1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 48505

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.
PATRICIA J. CROSBY

- WHITE ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) Filed: June 28, 2022
Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Gerald F. Schroeder , District Judge. Hon. Michael Oths, Magistrate.
Decision of the district court, on intermediate appeal from the magistrate court, affirming judgment of conviction for false report s , affirmed

. Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis , Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson , Deputy Attorney General, Boise, for res pondent.

________________________________________________ LORELLO, Chief Judge Patricia J. Crosby

- White appeals from a decision of the district court, on appeal from the magistrate court, affirming her judgment of conviction for false report s

. W e affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
T he State charged Crosby

- White with violating Boise City Code Section 5

- 2

- 9(B ) by providing false information to officers during an investigation. The case proceeded to a jury trial. During jury selection, the State exercised all four of its peremptory strikes to remove female jurors. Crosby

- White challenge d the State ’ s use of its peremptory strikes . In response , the State proffered
its reasons for removing each juror . For one of the jurors, R .A., counsel for the State could not

“ remember the exact reason ” but asserted that R.A. was “ a big no right away due to one of her2

responses in voir di re. ” The magistrate court denied Crosby

- White ’ s challenge to the State ’ s use of its peremptory strikes

. Ultimately, the jury found Crosby

- White guilty of the charged offense. Crosby

- Whit e appealed to the district court , asserting that the magistrate co urt erred in denying her challenge to the State ’ s use of its peremptory strikes

. 1 The district court affirmed. Crosby

- White again appeals.
II. STANDARD OF REVIEW For an appeal from the district court, sitting in its appellate capacity over a case from the magistrate division, we review the magistrate court record to determine whether there is substantial and competent evidence to support the magistrate court ’ s findings of fact and whether the magistrate court ’ s conclusions of law follow from those findi ngs. State v. Korn , 148 Idaho 413, 415, 224 P.3d 480, 482 (2009). However, as a matter of appellate procedure, our disposition of the appeal will affirm or reverse the decision of the district court. State v. Trusdall , 155 Idaho 965, 968, 318 P.3d 955, 958 (Ct. App. 2014). Thus, we review the magistrate court ’ s findings and conclusions, whether the district court affirmed or reversed the magistrate court and the basis therefor, and either affir m or reverse the district court.
III. ANALYSIS Crosby

- Whit e asserts the district court erred in affirming the magistrate court ’ s denial of her challenge to one of the State ’ s peremptory strikes

. Specifically, Crosby

- White asserts that the
State failed to present a gender

- neutral reason for striking R.A. and that a statistical and comparative juror analysis, combined with what Crosby

- White characterizes as the State ’ s

“ ambiguous misrepresentation of the record, ” shows that the State ’ s peremptory strike was discriminatory. In response, t he State acknowled ges that it “ failed to proffer a specific gender

- neutral explanation ” for striking R.A. but contends that substantial evidence supports a finding that the State ’ s use of a peremptory strike to excuse R.A. w as not discriminatory

. Because

1 Crosby

- White raised two other issues on appeal to the district court but, on appeal to this Court, does not challenge the district court’s resolution of those issues. Consequently, we do not address them.3

Crosby

- White faile d to preserve her arguments for appeal and otherwise fail s to show error, we affirm

. A party violate s the Equal Protection Clause of the Fourteenth Amendment by exercising a peremptory strike based on a prospective juror ’ s gender. J.E.B. v. Alabama ex re l. T.B. , 511 U.S. 127, 146 (1994 ). A three

- step process applies in determining whether such a violation occurred

. Id. at 145 ; Batson v. Kentucky , 476 U.S. 79, 96

- 98 (1986)

. First, the party asserting a violation , commonly referred to as a Batson challenge, must establish a prima facie case that the opposing party removed a prospective juror based on gender. See Batson , 476 U.S. at 96

. Second, the opposing party must articulate a gender

- neutral reason for the peremptory strike. See id. Third, the trial court must determine whether the prospective juror was removed based on gender

. See id. at 98. Throughout this three

- step process, the burden of proof remains with the party asserting a violation. See Purkett v. Elem , 514 U.S. 765, 768 (1995 ). The State concedes that Crosby

- White presented a prima facie case of discrimination, leaving only the second and third Batson steps at issue. Crosby

- White did not , however, present to the magistrate court the arguments she now makes on appeal regarding t hese two steps. Appellate court review is limited to the evidence, theories, and arguments that were presented below. State v. Garcia

- Rodriguez , 162 Idaho 271, 275, 396 P.3d 700, 704 (2017). To preserve an argument disputing an opposing party ’ s proffere d reason for striking a juror, the party must assert the argument before the trial court. See U nited States v. Walley , 567 F.3d 354, 358 (8th Cir. 2009 ) (declining to consider defendant ’ s argument on appeal that government ’ s explanation for a strike

was pretextual because defendant failed to raise it before the trial court) ; United States v. Jackson , 347 F.3d 598, 605 & n.2 (6th Cir. 2003) ( reviewing for plain error because defendant failed to rebut the governmen t ’ s explanation for the strike) ; United Sta tes v. Contreras

- Contreras , 83 F.3d 1103, 1105 (9th Cir. 1996) (reviewing for plain error because defendant failed to rebut the government ’ s explanation for the strike); see also Davis v. Baltimore Gas & Elec. Co. , 160 F.3d 1023, 1028 (4th Cir. 1998) (hold ing that party waived Batson challenge by failing to dispute4

opposing party ’ s proffered reason for the peremptory strike); United States v. Arce , 997 F.2d 1123, 1127 (5th Cir. 1993) (same); United States v. Rudas , 905 F.2d 38, 39 (2d Cir. 1990) (same). 2 When first raising the Batson challenge, Crosby

- White ’ s counsel did not expressly assert that the State discriminated based on gender. Instead, she argued : At this time I would be raising a Batson challenge. My client is entitled to have a jury of her peers, that includes women. Women are a protected

-- sex is a protected class, and it appears that all of [the State ’ s] strikes were women. So that gives me pause . [The State] needs to be able to ex plain why [the State] had them struck for a reason other than their sex. ( E mphasis added). After the State gave its reasons for each strike, the magis trate court asked Crosby

- White if she had “ anything else [she] wanted to add regarding the Batson questio n

. ” She responded by “ making the record ” that one of the jurors indicated that she would be impartial despite knowing Crosby

- White ’ s counsel. This clarification of the record had to do with the
State ’ s reason for striking one juror, which was that the ju ror might remember her connection with Crosby

- White ’ s counsel midway through trial. Crosby

- White ’ s clarification, however, rested on an erroneous recollection of the record. During voir dire, Crosby

- White ’ s counsel informed the juror that they both were on a dance team in college and asked the juror whether that would “ impact [her] ability to be impartial. ” T he juror respond ed by saying, “ I don ’ t know you. ” The juror did not, as Crosby

- White represented to the magistrate court, “ indicate it would not im pact her ability ” to be impartial. Crosby

- White ’ s erroneous recital of the record did not rebut the State ’ s reason for striking this juror. Even if construed as rebuttal, Crosby

- White does not assert this argument on appeal and, consequently, has forfeited it. See State v. Zichko , 129 Idaho 259, 263, 923 P.2d 966,

2 We recognize that, in one opinion, the United States Supreme Court conducted a comparative

-

juror analysis when addressing a Batson challenge despite the argument not being raised before the trial court. S ee S nyder v. Louisiana , 552 U.S. 472, 483 (2008) . However, the Court noted that the state supreme court had not held that the comparative

- juror analysis was “procedurally defaulted” but, instead, had conducted its own comparative

- juror analysis on appeal. Id. at 483 n.2. Because the Court deferred to the state court’s application of its procedural rules, the Court’s ruling in Snyder did not create an exception to a state’s preservation requirements. See Walley , 567 F.3d at 358 . Consequently, to preserve an argument for appeal, a defendant must
asser t before the trial court the argument (including an argument based on a comparative juror analysis) disputing the State’s proffered reasons for striking a juror. See State v. Ish , 166 Idaho 492, 509, 461 P.3d 774, 791 (2020).5

970 (1996) (noting that a party forfeits an issue on appeal if either authority or argument is lacking). This attempted clarification was the only response to the State ’ s reasons for st riking the four female jurors. Notably, Crosby

- White did not assert that any of the State ’ s reasons were pretextual or raise any of the arguments regarding the second and third Batson steps that she now asserts on appeal. In her reply brief, Crosby

- Whit e contends that “ she was not provided [an] opportunity ” to present a comparative

-

juror analysis , which forms the basis for one of the arguments she asserts for the first time on appeal. 3 We disagree . As noted above, the magistrate court asked Crosby

- Whit e for further comment s after the State gave the reasons for its peremptory strike s

. This provided an opportunity for Crosby

- White to make an argument based on a comparative

- juror analysis, as well as any of the arguments she now asserts on appeal. B ecaus e Crosby

- White failed

to argue that the State ’ s reasons were pretextual, her arguments on appeal regarding the second
and third Batson steps are not preserved. Even if preserved, Crosby

- White ’ s arguments fail to show error

. In addressing the second
Batson step on intermediate appeal, the district court held that Crosby

- White failed to show “ how the [State ’ s] proffered responses ” for all four jurors “ were discriminatory on their face. ” O n appeal , Crosby

- White asserts the district court erred on the second Batson step only as to juror R.A., thereby forfeiting consideration of whether the district court erred on this step as to the three
other jurors subject to the State ’ s peremptory strikes

. See Zichko , 129 Idaho at 263, 923 P.2d at 970 . Consequently, we l imit our analysis on the second Batson step to the State ’ s proffered reason for striking R.A.

3 On a related note, Crosb y

- White asserts that the magistrate court “never proceeded to step three” of the Batson process. Following Crosby

- White’s comment attempting to clarify the record, the magistrate court remarked, “I think that the State

-- I did a little research and I think the State did what was necessary to justify or explain [its] reasoning, so I don’t think there is a valid Batson challenge. Objection is noted.” It is well settled that in order for an issue to be raised on appeal, the record must reveal an adverse ruli ng that forms the basis for assignment of error. State v. Huntsman , 146 Idaho 580, 585, 199 P.3d 155 , 160 (Ct. App. 2008) ; State v. Amerson , 129 Idaho 395, 401, 925 P.2d 399, 405 (Ct. App. 1996). Thus, if Crosby

- White’s characterization of the magistrate court’s remarks is correct, then she failed to obtain an adverse ruling on the third Batson step, providing an additional basis for not considering the arguments she now raises on appeal regarding that step.6

For the second Batson step, the proffered reason need not be “ persuasive , or even plausible. ” Purkett , 514 U.S. at 767

- 68 . Instead, the reason must be facially valid and “ not deny equal protection. ” Id. at 768

- 69

. T he reason will be deemed gender

- neutral unless a discriminatory intent inheres in the reason. Id. at 768. However, a party does not “ satisfy [its] burden of production by merely denying t hat [it] had a discriminatory motive or by merely affirming [its] good faith. ” Id. at 769

. Our review of the second Batson step is de novo. State v. Ornelas , 156 Idaho 727, 732, 330 P.3d 1085, 1090 (Ct. App. 2014)

. For juror R.A., the State offered the following reason for its strike: And then finally, [R.A.], I had a direct no from her. I can ’ t remember the exact reason. She was the first person I struck. And that was

-- honestly I can ’ t remember what she said, but I had a big no right away due to one of her responses in voir dire. I ’ m sorry, I don ’ t remember exactly what the reason was. She was a hard no based on a response she gave. On appeal, the State “ acknowledges that [it] failed to proffer a specific gender

- neutral explanation for the dismis sal of prospective juror R.A. during the second step of the Batson analysis ” and that
it “ instead generally denied any improper purpose. ” This concession, however, does not establish

a “ per se violation of Batson. ” See Gonzalez v. Brown , 585 F.3d 1202, 1 208 (9th Cir. 2009)

. Instead, the State ’ s failure to articulate a specific gender

- neutral reason becomes evidence of discrimination considered under the third Batson step

. See Gonzalez , 585 F.3d at 1208

. The third step requires an assessment of whether purposeful discrimination motivated a peremptory strike . As part of this assessment, a trial court can consider a variety of factors , including a party ’ s disparate questioning of jurors, a history of a party ’ s preemptory strikes in past cases, a comparis on of jurors, a party ’ s misrepresentations of the record while defending a strike, and a party ’ s statistical use of strikes

. Flowers v. Mississippi , ___ U.S. ___, ___, 139 S. Ct. 2228, 2243 (2019) ; State v. Ish , 166 Idaho 492, 505, 461 P.3d 774, 787 (2020 )

. When the party raising
the Batson challenge fails to alert the trial court to alleged similarities between jurors, such a failure leaves the reviewing court with “ a cold appellate record [that] may be very misleading

. ” Snyder
v. Louisiana , 552 U.S. 47 2, 483 (2008)

. I n that scenario , we “ must be mindful that an exploration of the alleged similarities at the time of trial might have shown that the jurors in question were not really comparable. ” Id. Because the third Batson step involves the credibility of the party who7

made the strikes, the party ’ s demeanor will often predomina t e in the analysis

. Id. at 477

. On appeal, we generally defer to a trial court ’ s credibility determination

. Id

. Regarding juror R.A., we recogniz e that ( as Crosby

- White notes ) a “ prima facie showing plus the evidence of discrimination drawn from the s tate ’ s failure to produce a reason ” for a strike

“ will establish purposeful discrimination by a preponderance of the evidence in most cases

. ” Paulino v. Harrison , 542 F.3d 692, 703 (9th Cir. 2008) . The circumstances of this case, however, present an exception to the general rule. The State did not represent that it could not remember a reason at all but , instead, that it could not remember the precise response from R.A. that led to the
State ’ s strike. Considered on its face and in isolation, this explanation fails to give a gender

- neutral reason for the strike , as the State acknowledges . However, when considered in connection with statements during voir dire , the State ’ s explanation provides a plausibl e valid reason , diminishing the discriminator y inference drawn from the failure to remember the precise response

. During voir dire, the State asked jurors if they disagreed with a quote that “ omission is the most powerful form of lying, ” a position consonant with the State ’ s theory of the case. The following dialogue ensued when R.A. responded: [R.A.]: I don ’ t know if I can comment really. I mean it is, I guess, a form

of lying. But you are just like, I [am] avoiding it right. [State]: I think what we are getting to is you want the context, right? [R.A.]: The most powerful, no. R.A. ’ s initial agreement that omission is “ a form of lying, ” though somewhat favorable to the State, was qualified with “ I guess, ” indi cating reticence or hesitation

. Her latter response , however, directly disagreed with the concept that omission is the most powerful form of lying , rendering it plausible that this response furnish ed the “ hard no ” for the State in deciding to strike
R.A. Consequently, the inference of discrimination based on the State ’ s failure to recall the precise response is diminished. In addition, a s the State notes, t his negative inference is further diminished b y the State ’ s articulated non d iscriminatory reasons for the three other jurors it struck

. See Gonzalez , 585 F.3d at 1210 ( holding “ t he fact that the prosecutor could articulate coherent reasons ” for her strikes on one day “ makes her explanatio n that she simply could not remember why she had excused the first juror ” on the day prior “ more believable ” ). Thus, the inference of discrimination stemming from the State ’ s failure to articulate a specific gender

- neutral reason is
minimal.8

Crosby

- White counters that “ this rationale was never provided to the magistrate court

. ” Specifically, she notes opinions observing that an appellate cou rt should not postulate possible and valid reasons for the strike that were not offered by the party defending against a Batson challenge

. See Miller

- El v. Dretke , 545 U.S. 231, 252 (2005) ; Gonzalez , 585 F.3d at 1207 . Here, however, the record supplied a plausible explanation for the State ’ s proffered reason for striking R.A., not an entirely new reason. Thus, the opinions cited by Crosby

- White are inapposite. For two of the other female jurors removed by the State, Crosby

- White asserts that comparing these two jurors to jurors who were not removed reveals that the State ’ s proffered

reasons were pretextual. 4 But, as the State notes, the “ transcript does not definitively identify the speaker of every statement made during the voir dire process. ” It is the responsibility of the appellant to provide a sufficient record to substantiate his or her cl aims on appeal. State v. Murinko , 108 Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985). In the absence of an adequate record on appeal to support the appellant ’ s claims, we will not presume error. State v. Beason , 119 Idaho 103, 105, 803 P.2d 1009, 101 1 (Ct. App. 1991). If jurors are not clearly identified during voir dire, an appellate court may “ lack sufficient information to conduct a comparative juror analysis. ” Ornelas , 156 Idaho at 738, 330 P.3d at 1096 . Although many of the prospective jurors ’ statements in Crosby

- White ’ s case were identified, there were statements that came from unidentified jurors. For example , one unidentified juror remarked that Crosby

- White “ needs to defend herself if she wants to be proven innocent. ” Although the magist rate court promptly remedied the erroneous notion by instructing the jury about the presumption of innocence and a
defendant ’ s right not to testify, and the unidentified juror agreed to follow those instructions, the juror ’ s remark indicates a bias unfavor able to a nontestifying defendant. Other statements made
b y unidentified jurors were not favorable to the State. When asked if anyone disagreed with the proposition that “ withholding of information that is obviously pertinent to the case is a form of
obs truction, ” one unidentified juror responded, “ If they don ’ t ask the question, you don ’ t have to

answer. ” Without knowing who made these (and other) statements, it could be that the two

4 As noted above, Crosby

- White forfeited consideration of whether the district court erred as to these jurors as it concerned the second Batson step. This forfeiture, however, does not extend to the third Batson step because Crosby

- White presents arguments on appeal regarding these jurors as it concerns that step.9

removed female jurors gave unfavorable statements and that male jurors who were not removed
gave favorable statements , giving the State valid bases for its strikes

. In short, we cannot conduct a meaningful compara tive juror analysis on appeal. Consequently, we decline to consider Crosby

- White ’ s arguments comparing response s from the two other female jurors with remarks
from other jurors. Crosby

- White also asserts that the State misrepresented the record, providing additional evidence of discriminatory intent. A party ’ s misrepresentation of the record while defending a

str ike “ supports the inference that the proffered reason is pretext

. ” Ish , 166 Idaho at 508, 461 P.3d

at 790

. If it is unclear whether a misrepresentation occurred , an appellate court will “ take the ambiguous nature of the record into consideration. ” Id. at 508, 461 P.3d at 790

. When responding
to the Batson challenge, the State prefaced its reasons for striking each juror by representing that its “ intent was not to strike women for being women ” and that it “ actually was going to strike [a male juror] as well, that was going to be [the State ’ s] second strike. ” Crosby

- White asserts this misrepresented the record because she removed this male juror on her second strike, providing the State an opportunity to strike this male juror on its second strike.
Cro sby

- White ’ s assertion, however, rests on a claimed fact un supported by citation to the
trial record

. This Court will not search the record for errors when an appellant fails to provide citations to the record. State v. McDay , 164 Idaho 526, 528, 432 P.3d 643, 645 (2018)

. In support of her assertion that this male juror was her second strike, Crosby

- White cites not to the trial record, but to her brief to the district court on intermediate appeal. In that brief , Crosby

- White claimed
that she “ struck the [male juror] on [her] own second strike, after the State had already used two of its four strikes

. ” But, like her brief on appeal to this Court, Crosby

- White failed to provide any supporting citation to the trial record in support of this assertion . Cros by

- White ’ s citation to an intermediate appellate brief does not satisfy the requirement to provide citations to the trial record. Because Crosby

- White ’ s misrepresentation argument hinges on this unsupported fact, we need not consider the merits of this as sertion

. This leaves Crosby

- White ’ s assertion that the State ’ s statisti cal use of strikes in this

case

-- four of four strikes removed female juror s

-- supports an inference of discrimination. As Crosby

- White admits, statistical evidence is “ strong evid ence of discriminatory intent ” but, standing alone, “ is insufficient to find clear error

. ” Ish , 166 Idaho at 504, 461 P.3d at 786 . We10

hold that this statistical evidence, combined with the minimal inference of discrimination from the
State ’ s failure to r ecall the precise response from R.A., still falls short of showing clear error. Consequently, Crosby

- White has failed to show that the magistrate court erred in denying her
Batson challenge.
IV. CONCLUSION Crosby

- White failed to preserve the arguments she now asserts on appeal and, in any event, has failed to show the magistrate court erred in denying her Batson challenge. Thus, Crosby

- White has failed to show that the district court erred in affirming the magistr ate court ’ s denial of her
Batson challenge. Accordingly, the decision of the district court, on intermediate appeal from the magistrate court, affirming Crosby

- White ’ s judgment of conviction for false reports is affirmed. Judge GRATTON and Judge BRAILSFO RD, CONCUR

.