NOTICE: NOT FOR OFFICIAL PUBLICATION. 

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE 

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ASHANTUA KIE MAKEL, Appellant.

No. 1 CA-CR 15-0091 

Appeal from the Superior Court in Maricopa County 

No. CR2014-119000-001 

The Honorable Daniel J. Kiley, Judge 

AFFIRMED 

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Colby Mills 

Counsel for Appellee 

The Heath Law Firm, PLLC, Mesa 

By Mark Heath 

Counsel for Appellant
STATE v. MAKEL 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge Maurice Portley delivered the decision of the Court, in which 

Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined. 

P O R T L E Y, Judge: 

¶1 Ashantua Kie Makel appeals her convictions and sentences 

for possession or use of dangerous drugs and possession of drug 

paraphernalia. She challenges the trial court’s finding that the State did not 

strike the sole Black juror with discriminatory intent. Because we find no 

error, we affirm the ruling. 

FACTS1 AND PROCEDURAL BACKGROUND 

¶2 Makel was discovered in a car parked in the alley behind a 

strip mall. When asked, she was unable to find her identification card, and, 

on the floorboard, the police officer saw an open folding knife and small 

baggies, some of which contained a crystal substance he suspected was 

methamphetamine. After Makel got out of the car, the officer retrieved the 

knife, baggies, a glass pipe suspected to be used for smoking 

methamphetamine, and a pouch containing ten more baggies. 

¶3 Makel was arrested and subsequently indicted for possession 

or use of dangerous drugs and possession of drug paraphernalia. The jury 

found her guilty as charged, and she was subsequently sentenced to prison. 

We have jurisdiction over her appeal pursuant to Article 6, Section 9, of the 

Arizona Constitution, and Arizona Revised Statutes (“A.R.S.”) sections 

12–120.21(A)(1), 13–4031, and –4033(A).2

DISCUSSION 

¶4 Makel raises one issue on appeal. She argues the trial court 

abused its discretion by permitting the State to strike the only Black juror 

 

1 We view the facts “in the light most favorable to sustaining the verdict, 

and resolve all reasonable inferences against the defendant.” State v. 

Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997) (citation 

omitted).

2 We cite to the current version of the statutes unless otherwise noted. 
STATE v. MAKEL 

Decision of the Court 

3

on the venire, given that the State’s reason for striking the juror was a 

pretext for its true discriminatory motive. 

¶5 We review a ruling denying a Batson3 challenge for clear error, 

giving “great deference to the trial court’s ruling” because the court has to 

assess a prosecutor’s credibility and is in a better position to assess the 

reason the potential juror was stricken. State v. Bustamante, 229 Ariz. 256, 

260-61, ¶ 15, 274 P.3d 526, 530-31 (App. 2012) (citations omitted). 

¶6 The Equal Protection Clause of the Fourteenth Amendment to 

the United States Constitution precludes a party from using race to 

eliminate a prospective juror with a peremptory strike. State v. Gay, 214 

Ariz. 214, 220, ¶ 17, 150 P.3d 787, 793 (App. 2007) (citing Batson v. Kentucky,

476 U.S. 79, 89 (1986)). A party who believes a prospective juror has been 

struck for a discriminatory reason may challenge the strike. The State must 

then “provide a race-neutral reason for the strike” and then the trial court 

“must determine whether the challenger has carried [her] burden of 

proving purposeful racial discrimination.” State v. Roque, 213 Ariz. 193, 203, 

¶ 13, 141 P.3d 368, 378 (2006) (citations omitted). In evaluating any raceneutral explanation and the credibility of the proffered explanation, the 

court can consider “the prosecutor’s demeanor; . . . how reasonable, or how 

improbable, the explanations are; and . . . whether the proffered rationale 

has some basis in accepted trial strategy.” Gay, 214 Ariz. at 220, ¶ 17, 150 

P.3d at 793 (quoting Miller-El v. Cockrell, 537 U.S. 322, 339 (2003)); see 

Bustamante, 229 Ariz. at 261, ¶ 17, 274 P.3d at 531. And we will not reverse 

the court’s determination unless the reasons provided by the State are 

clearly pretextual. Roque, 213 Ariz. at 204, ¶ 15, 141 P.3d at 379. 

¶7 Here, Makel argued the State used a peremptory strike on

Juror 11 on the basis of race because she was the only African-American 

woman in the venire panel and had stated she could be fair and impartial. 

The State responded by explaining that it had struck Juror 11, a certified 

nurse working at a senior living facility, and every prospective juror who 

indicated “that they were a nurse or had some kind of experience in that 

field.” The State also stated it had struck a juror whose wife was a nurse 

because he was “very familiar with her work.” The court found that the 

State provided “race-neutral basis for striking” Juror 11 and overruled the 

Batson challenge. 

¶8 Later, and outside of the presence of the selected jurors, Makel 

supplemented her challenge by stating that “the prosecutor did not strike 

 

3 Batson v. Kentucky, 476 U.S. 79 (1986). 
STATE v. MAKEL 

Decision of the Court 

4

anybody else [who] was a nurse,” and that Juror 11 appeared to be the only 

African-American on the venire. The State responded that it had struck two 

other potential jurors in the healthcare field, and had not struck others who 

were minorities. 

¶9 Makel now argues that the State’s failure to strike Juror 1, who 

she contends was White and had a wife connected to the medical field, is 

evidence that the State’s reason was a pretext for its discriminatory intent. 

We disagree. 

¶10 Because Makel failed to raise the argument to the trial court 

to allow the court to resolve the claim, we cannot now conduct a clear error 

review. See State v. Medina, 232 Ariz. 391, 404, 05, ¶¶ 48, 49, 306 P.3d 48, 61, 

62 (2013) (noting that a comparison of jurors based on a cold record may be 

misleading when alleged similarities were not raised at trial and, as a result, 

“[w]e decline to examine more detailed comparisons than were alleged at 

trial.”) (citation omitted). However, even if we considered the argument, 

the record reveals differences between Jurors 11 and 1; while Juror 11 had 

been employed at a health facility for five years, Juror 1’s spouse, a former 

marketing director for the Burn Foundation, had recently started working 

there again, a non-medical job, under a three-month contract. Because there 

are differences between the two jurors, the record does not reveal 

purposeful discrimination. As a result, and based on the record, Makel has 

failed to demonstrate that the court erred by denying her Batson challenge 

to the State’s peremptory strike of Juror 11. 

CONCLUSION 

¶11 For the foregoing reasons, we affirm Makel’s convictions and 

sentences.