, which requires deference to the 

court’s findings absent exceptional circumstances. Id.

[9] In determining whether a prosecutor’s explanation for 

using a peremptory challenge is race neutral, a court is not 

required to reject an explanation because it is not persuasive, 

or even plausible; it is sufficient if the reason is not inherently 

discriminatory. Id. Only inherently discriminatory explanations 

are facially invalid. State v. Wofford, supra.

[10] Evidence that a prosecutor’s reasons for striking a 

Black prospective juror apply equally to an otherwise similar 

non-Black prospective juror, who is allowed to serve, tends to 

suggest purposeful discrimination. Foster v. Chatman, 578 U.S. 

488, 136 S. Ct. 1737, 195 L. Ed. 2d 1 (2016).

(ii) Summary of Foster v. Chatman

In his brief on appeal, Jackson refers us to the successful 

Batson challenge in Foster v. Chatman, supra. However, there 

is a significant difference in the substance of the record produced in Foster v. Chatman and the record before this court. 

The record ultimately produced in Foster v. Chatman revealed 

that the prosecution’s file, obtained by a series of requests 

under Georgia’s public records act, “plainly belie[d] the State’s 

claim that it exercised its strikes in a ‘color-blind’ manner.” 

Foster v. Chatman, 578 U.S. at 513. “[T]he focus on race in 

the prosecution’s file plainly demonstrates a concerted effort 

to keep black prospective jurors off the jury.” Id., 578 U.S. 

at 514.

Notably in Foster, during jury selection at the defendant’s 

trial, the State exercised peremptory strikes to remove all four 

Black prospective jurors qualified to serve. The defendant 

lodged a Batson challenge. The trial court rejected the objection and impaneled the jury. The jury convicted the defendant 

in Foster and sentenced him to death. When ultimately granted 

certiorari by the U.S. Supreme Court in a subsequent habeas 

corpus action, the record contained: copies of jury venire lists 

with the names of Black prospective jurors highlighted in 
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bright green; an affidavit prepared by an investigator assisting 

the prosecution in jury selection, which affidavit detailed the 

investigator’s views on 10 Black prospective jurors and noted 

which juror should be selected if the prosecution “‘had to 

pick a black juror’”; a handwritten document titled “‘definite 

NO’s,’” listing six names, the first five of which were qualified Black prospective jurors; a handwritten document titled 

“‘Church of Christ,’” and a notation on the document which 

read: “NO. No Black Church’”; and questionnaires completed 

by several of the Black prospective jurors, on which questionnaires each juror noted his or her race. Foster v. Chatman, 578 

U.S. at 494, 495.

Since both parties agreed the defendant in Foster demonstrated a prima facie showing that the prosecutor exercised 

a peremptory challenge because of race and that the prosecutor offered race-neutral reasons for the strikes, the Court 

addressed only the third step of the process outlined in Batson 

v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 

(1986), which step was whether the defendant had shown purposeful discrimination. The Court stated, “That step turns on 

factual determinations, and, ‘in the absence of exceptional circumstances,’ we defer to state court factual findings unless we 

conclude that they are clearly erroneous.” Foster v. Chatman, 

578 U.S. at 500.

The Court noted that a struck juror’s name appeared on the 

“‘definite NO’s’” list in the prosecution’s file and that this 

belied the district attorney’s assertion that the State considered allowing that juror to serve. Also, several of the district 

attorney’s reasons for why he struck a Black prospective juror 

over a non-Black prospective juror were similarly contradicted 

by the record; for example, the district attorney told the court 

that he struck a certain Black prospective juror because the 

defense did not ask her questions about pertinent trial issues, 

but the trial transcripts revealed that the defense asked several 

questions on the topics. “[O]ther explanations given by the 

prosecution, while not explicitly contradicted by the record, are 
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difficult to credit because the State willingly accepted white 

jurors with the same traits that supposedly rendered [a Black 

prospective juror] an unattractive juror.” Foster v. Chatman, 

578 U.S. 488, 505, 136 S. Ct. 1737, 195 L. Ed. 2d 1 (2016). 

The Court also noted that the prosecution’s principal reasons 

for striking Black prospective jurors shifted over time, suggesting that those reasons may be pretextual. The Court stated:

“[I]f 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.” [Miller-El 

v. Dretke,] 545 U.S. 231, 241[, 125 S. Ct. 2317, 162 L. 

Ed. 2d 196] (2005). With respect to [two particular prospective jurors], such evidence is compelling. But that 

is not all. There are also the shifting explanations, the 

misrepresentations of the record, and the persistent focus 

on race in the prosecution’s file. Considering all of the 

circumstantial evidence that “bear[s] upon the issue of 

racial animosity,” we are left with the firm conviction that 

the strikes of [the two particular prospective jurors] were 

“motivated in substantial part by discriminatory intent.”

Foster v. Chatman, 578 U.S. at 512-13.

In Foster v. Chatman, supra, the U.S. Supreme Court was 

able to review the Batson challenge before it with the benefit of a record containing the prosecution’s file, which was 

obtained through a series of public records requests. We do not 

have that benefit here in Jackson’s case; instead, we must rely 

solely on the record made in the course of voir dire and the 

reasons for striking Black prospective jurors proffered by the 

State during the Batson hearing.

(b) Voir Dire and Jackson’s Batson Challenge

In the case before us, voir dire was conducted starting with 

a panel of 30 potential jurors. At various points, three potential 

jurors were struck for cause, and each time one was struck, 

they were replaced with another potential juror. Accordingly, 
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there were still 30 potential jurors after the panel was passed 

for cause. The State and the defense were each given eight 

peremptory challenges, leaving 14 persons—12 jurors and 2 

alternate jurors. The peremptory challenges were exercised off 

the record, and our record does not indicate which side used 

its peremptory challenges on which potential jurors, except for 

what can be gleaned from the discussion and arguments during 

the Batson challenge.

Jackson raised a Batson challenge on the record, but outside 

the presence of the jury. Jackson argued that the State used 

its peremptory challenges to strike two of the three “AfricanAmerican” jurors in the jury pool. The following colloquy 

was had:

[Defense counsel:] [In the jury pool today,] [t]hree 

[jurors] were African-American, and the State struck two 

of them in their peremptory strikes — Juror No. 1 [T.K.], 

Juror No. 11 [K.F.], and the only remaining AfricanAmerican juror is Juror No. 24.

THE COURT: So they kept 33 percent of the AfricanAmericans that were called?

[Defense counsel:] Correct, Judge.

THE COURT: Okay. Make your prima facie case.

[Defense counsel:] Your Honor, specifically regarding 

Juror No. 11, there was no information elicited from that 

juror to explain, I believe, her being struck.

THE COURT: Also, the Court will take judicial notice 

that . . . Jackson is a black, African-American. And 

[defense counsel] is correct — Juror No. 1 is a black 

female, Juror No. 11 was a black female, and Juror No. 

24 was a black female. And the State did exercise their 

peremptory strikes on two of the black females — No. 1 

and No. 11.

The Court’s going to find that the defense has made a 

prima facie case for their Batson challenge.

Can [the State] please state your reasons why you struck 

Juror No. 1 and Juror No. 11, starting with Juror No. 1.
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[The State:] Sure. Thank you, Judge. [Juror No. 1] 

indicated she . . . has a medical condition; she’s diabetic. 

I can tell you that that has no bearing on the State using a 

peremptory strike for her. She has said that she disagreed 

— she has disagreed with physicians, historically, in the 

past. This is a medical and evidence — a medical-heavy 

case. I believe that that information is essential, that bears 

on the State’s input. And she also indicated that she has 

some law school, and I tend to stay away from attorneys 

and people with legal experience in jury trials. So, the 

gender and race-neutral reasons for striking her is, number one, her medical condition. Number two, the fact that 

she has medical experience which she has expressed disagreements with physicians, historically. We have seven 

physicians who will be testifying. She has prior law 

school experience. We think that is more than sufficient 

grounds for a Batson race and gender-neutral reason for 

striking her.

THE COURT: All right. Number 11?

[The State:] . . . . As indicated when the Court inquired 

of her, [she] has no children. This involves an allegation 

involving a three-month old child. She has a high school 

degree — or high school. Again, this is a medical-heavy 

case. Some of the terminology — well, I’ll tell you that 

she flat out said that she has an opinion about police 

officers; she does not trust police officers. And that, in 

and of itself, I think is sufficient grounds for the State to 

establish a race and gender-neutral reason for striking her. 

That, in addition to she has no children around, in addition to the fact that we are having seven expert witnesses 

testify to medical topics, I think is sufficient grounds for 

a peremptory strike.

THE COURT: Also, I want the record to reflect that 

I don’t know — when you did ask that question about 

the police, [juror No. 11] did raise her hand, but I don’t 

know if she was identified for the record, but I did note 
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in my notes that she was one of the jurors who raised her 

hand about suspicion of the police, to that question, as 

well as a couple other — several other jurors.

As to No. 1 — so I do find that the State has articulated a race-neutral reason for striking [name of juror No. 

11], No. 1. Is there any argument from the defense?

[Defense counsel:] Yes, Your Honor. There were also 

other jurors that were not struck that were not married 

and do not have children. . . . Juror No. 9 . . . not married, 

no children. Number 6 . . . not married, no children.

THE COURT: But I’ve already found [juror No. 11] — 

they articulated a race-neutral.

I’m talking about [juror No. 1]. Her reasoning is that her 

medical condition as well as her profession, that she does 

work with physicians and she does disagree with them.

[Defense counsel:] Your Honor, she — there were 

other individuals — other jurors that also reported health 

issues that were not struck. There were other individuals 

that discussed disagreeing with doctors, getting second 

opinions; they were not struck. Further, she — her education was not in this country. There’s no indication of 

whether — her knowledge of this legal system. That’s all, 

Your Honor.

THE COURT: I find also the State has articulated a 

race-neutral reason as to why Juror No. 1 was stricken, so 

I’ll deny the Batson motion.

(c) Arguments on Appeal

Jackson’s Batson challenge was based on the State’s use of 

peremptory strikes to strike both juror No. 1 and juror No. 11, 

“two African American women,” when “[t]here were only three 

African Americans originally in the venire.” Brief for appellant at 13.

(i) Juror No. 1

Jackson claims that “[w]ith respect to Juror No. 1, the State’s 

reasons for striking her were facially race-neutral, however, 
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several of the reasons cited by the State in striking Juror No. 1 

applied equally to other nonblack jurors who were permitted 

to serve on the jury.” Brief for appellant at 13. “As such, the 

singling out of Juror No. 1 suggests purposeful discrimination, 

similar to Foster.” Brief for appellant at 13. We would note 

that in Foster v. Chatman, 578 U.S. 488, 136 S. Ct. 1737, 195 

L. Ed. 2d 1 (2016), there was also evidence of shifting explanations by the prosecution, misrepresentations of the record, 

and a persistent focus on race in the prosecution’s file, none of 

which are present in the record currently before us. Therefore, 

in the present case, we are limited to reviewing the reasons 

proffered by the State and considering whether they were 

equally applied to other non-Black jurors who were permitted 

to serve on the jury.

When asked to give its reasons for striking juror No. 1, the 

State noted that juror No. 1 had “a medical condition” and that 

she was diabetic, but this had “no bearing on the State using 

a peremptory strike for her.” Rather, the State indicated that 

juror No. 1 “has disagreed with physicians, historically, in the 

past” and that this was a “medical-heavy case.” The State also 

noted that juror No. 1 had “some law school” and that the State 

tended “to stay away from attorneys and people with legal 

experience in jury trials.” And although previously stating juror 

No. 1’s medical condition had no bearing on the peremptory 

strike, the State proceeded to say that

the gender and race-neutral reasons for striking her is, 

number one, her medical condition. Number two, the fact 

that she has medical experience which she has expressed 

disagreements with physicians, historically. We have 

seven physicians who will be testifying. She has prior law 

school experience. We think that is more than sufficient 

grounds for a Batson race and gender-neutral reason for 

striking her.

Jackson argues, however, that “the State did not strike several jurors who also had medical issues or had experienced 

differing opinions among doctors.” Brief for appellant at 13. 
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Jackson points to juror No. 24, who indicated she had “lower 

back issues with a slipped disc.” She confirmed that if she 

could stand, move around, and stretch, it would help her back. 

As noted above, the State said that juror No. 1’s medical condition had “no bearing on the State using a peremptory strike for 

her,” yet the State subsequently included her “medical condition” as a “number one” reason for striking her. At a minimum, 

the State’s position related to juror No. 1’s medical condition 

is confusing based on the statements made during the Batson

hearing; however, the district court could have disregarded this 

reason as a basis for the striking of juror No. 1, since the State 

indicated juror No. 1’s medical condition had no bearing on its 

use of a peremptory strike against her. The inclusion of juror 

No. 1’s “medical condition” in the State’s summation of reasons in support of striking juror No. 1 may have been viewed 

by the district court as an inadvertent reference in light of the 

earlier statement.

Regarding the other two reasons proffered by the State, we 

note the following information revealed by juror No. 1: She is 

a “nurse at the VA” where she works with patients “coming out 

of surgery,” which work does not include children. She went 

to law school in Tunisia, came to the United States “four years 

ago,” and then went to nursing school at “St. Mary’s.” Juror 

No. 1 has three children between the ages of 24 and 31, and her 

husband is a fire marshal. When asked if anyone was “skeptical 

or disagreed with the physicians’ medical diagnosis,” juror No. 

1 responded, “[S]ometimes.” When asked what she would do if 

she disagreed with doctors in reaching a diagnosis, she said she 

might “investigate a little bit more.” However, she indicated 

that if a specialist, like an oncologist, gave an opinion “about 

radiology or a CT or an MRI scan,” the specialist was “believable” because of training in that area.

As for the State’s second reason for striking juror No. 1, 

it stated that she had “expressed disagreements with physicians, historically.” Jackson points out that the State did not 

strike either juror No. 4, 6, or 7, “who all had experiences 
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involving misdiagnoses by doctors or had sought second opinions from doctors.” Brief for appellant at 13. The record from 

voir dire reflects that juror No. 4’s son had a misdiagnosed skin 

rash, so he “ended up going to a different doctor.” Juror No. 

6’s brother had seen multiple doctors and none of them could 

diagnose the cause of his nerve pain, so he had to switch hospitals multiple times. Juror No. 7’s daughter had “absence epileptic syndrome,” and that juror’s family sought out a different 

specialist because the family felt the doctor was not thorough 

enough, meaning not spending enough time reviewing records 

or “even understanding what the labs were saying.” Juror No. 

7 found the subsequent doctor’s diligence to be “deeper.” Juror 

No. 7 stated that “you have to be an advocate in the space and 

you have to make sure they are answering the questions you 

want and be informed.”

One difference between jurors Nos. 4, 6, and 7, and juror 

No. 1 is that jurors Nos. 4, 6, and 7 all had family members 

who, as patients, experienced a misdiagnosis or sought second 

opinions for their medical conditions. Juror No. 1 was a nurse 

who, in her professional capacity, sometimes had a difference of opinion or disagreed with a doctor’s diagnosis. Thus, 

the State’s reason for striking juror No. 1, but keeping jurors 

Nos. 4, 6, and 7, was not entirely incongruous. However, we 

also bear in mind, that although juror No. 1 stated that if she 

disagreed with doctors in reaching a diagnosis, she might 

“investigate a little bit more,” she nevertheless also indicated 

that if a specialist gave an opinion, she would find the specialist “believable.” Juror No. 1’s philosophy in this regard is not 

different from juror No. 7’s, in that juror No. 7 also wanted 

a doctor’s diligence in reviewing records and understanding 

laboratory results to be “deeper” and to “be informed” by making sure doctors answer questions.

As for the State’s third reason for excluding juror No. 1, 

which was because of her law school experience, Jackson contends the State failed to question juror No. 1 about her prior 

law school experience. For example, the State did not follow 
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up with any questions about “how long ago” she attended law 

school, “how long she attended, whether she earned a degree, 

or whether the experience would have any bearing on her service as a juror.” Brief for appellant at 14. Jackson contends that 

“[t]he State’s avoidance of the topic belies its concern and professed motivation in striking Juror No. 1.” Id. However, during 

the Batson challenge, the State said that it “tend[s] to stay away 

from attorneys and people with legal experience in jury trials.” 

And juror No. 8, the only other juror that had professional legal 

training (a degree in paralegal studies), was also struck from 

the jury, although we do not know by whom.

Whether a defendant has shown purposeful discrimination 

“turns on factual determinations, and, ‘in the absence of exceptional circumstances,’ we defer to state court factual findings 

unless we conclude that they are clearly erroneous.” Foster v. 

Chatman, 578 U.S. 488, 500, 136 S. Ct. 1737, 195 L. Ed. 2d 1 

(2016). In this instance, the district court concluded that “the 

State has articulated a race-neutral reason as to why Juror No. 

1 was stricken, so I’ll deny the Batson motion.” In so concluding, the district court had to necessarily evaluate the persuasiveness of the justification proffered by the prosecutor and 

determine whether the explanation was a pretext for discrimination. See State v. Wofford, 298 Neb. 412, 904 N.W.2d 649 

(2017). The court’s decision indicates it believed the reasons 

proffered by the State and found no pretext to the explanations 

provided. Once a trial court has decided the ultimate question 

of intentional discrimination, the question on appeal is only 

whether the prosecutor’s reasons were facially race neutral and 

whether the trial court’s final determination regarding purposeful discrimination was clearly erroneous. See id. A trial court’s 

determination that the prosecutor’s race-neutral explanation 

should be believed frequently involves its evaluation of a 

prosecutor’s credibility, which requires deference to the court’s 

findings absent exceptional circumstances. Id.

Jackson concedes that the State’s reasons for striking juror 

No. 1 were facially race neutral, but suggests those reasons 
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were pretextual. In considering whether the district court clearly 

erred in finding that the prosecutor’s race-neutral explanation 

for the peremptory strike was genuine and not pretextual, we 

may consider the rationality of the prosecutor’s reason in our 

inquiry. See id. A prosecutor’s intuitive assumptions, inarticulable factors, or even hunches can be proper bases for rejecting 

a potential juror, so long as the reasons are not based on impermissible group bias. Id.

Although there were some similarities between juror No. 1 

and other jurors who were not struck, such as having a medical 

condition that might require a recess during the proceedings or 

not always being satisfied with a doctor’s assessment or diagnosis, there were other reasons articulated that the district court 

could have found credible and not pretextual. In particular, it is 

reasonable for attorneys to strike jurors who have law degrees 

or other legal training.

Based on our review of the record, we conclude the district 

court did not clearly err when it found that the prosecutor’s 

race-neutral explanation for striking juror No. 1 was valid and 

that the use of the peremptory challenge was not purposefully 

discriminatory. Accordingly, Jackson did not meet his burden 

of proving purposeful discrimination by the State in striking 

juror No. 1.

(ii) Juror No. 11

Jackson once again claims that several of the reasons cited 

by the State in striking juror No. 11 applied “equally to other 

nonblack jurors that the State did not strike.” Brief for appellant at 14-15. “Accordingly, the disparate treatment of Juror 

11 . . . raises an inference of purposeful discrimination.” Id. at 

15. Jackson also argues that the State’s failure to question juror 

No. 11 on the topics it identified shows that striking juror No. 

11 was “nothing more than a sham and a pretext for discrimination.” Id.

As noted by Jackson, “[t]he record contains no specific mentions of Juror No. 11 [during voir dire] except for her initial 
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responses to the court’s general questions of every venireperson — her marital, employment, and educational background.” Id. at 15.

During the Batson challenge, the State gave three reasons 

for striking juror No. 11: (1) She had a high school education, (2) she had no children, and (3) she did not trust police 

officers. Whether a prosecutor’s reasons for using peremptory 

challenges are race neutral is a question of law. State v. Briggs, 

303 Neb. 352, 929 N.W.2d 65 (2019).

Jackson does not challenge whether the State’s proffered 

reasons for striking juror No. 11 were facially race neutral. 

Rather, Jackson contends the State’s proffered reasons could 

have been equally applied to other non-Black jurors who the 

State did not strike, thus raising an inference of purposeful discrimination. We therefore limit our review accordingly.

When evaluating whether there has been purposeful discrimination, the trial court evaluates the persuasiveness of the justification proffered by the prosecutor, and it ultimately determines whether the explanation was a pretext for discrimination. 

See State v. Wofford, 298 Neb. 412, 904 N.W.2d 649 (2017). 

A trial court’s determination that the prosecutor’s race-neutral 

explanation should be believed frequently involves its evaluation of a prosecutor’s credibility, which requires deference to 

the court’s findings absent exceptional circumstances. Id.

Jackson points out that the State did not strike juror No. 5, 

who also had a high school education, or juror No. 6, who also 

did not have children. Jurors Nos. 5 and 6 each had one of the 

State’s cited reasons in common with juror No. 11. However, 

although juror No. 5 had a high school education, she also had 

children; the State noted that the allegation against Jackson 

involved a 3-month-old child. And although juror No. 6 did 

not have children, she had a college degree. In fact, of the 14 

jurors that remained after each side exercised its peremptory 

strikes, 13 had college degrees. During the Batson challenge, 

the State noted that this was a “medical-heavy case” and that 

seven expert witnesses would be testifying.
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Jackson also points out, “Despite the State’s representation 

that Juror No. 11 ‘flat out said that she has an opinion about 

police officers; she does not trust police officers,’ this assertion is not born out by the record.” Brief for appellant at 15. 

Further, “[T]he State did not follow up with any questions 

directed at Juror No. 11 to elaborate on why she indicated a 

suspicion of police and whether that opinion would impact her 

ability to serve as a juror.” Id. Thus, “The State’s assertion of 

this basis for striking Juror No. 11 is nothing more than a sham 

and a pretext for discrimination . . . .” Id.

During voir dire, the State asked who had a strong opinion, favorable or unfavorable, about law enforcement. Juror 

No. 6 stated that her father was a retired police officer and 

that she had a favorable opinion of law enforcement. The 

State then asked who was distrustful of police; it noted that 

“[t]here’s a room full of people and only, like, three people 

raised their hand.” No identification of which jurors raised 

their hands was made on the record. We point out here that it 

is very difficult to review Batson challenges when the record 

does not reveal which jurors raised their hands in response to 

a question that may later serve as a basis for striking a juror. 

The State continued to ask who had an opinion about police 

that might potentially affect their ability to listen to what was 

said, but apparently received no response from the jury pool. 

The State later asked again who was distrustful of the police, 

and again “hands . . . were raised”; no jurors were specifically identified once again. The State then asked, “Of those 

hands that were raised, are any of you distrustful to the point 

that you are not going to listen to an officer’s information and 

testimony with an open mind?” Juror No. 18 was the only one 

specifically identified on the record at that time. The State 

said, “The reason that I’m calling on you, [juror No. 18], is 

you raised your hand and I didn’t see a head nod one way or 

the other, so I’m not sure and I want to be fair to you and I 

want to make sure I know.” The State further said, “Tell me 

what you think,” “are your feelings so strong that you are 
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going to not listen to what they say?” Juror No. 18 stated that 

he would listen and keep an open mind. No other prospective 

juror was identified or questioned at that time.

However, during the Batson challenge, the court stated it 

wanted “the record to reflect” that juror No. 11 “was one of 

the jurors who raised her hand about suspicion of the police, 

to that question.” However, the record does not reveal whether 

juror No. 11 raised her hand in response to only the first 

inquiry about distrusting the police, when it was noted that 

three people raised their hands, or whether she may have also 

raised her hand in response to the later inquiry, when the State 

asked people whose “hands . . . were raised” whether they 

were “distrustful to the point” that they would not listen to 

“an officer’s information and testimony with an open mind.” 

Because only juror No. 18 was questioned after the latter 

inquiry, it is reasonable to conclude that no other juror raised 

his or her hand in response to that second inquiry. Therefore, 

while juror No. 11 was identified by the court as raising her 

hand in response to the question about suspicion of police, 

there is nothing to indicate she raised her hand to the followup 

question on whether she was so distrustful that she would not 

listen to an officer’s testimony with an open mind. However, 

juror No. 18, whose raised hand indicated he distrusted police, 

also specifically stated that he would listen and keep an open 

mind. Nevertheless, he was struck from the jury, although we 

do not know by whom.

The reasons the State gave for striking juror No. 11, besides 

her distrust of police officers, were that she had a high school 

education and had no children. This was also true for juror No. 

18, who was also struck. Of the 30 potential jurors remaining after the panel was passed for cause, jurors Nos. 11 and 

18 were the only two jurors who had no children and who 

did not report having at least some education beyond high 

school. As previously noted, of the 14 jurors that remained 

after each side exercised its peremptory strikes, 13 had college 

degrees, and the one who did not, had children. Contrary to 
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Jackson’s assertion, the State’s reasons for striking juror No. 

11 did not apply equally to other non-Black jurors who were 

permitted to serve on the jury. Jackson did not meet his burden 

of proving purposeful discrimination by the State in striking 

juror No. 11.

(iii) Summary

Jackson’s claim under Batson v. Kentucky, 476 U.S. 79, 106 

S. Ct. 1712, 90 L. Ed. 2d 69 (1986), fails because the prosecutor’s reasons for striking jurors Nos. 1 and 11 were facially 

race neutral, and giving deference to the district court’s consideration of the prosecutor’s credibility, we cannot say that its 

determination that there was no purposeful discrimination was 

clearly erroneous.

2. Sentence

Jackson was convicted of one count of child abuse resulting in serious bodily injury, a Class II felony, pursuant to 

§ 28-707(7). The Class II felony was punishable by 1 to 50 

years’ imprisonment. See Neb. Rev. Stat. § 28-105 (Reissue 

2016). Jackson was sentenced to 14 to 18 years’ imprisonment, with credit for 538 days already served; his sentence was 

within the statutory range.

When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2) mentality, (3) education and 

experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation 

for the offense, as well as (7) the nature of the offense and (8) 

the violence involved in the commission of the crime. State v. 

Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020). The appropriateness of a sentence is necessarily a subjective judgment and 

includes the sentencing judge’s observation of the defendant’s 

demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. Id.

Jackson was 29 years old at the time of sentencing. 

According to the presentence report, Jackson was single and 

had one child, a sibling of the victim in this case. He reported 
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being expelled from high school, but he earned his high 

school diploma while in prison in 2013. According to Jackson, 

he had recently worked for his adoptive father’s construction company.

Jackson reported that when he was a child, he and his two 

biological brothers were removed from their mother’s home 

because of her drug use. They were placed in several foster 

homes, where Jackson experienced abuse and was molested. 

Jackson and his brothers were subsequently adopted. He claims 

that his adoptive parents did not treat him and his brothers the 

same as their own daughters and that he received “severe punishments and belt-whippings.” According to Jackson, his adoptive family was not poor, “but he lived a life of neglect and 

poverty by his adoptive parents’ choice.” He acknowledged 

that he experienced serious behavior problems as a child and 

frequently ran away from home.

Jackson’s prior adult criminal history includes: “Obstruct 

Administration of Law” and theft by unlawful taking in 2009 

(30 days in jail for each count); leaving the scene of a property damage accident in 2010 (15 days in jail); shoplifting 

and failure to appear in 2010 (2 days in jail on each count); 

theft by unlawful taking in 2010 (20 days in jail); third degree 

domestic assault in 2010 (180 days in jail); possession of 

methamphetamine in 2010 (placed in drug court, but later 

withdrew and was sentenced to 90 days in jail); unauthorized 

use of a motor vehicle (3 months in jail), theft by unlawful taking (6 months in jail), unauthorized use of a financial 

transaction device (6 months in jail), and criminal possession 

of a financial transaction device (3 months in jail) in 2010; 

third degree domestic assault in 2011 (180 days in jail); burglary in 2011 (2 to 4 years’ imprisonment, but parole revoked 

in 2013); false information in 2014 (2 days in jail); theft 

by unlawful taking, over $1,500, in 2014 (270 days in jail); 

receiving unlawfully taken property in 2014 (60 days in jail); 

“Theft Shoplifting” in 2014 (30 days in jail); theft by unlawful taking in 2014 (90 days in jail); felony escape in 2014 
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(1 year in prison); terroristic threats in 2015 (1 year in prison); 

“Theft Shoplifting” in 2016 (120 days in jail); “Obstruct 

Administration of Law” in 2016 (20 days in jail); “Theft 

Shoplifting” in 2017 (1 year in prison and 12 months’ “PRS”); 

“PRS” revoked in 2018 (90 days in jail); and theft by unlawful 

taking in 2018 (120 days in jail). Jackson also served jail time 

for numerous other counts of failing to appear, driving under 

suspension, no proof of ownership or insurance, and no valid 

registration. During periods of confinement, Jackson incurred 

“lockdowns” for numerous incidents. He has a diagnosis of 

antisocial personality disorder.

The presentence report contains a victim impact statement 

from a Nebraska Department of Health and Human Services 

case coordinator and the victim’s mother. The case coordinator reported that the victim, now 21 months old, “is strong but 

will be forever changed” due to Jackson’s actions. The victim’s “[d]iagnosis due to incident [includes]: traumatic brain 

injury, epilepsy, symbolic dysfunctions, dysphagia, generalized weakness, cerebral palsy, sleep disorder, [and] obstructive 

sleep apnea.” The projected yearly costs are $105,699 for the 

victim’s “outpatient, pharmacy, inpatient, [and] professional 

services, [and] surgeries.” The victim’s mother reported that 

the case has “affected my family alot [sic].” The mother also 

stated that the victim has “[r]ight [h]emiplegic cerebral palsy” 

and does not walk.

The probation officer conducted a “Level of Service/Case 

Management Inventory.” Jackson was assessed as a “very high 

risk” to reoffend. He scored “very high risk” in the criminogenic risk factor domains for family/marital, companions, procriminal attitude/orientation, and antisocial pattern. He scored 

“high risk” in the domains for criminal history, education/

employment, leisure/recreation, and alcohol/drug problem. The 

probation officer recommended that Jackson be sentenced to a 

term of incarceration.

At the sentencing hearing, Jackson’s counsel stated that 

in the presentence report there was “significant information 
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regarding . . . Jackson’s childhood and his upbringing demonstrated a significant amount of disfunction [sic] in his background.” Jackson “was the product of trauma and neglect from 

a very young age at the hand of multiple adults.” Counsel 

asked the district court to consider giving Jackson “a broad 

range of a sentence” because it would give him an “incentive to work towards programming in a correctional facility.” 

Counsel stated that “if there’s a minimum of two or three 

years,” Jackson would be eligible for programming, and “[a] 

higher number on the top with a wide range will not only give 

him that incentive but also will give him the benefit of supervision for an extended period of time.”

The State said that it could “appreciate the upbringing” 

Jackson had and that it understood what trauma could do to 

someone, but “it does not excuse the fact that he now inflicted 

trauma on a baby,” who “has a significant amount of brain 

loss” and will never be “fully functioning.” The State said that 

child “will never be able to walk [or] talk” and that she “is 

forever going to have lifelong effects, whether there’s cerebral 

palsy, learning disabilities, but those are going to be some prolonged and profound effects.” According to the State, Jackson, 

“as young as he is,” “has a very long-standing criminal history, 

a very violent history,” and “[t]here’s quite a bit of domestic abuse.” The State asked the district court to incarcerate 

Jackson, but submitted the length of the incarceration to the 

court’s discretion. However, the State asserted that “something 

as low as two to three years is, honestly, offensive given the 

nature and the gravity of the crime.”

The district court noted that it had received three letters 

from Jackson and his family members that it was making 

part of the presentence report. The court stated that although 

Jackson claimed he did not do anything, it was going to sentence him based on the finding of the jury that he was guilty 

beyond a reasonable doubt of intentional child abuse resulting 

in serious bodily injury. The court said it understood Jackson’s 

upbringing, but noted that he had been in trouble with the 
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law on multiple occasions going back to 2009, when he was 

a juvenile. The court said it “[could not] overlook the facts 

of this case” or “[Jackson’s] criminal history.” The court sentenced Jackson as set forth previously.

In his brief on appeal, Jackson contends that his sentence 

was excessive and an abuse of discretion because the district 

court failed to adequately consider the mitigating factors. He 

claims the court failed to adequately consider his age, education and experience, mentality, and the circumstances of the 

offense when it imposed sentence, and he further claims that 

had the court properly considered the mitigating factors, his 

sentence “would have been substantially shorter.” Brief for 

appellant at 23. Jackson then recounts his “tumultuous childhood,” id., and the facts that he completed high school while 

incarcerated, worked for his adoptive father, has a great relationship with his daughter, and has a “support system” following release, id. at 24. He also recounts that he “reacted immediately when he saw [the victim] needed help and was the first 

to rush paramedics to her presence at the scene.” Id. Jackson 

also maintains his innocence.

Having considered the relevant factors in this case, we 

find that Jackson’s sentence was not excessive or an abuse of 

discretion, and his sentence is therefore affirmed. See State 

v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020) (sentence 

imposed within statutory limits will not be disturbed on appeal 

absent abuse of discretion by trial court).

VI. CONCLUSION

For the reasons stated above, we affirm the district court’s 

decision denying Jackson’s Batson challenge. We also affirm 

Jackson’s conviction and sentence.

Affirmed.