2015 UT App 88

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

ARMANDO FLORES,

Defendant and Appellant.

Amended Opinion1

No. 20120438-CA

Filed April 16, 2015

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 101908899

Joanna E. Landau, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard, Attorney for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which 

JUDGE STEPHEN L. ROTH and SENIOR JUDGE RUSSELL W. BENCH

concurred.

2

VOROS, Judge:

¶1 Armando Flores served for five years as a leader of a West 

Valley City church congregation. In 2012, he was convicted of 

 

1. This Amended Opinion replaces the Opinion in Case No. 

20120438-CA issued on September 11, 2014.

2. The Honorable Russell W. Bench, Senior Judge, sat by special 

assignment as authorized by law. See generally Utah Code Jud. 

Admin. R. 11-201(6).
State v. Flores

20120438-CA 2 2015 UT App 88

sexual battery and unlawful detention for acts committed on a 

member of his congregation. Flores appeals his convictions, 

arguing that the trial court erred by prohibiting voir dire 

questions intended to uncover potential jurors’ religious biases. 

Flores also argues that the State used its peremptory challenges 

improperly during voir dire, violating his rights under the Equal 

Protection Clause. We affirm.

BACKGROUND3

Allegations of Sexual Abuse

¶2 Armando Flores served as the branch president of a small 

LDS Church congregation in West Valley City.4In August 2009, 

Flores invited T.H., a sixteen-year-old member of his 

congregation who was also a family friend, to speak with him 

alone in his office. After their conversation, Flores grabbed her 

and ‚touched *her+ breasts.‛ At first T.H. did not tell anyone 

about the incident because she ‚didn’t think anyone would 

believe *her+.‛

 

3. ‚On appeal, we review the record facts in a light most 

favorable to the jury’s verdict and recite the facts accordingly. 

We present conflicting evidence only as necessary to understand 

issues raised on appeal.‛ State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 

346 (citations and internal quotation marks omitted).

4. A branch president oversees a small congregation of members 

of The Church of Jesus Christ of Latter-day Saints (the LDS 

Church). The LDS Church describes a branch president as ‚the 

presiding priesthood leader‛ in a branch. See The Church of 

Jesus Christ of Latter-day Saints, Branch Guidebook, at 4 (2001), 

available at https://www.lds.org/bc/content/shared/content/

english/pdf/language-materials/31179_eng.pdf.
State v. Flores

20120438-CA 3 2015 UT App 88

¶3 In December 2009, after a New Year’s Eve party, Flores 

invited T.H. into a small, dark room at the church building 

where Flores’s congregation met. Flores followed T.H. into the 

room, closed the door, and again touched her breasts. In 

addition, Flores gripped T.H.’s left arm with his right hand, and 

when he heard someone in the hall, he covered her mouth with 

his hand until the person passed. When Flores took his hand off 

T.H.’s mouth, she ran out of the room.

¶4 The State charged Flores with one count of forcible sexual 

abuse based on the August 2009 incident and a second count of 

forcible sexual abuse and one count of kidnapping based on the 

December 2009 incident. All are second-degree felonies.5 At trial, 

the court also instructed the jury on the lesser included offenses 

of sexual battery, lewdness, and unlawful detention.6

 

5. A person commits forcible sexual abuse if that person

touches the breast of a female . . . with intent to 

cause substantial emotional or bodily pain to any 

person or with the intent to arouse or gratify the 

sexual desire of any person, without the consent of 

the other.

Utah Code Ann. § 76-5-404(1) (LexisNexis 2008).

A person commits kidnapping if that person

intentionally or knowingly, without authority of 

law, and against the will of the victim . . . detains 

or restrains the victim for any substantial period of 

time . . . [or] detains or restrains a minor without 

the consent of the minor’s parent or legal guardian 

or the consent of a person acting in loco parentis, if 

the minor is 14 years of age or older but younger 

than 18 years of age . . . . 

Id. § 76-5-301.

6. A person commits sexual battery, a class A misdemeanor, 

if the person under circumstances not amounting 

to [a more serious sex crime], intentionally touches, 

(continued...)
State v. Flores

20120438-CA 4 2015 UT App 88

Voir Dire

¶5 During jury voir dire, Flores requested that the trial court 

ask the prospective jurors about their religious affiliation. When 

the judge declined, defense counsel explained that jurors’ 

religious affiliation may cause them to improperly weigh the 

testimony of certain witnesses:

[T]he reason for that request is just due to the fact 

that a number of our witnesses are LDS, two of 

them are LDS clergy, the defendant himself was 

former LDS clergy. My request is based on finding 

out the affiliation of jurors so that we could gauge 

 

(...continued)

whether or not through clothing, . . . the breast of a 

female, and the actor’s conduct is under 

circumstances the actor knows or should know will 

likely cause affront or alarm to the person touched. 

Utah Code Ann. § 76-9-702(3) (LexisNexis Supp. 2009). 

A person commits lewdness, a class B misdemeanor for 

most first-time offenders, when the person, under circumstances 

not amounting to a more serious sex crime,

performs . . . under circumstances which the 

person should know will likely cause affront or 

alarm to, on, or in the presence of another who is 

14 years of age or older . . . an act of sexual 

intercourse or sodomy . . . [or] any other act of 

lewdness.

Id. § 76-9-702(1), (2). 

A person commits unlawful detention, a class B 

misdemeanor, if the person ‚intentionally or knowingly, without 

authority of law, and against the will of the victim, detains or 

restrains the victim‛ under circumstances not amounting to a 

more serious kidnapping crime. Id. § 76-5-304(1), (3) (LexisNexis 

2008).
State v. Flores

20120438-CA 5 2015 UT App 88

whether they would be impacted by the testimony, 

have any prejudices or preconceived notions based 

on that fact.

Though the trial court refused to ask prospective jurors about 

their religious affiliations, it did ask a question designed to test 

their ability to properly weigh testimony by religious leaders:

[Y]ou need to judge the credibility of a clergy 

member or religious leader the same way that you 

would judge any other witness regardless of that 

person’s position in the community. The question 

is, do any of you feel that you would be unable to 

follow that direction . . . and not be able to sit as a 

fair and impartial juror in this case?

No prospective jurors indicated that they would be unable to 

properly judge the credibility of a church leader serving as a 

witness.

Peremptory Strikes

¶6 The State used all four of its peremptory strikes against 

male potential jurors. Flores challenged the State’s strikes under 

Batson v. Kentucky, arguing that the State’s use of peremptory 

strikes violated the Equal Protection Clause. See 476 U.S. 79 

(1986). The trial court invited the prosecutor to ‚articulate on the 

record *her+ reasons‛ for each of her four strikes. The prosecutor 

explained that she struck the first potential juror because she 

feared his participation would create a basis for appeal, the 

second potential juror because of his age and lack of ‚life 

experience,‛ the third potential juror because of a ‚domestic 

violence history,‛ and the fourth potential juror because he 

seemed ‚offput‛ by the case.

¶7 Flores conceded that the State articulated a viable reason 

for excluding the first potential juror, but he argued that the 

State’s justifications for the other strikes did not constitute 

satisfactory nondiscriminatory explanations. However, the trial 
State v. Flores

20120438-CA 6 2015 UT App 88

court found that the State had ‚articulated *a+ legitimate basis for 

the reasons for *its+ strikes‛ and thus denied Flores’s Batson

challenge. The jury consisted of five men and three women.

¶8 At trial, both parties called witnesses who were members 

of the LDS Church. T.H.’s parents, both LDS, testified for the 

prosecution. Flores’s witnesses included the stake president who 

oversaw Flores’s service as branch president, the branch 

president who replaced Flores, a young-women’s leader from 

his branch, and Flores himself.

¶9 The jury acquitted Flores of the charged felonies, each of 

which carried a prison term of one-to-fifteen years. Instead, the 

jury convicted him of two lesser included misdemeanors: one 

count of forcible sexual abuse and one count of unlawful 

detention, carrying jail terms of zero-to-one year and zero-to-six 

months, respectively.

ISSUES ON APPEAL

¶10 Flores first contends that the trial court erred by 

preventing him from questioning the jurors at voir dire about 

their religious beliefs.

¶11 Second, Flores contends that the trial court erred in 

denying his Batson challenge.

¶12 Finally, Flores contends that, taken together, the voir dire 

restrictions and Batson determination constitute cumulative 

error, undermining confidence in the verdict.

ANALYSIS

I. Voir Dire

¶13 Flores contends that ‚the trial court abused its discretion 

in restricting voir dire on LDS religious affiliation and related 
State v. Flores

20120438-CA 7 2015 UT App 88

bias.‛ The jurors’ ‚religion was relevant,‛ Flores argues, because 

Flores was a former LDS branch president, the victim was a 

former member of his branch, seven of the ten trial witnesses 

testified to their LDS religious affiliation, and all of the alleged 

acts transpired in an LDS Church building. In response, the State 

argues that ‚religion was not particularly relevant in this case‛ 

and that, ‚even if it were, it would not have created bias in favor 

of one side over the other.‛7

¶14 The Utah Constitution guarantees that no person 

‚shall . . . be incompetent as a . . . juror on account of religious 

belief or the absence thereof.‛ Utah Const. art. I, § 4; see also Utah 

Code Ann. § 78B-1-103(2) (LexisNexis 2008) (‚A qualified citizen 

may not be excluded from jury service on account 

of . . . religion . . . .‛). But juror competence and juror bias are 

separate considerations. Therefore, while ‚it is ordinarily 

inappropriate to inquire into venire members’ religious beliefs 

during voir dire,‛ inquiries into religion may be appropriate 

when the case presents ‚the possibility of actual bias stemming 

from religious beliefs.‛ Depew v. Sullivan, 2003 UT App 152, ¶ 13, 

71 P.3d 601; see also, e.g., State v. Ball, 685 P.2d 1055, 1060 (Utah 

1984) (holding that asking a potential juror whether ‚his 

abstention from the drinking of alcohol has a religious basis is 

not prohibited by the Utah constitution‛).

¶15 Voir dire examination serves two purposes: ‚the detection 

of actual bias . . . and the collection of data to permit informed 

exercise of the peremptory challenge.‛ State v. Piansiaksone, 954 

P.2d 861, 867 (Utah 1998) (citation and internal quotation marks 

omitted). ‚*T+he obligation to impanel an impartial jury lies in 

the first instance‛ with trial judges, who ‚must rely largely‛ on 

their ‚immediate perceptions.‛ Rosales-Lopez v. United States, 451 

 

7. Flores also contends that if we reject this claim as unpreserved, 

his trial counsel was ineffective for failing to preserve it. Because 

we address the claim on its merits, we need not address the 

alternative ineffectiveness claim.
State v. Flores

20120438-CA 8 2015 UT App 88

U.S. 182, 189 (1981). Appellate courts therefore typically accord 

trial courts ‚ample discretion in determining how best to 

conduct‛ voir dire. Id.; see also Taylor v. State, 2007 UT 12, ¶ 70, 

156 P.3d 739. ‚*T+rial judges are not compelled to permit every

question that . . . might disclose some basis for counsel to favor 

or disfavor seating a particular juror.‛ Piansiaksone, 954 P.2d at 

868. But ‚trial courts should be permissive in allowing voir dire 

questions and should exercise their discretion in favor of 

allowing counsel to elicit information from prospective jurors.‛ 

Id.

¶16 The nature of the voir dire questioning determines the 

scope of the trial court’s discretion. ‚That discretion is strictly 

limited where the questions are directly related to bias and 

prejudice, but increases as the directness of that relation 

decreases or, in some instances, where the question unduly 

intrudes upon the privacy of the jurors.‛ Id. Thus, questions that 

‚directly search for questionable attitudes among jurors deserve 

more favorable treatment by trial courts.‛ Piansiaksone, 954 P.2d 

at 868. Moreover, a trial court’s ‚failure to ask questions in a 

particular manner‛ does not constitute error as long as the trial 

court’s substitute questions covered ‚the relevant subject area of 

potential bias.‛ Id. at 867.

¶17 Here, Flores urged the trial court to ask the jurors to state 

‚their individual religious affiliation.‛ Defense counsel 

explained,

‚*A+ number of our witnesses are LDS, two of them 

are LDS clergy, [and] the defendant himself was 

former LDS clergy. My request is based on finding 

out the affiliation of jurors so that we could gauge 

whether they would be impacted by the testimony, 

have any prejudices or preconceived notions based 

on that fact.‛

The trial court denied this request and instead asked the entire 

panel a question targeting impartiality: whether the panel 

members could ‚judge the credibility of a clergy member or 
State v. Flores

20120438-CA 9 2015 UT App 88

religious leader the same way that [they] would judge any other 

witness.‛

¶18 We conclude that the question requested by defense 

counsel was ‚not phrased in a manner calculated to uncover 

potential bias pertinent to the facts of this case.‛ State v. Burke, 

2011 UT App 168, ¶ 74, 256 P.3d 1102. It was, rather, one that 

would ‚require multiple inferential steps or follow-up questions 

to elucidate real or possible bias.‛ Piansiaksone, 954 P.2d at 868. 

While the proposed question ‚may have eventually led to 

indications‛ of religious bias, it ‚would have required several 

additional questions or inferences before reaching even an 

indication of latent bias.‛ Id.

¶19 We understand that the events of this case took place 

within a church context. Many of the trial witnesses were 

members or leaders of the LDS Church. Flores and the victim 

met because they were members of the same LDS branch. Both 

sides planned to call LDS Church members as witnesses—in fact, 

the defense called three LDS Church leaders (in addition to 

Flores himself) as witnesses. On these facts, the religious 

affiliation of a juror without more does not indicate bias. As the 

State argues, ‚*e+ven assuming that a juror who belonged to the 

LDS Church might favor her fellow members, knowing that the 

juror was LDS would not have indicated whether that juror 

would be more likely to favor the prosecution’s LDS witnesses 

or the defense’s.‛

¶20 Flores argues that ‚if a juror was agnostic or atheist, 

Flores might have followed up about bias against organized 

religion that might make the juror discredit the testimony of 

clergy or religious witnesses.‛ But this argument reveals that the 

requested voir dire question was one that would ‚require 

multiple inferential steps or follow-up questions to elucidate real 

or possible bias.‛ State v. Piansiaksone, 954 P.2d 861, 868 (Utah 

1998).

¶21 As noted above, a trial court’s discretion ‚increases as the 

directness of [the relationship between the question and bias] 
State v. Flores

20120438-CA 10 2015 UT App 88

decreases or, in some instances, where the question unduly 

intrudes upon the privacy of the jurors.‛ Id. Here, the proposed 

question was not directly related to bias and had some potential 

to intrude upon the privacy of the potential jurors. Moreover, 

while declining to ask each panel member’s religious affiliation, 

the trial court did ask a general question targeting their attitudes 

toward clergy. Accordingly, we hold that the trial court did not 

exceed its discretion in refusing to ask the proposed question.

II. Batson Challenge

¶22 Flores next contends that the trial court erred in denying 

his Batson challenge, because the State’s peremptory strikes were 

motivated by purposeful gender-based discrimination. In 

response, the State contends that Flores ‚has not shown that the 

prosecutor’s explanations for her strikes were gender-based.‛

¶23 ‚The harm from discriminatory jury selection extends 

beyond that inflicted on the defendant and the excluded juror to 

touch the entire community.‛ Batson v. Kentucky, 476 U.S. 79, 87 

(1986). Discriminatory selection procedures ‚undermine public 

confidence in the fairness of our system of justice‛ and act as ‚a 

stimulant‛ to prejudices that impede the ‚equal justice which the 

law aims to secure.‛ Id. at 87–88 (citation and internal quotation 

marks omitted). Batson itself applied only to race-based 

discrimination in criminal trials. But in 1991 the United States 

Supreme Court extended its reach to civil proceedings, Edmonson 

v. Leesville Concrete Co., 500 U.S. 614, 631 (1991), and in 1994 the 

Court extended Batson to gender-based discrimination, J.E.B. v. 

Alabama ex rel. T.B., 511 U.S. 127, 128–29 (1994).

¶24 Batson aims to produce ‚actual answers to suspicions and 

inferences that discrimination may have infected the jury 

selection process.‛ Johnson v. California, 545 U.S. 162, 172 (2005). 

In pursuit of those answers, a defendant may rely on the 

prosecutor’s exercise of peremptory challenges against members 

of the protected groups to support a claim of purposeful 

discrimination. Batson, 476 U.S. at 96. To test a defendant’s 

Batson claim, the trial court must oversee a three-stage process.
State v. Flores

20120438-CA 11 2015 UT App 88

In the first stage, ‚a defendant must make a prima facie showing 

that a peremptory challenge has been exercised‛ on an 

impermissible basis, such as race or gender. Miller-El v. Cockrell, 

537 U.S. 322, 328 (2003). The ‚pattern of strikes‛ might be 

enough to make this prima facie showing, as might ‚a 

prosecutor’s comments and statements.‛ United States v. Johnson, 

No. 12-3229, 2014 WL 2854996, at *3 (7th Cir. June 24, 2014).

¶25 In the second stage, the prosecution must offer a 

legitimate—in this case gender-neutral—basis for striking the 

juror in question. See Cockrell, 537 U.S. at 328. ‚*T+he prosecutor 

must give a clear and reasonably specific explanation of his 

legitimate reasons for exercising *the+ challenges.‛ Batson, 476 

U.S. at 98 n.20 (citation and internal quotation marks omitted). 

But while a ‚Batson challenge does not call for a mere exercise in 

thinking up any rational basis,‛ Miller-El v. Dretke, 545 U.S. 231, 

252 (2005), the prosecutor’s gender-neutral explanation need not 

be ‚persuasive, or even plausible,‛ Purkett v. Elem, 514 U.S. 765, 

768 (1995) (per curiam).

¶26 In the third stage, ‚the trial court must determine whether 

the defendant has shown purposeful discrimination.‛ Cockrell, 

537 U.S. at 328–29. To do so, the trial court assesses whether the 

contested strikes were ‚motivated in substantial part by 

discriminatory intent.‛ Snyder v. Louisiana, 552 U.S. 472, 485 

(2008). ‚*I+mplausible or fantastic justifications may (and 

probably will) be found to be pretexts for purposeful 

discrimination.‛ Purkett, 514 U.S. at 768. While the third stage 

requires the trial court to evaluate the credibility of the 

prosecutor’s justification, ‚the ultimate burden of persuasion 

regarding [discriminatory] motivation rests with, and never 

shifts from, the opponent of the strike.‛ Id.

¶27 Though the justifications provided in Batson’s second 

stage inform the trial court’s determination in the third, the two 

stages must be kept distinct. The prosecutor’s ability to articulate 

a neutral basis for a peremptory challenge does not guarantee 

third-stage vindication. ‚When there is reason to believe that 

there is a racial motivation for [a] challenge, neither the trial 
State v. Flores

20120438-CA 12 2015 UT App 88

courts nor [the appellate courts] are bound to accept at face 

value a list of neutral reasons that are either unsupported in the 

record or refuted by it.‛ Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th 

Cir. 1993). Conversely, the prosecutor’s inability to articulate a 

logical basis for a peremptory challenge does not doom the 

prosecutor to a finding of purposeful discrimination. As the 

Ninth Circuit Court of Appeals explained, ‚*A prosecutor’s+ 

reasons may not be logical, but that’s what peremptory 

challenges are all about. They are often founded on nothing 

more than a trial lawyer’s instinct about a prospective juror.‛ 

United States v. Thompson, 827 F.2d 1254, 1260 (9th Cir. 1987). So 

although ‚it can sometimes be hard to say what the reason *for 

exercising a peremptory challenge+ is,‛ once a defendant alleges 

purposeful discrimination, prosecutors must ‚simply . . . state 

[those] reasons as best [they] can and stand or fall on the 

plausibility of the reasons *given+.‛ Dretke, 545 U.S. at 252.

¶28 Proving purposeful discrimination under Batson presents 

a formidable enough task in the trial court. But once a trial court 

has stamped its approval on a prosecutor’s peremptory 

challenges, mounting a successful Batson challenge on appeal 

verges on the impossible.8 The reason lies in the standard of 

 

8. The United States Supreme Court ‚consistently and repeatedly 

has reaffirmed that racial discrimination by the State in jury 

selection offends the Equal Protection Clause.‛ Miller-El v. 

Dretke, 545 U.S. 231, 238 (2005). But the Court has also 

recognized ‚the practical difficulty of ferreting out 

discrimination in selections discretionary by nature.‛ Id.

Batson’s critics bemoan the toothlessness of the system the 

Court has devised to combat discrimination in jury selection. 

One observed that our ‚current framework makes it exceedingly 

difficult for judges to reject even the most spurious of 

peremptory strikes.‛ Jeffrey Bellin & Junichi P. Semitsu, 

Widening Batson’s Net to Ensnare More Than the Unapologetically 

Bigoted or Painfully Unimaginative Attorney, 96 Cornell L. Rev. 

1075, 1077 (2011). Another noted that Purkett v. Elem allows 

(continued...)
State v. Flores

20120438-CA 13 2015 UT App 88

review: a trial court’s Batson determination rests on factual 

findings that ‚largely . . . turn on evaluation of credibility,‛ and 

we give those findings ‚great deference.‛ Batson, 476 U.S. at 98 

n.21. Accordingly, we will not set aside a trial court’s 

determination regarding discrimination during jury selection 

absent clear error. State v. Higginbotham, 917 P.2d 545, 548 (Utah 

1996).

¶29 The prosecutor here used her four peremptory strikes to 

remove four men from the jury pool. For the purposes of this 

opinion, we refer to them as Jurors 1, 2, 3, and 4. Because the 

‚exclusion of even one juror for impermissible reasons harms 

that juror and undermines public confidence in the fairness of 

the system,‛ we examine each strike individually. See J.E.B. v. 

Alabama ex rel. T.B., 511 U.S. 127, 142 n.13 (1994).

A. Waiver of Challenge to Juror 1

¶30 Flores waived his Batson challenge to Juror 1 below. 

Before his Batson challenge, Flores had moved unsuccessfully to 

exclude Juror 1 for cause. The prosecutor struck Juror 1 to 

foreclose an appellate challenge: ‚If it turns out defense counsel 

is forced to use a peremptory strike to excuse someone who . . . 

should have been excused for cause, that’s a basis for an appeal.‛ 

Defense counsel responded, ‚I understand that there’s a 

rationale for *the prosecutor’s striking Juror 1+.‛

¶31 Failure to pursue a Batson objection after opposing 

counsel has ‚offered a legitimate, nondiscriminatory 

explanation‛ waives the Batson challenge to the strike in 

 

(...continued)

prosecutors to ‚offer any reason at all‛ for exercising a 

peremptory strike, ‚no matter how ‘silly or superstitious’—as 

long as it is race neutral.‛ Nancy S. Marder, Batson Revisited, 97 

Iowa L. Rev. 1585, 1593 (2012) (quoting Purkett v. Elem, 514 U.S. 

765, 768 (1995) (per curiam)).
State v. Flores

20120438-CA 14 2015 UT App 88

question. Davis v. Baltimore Gas & Elec. Co., 160 F.3d 1023, 1027–

28 (4th Cir. 1998); accord Hopson v. Fredricksen, 961 F.2d 1374, 

1376–77 (8th Cir. 1992); United States v. Rudas, 905 F.2d 38, 39 (2d 

Cir. 1990). That happened here. We therefore conclude that 

Flores waived his Batson challenge to the prosecution’s strike of 

Juror 1.

B. The Three Remaining Strikes

¶32 After guiding the parties through the first two Batson 

stages, the trial court found that the State had ‚articulated *a+ 

legitimate basis for the reasons for their strikes,‛ then denied 

Flores’s Batson challenge. The trial court implied the 

intermediary steps: that Flores failed to demonstrate a 

discriminatory motive and thus failed to carry his ‚ultimate 

burden of persuasion.‛ See Purkett v. Elem, 514 U.S. 765, 768 

(1995) (per curiam). We ask only whether the trial court clearly 

erred by finding that Flores failed to demonstrate a 

discriminatory motive for any of the three remaining strikes. 

Higginbotham, 917 P.2d at 548.

1. Juror 2

¶33 The prosecutor struck Juror 2 as young and 

inexperienced. She explained that other jurors had ‚had more 

extensive involvement in family and career.‛ Juror 2, by 

comparison, seemed to be ‚someone who wouldn’t bring a lot of 

experience.‛ Flores argued during jury selection and again on 

appeal that Utah Code section 78B-1-103(2) prohibits excluding 

citizens from jury service on account of age. Flores also argues 

that ‚the prosecutor proffered no explanation why youth or 

inexperience in family or career were relevant to this case.‛

¶34 Both arguments fail. Utah Code section 78B-1-103 

prohibits excluding qualified citizens from jury service based on 

age. But it does not guarantee that a qualified panel member will 

survive voir dire, which subjects each potential juror to strikes 

for cause and peremptory strikes. And though Batson forbids 

parties from basing peremptory strikes on race or gender, it 
State v. Flores

20120438-CA 15 2015 UT App 88

offers potential jurors no protection from peremptory strikes 

based on age.

¶35 Further, despite defense protestations, the prosecutor was 

not obliged to explain ‚why youth or inexperience in family or 

career were relevant to this case.‛ Though Batson’s second step 

requires prosecutors to provide a ‚legitimate reason‛ for each 

challenged strike, ‚*w+hat *Batson+ means by a ‘legitimate reason’ 

is not a reason that makes sense, but a reason that does not deny 

equal protection.‛ Purkett, 514 U.S. at 769. Even if we agreed that 

striking Juror 2 based on his age and experience ‚made no 

sense,‛ the prosecutor’s reason qualified as legitimate because it 

did not deny equal protection. The trial court considered Flores’s 

evidence of discrimination and the State’s proffered explanation, 

then found the State’s motives legitimate. That finding does not 

constitute clear error. We therefore affirm the trial court’s 

decision with respect to the prosecution’s strike of Juror 2.

2. Juror 3

¶36 The prosecutor struck Juror 3 because ‚he was involved 

in a protective order hearing a couple of years ago‛ and a 

‚domestic violence history‛ was not part of ‚the makeup‛ she 

sought in potential jurors. During jury selection, Flores argued 

that the prosecutor’s reason for striking Juror 3 was pretextual. 

On appeal, Flores argues that under State v. Jensen, peremptory 

strikes based on a potential juror’s past involvement with 

protective orders are gender-based and thus discriminatory. See

2003 UT App 273, 76 P.3d 188.

¶37 During voir dire, the trial court asked the potential jurors 

if they had ‚ever been called to testify as a witness in a civil or 

criminal case.‛ Juror 3 raised his hand and stated that he had 

been called as a witness in a civil protective-order case several 

years before.

¶38 Though the mention of a protective order during voir dire 

superficially links the present case to Jensen, Jensen differs from 

this case in a critical way. In Jensen, the prosecutor struck three 
State v. Flores

20120438-CA 16 2015 UT App 88

men from the venire. Id. ¶ 2. During voir dire, each man had 

mentioned past involvement with protective-order cases. Id. The 

prosecutor referred to that involvement in explaining her 

decision to strike the men. Id. She continued, ‚*L+ogically I 

assumed that usually [men involved in protective-order cases] 

would be on defendant’s side,‛ because men were ‚more than 

likely‛ the respondents in protective-order cases. Id. The trial 

court found the prosecutor’s explanation gender-neutral and 

denied Jensen’s Batson challenge. Id. But this court reversed, 

concluding ‚as a matter of law that the prosecution did not 

provide a gender-neutral explanation for the two strikes in 

question.‛ Id. ¶ 15. We emphasized that the prosecutor’s 

explanation relied on a gender stereotype: men are more likely 

than women to be respondents in protective-order cases because, 

presumably, men are more prone to commit domestic violence. 

Id. ¶ 16. We concluded that ‚any use of gender in the jury 

selection process‛ violates the equal protection clause. Id. ¶¶ 16–

17.

¶39 Though the prosecutor here explained that she sought to 

exclude jurors who had been ‚involved in a protective-order 

hearing,‛ she did not link involvement with protective-order 

cases to Juror 3’s gender. During voir dire, Juror 3 stated only 

that he had served as a witness in a protective-order case. Unlike 

the prosecutor in Jensen, the prosecutor here expressed no 

further assumptions about Juror 3’s role in the protective-order 

case based on his gender.

¶40 The relationship between a juror’s involvement in a 

protective-order hearing and the issues in this case remains 

unclear: as the prosecutor acknowledged, ‚domestic violence 

would not have been *at issue+ in this case.‛ But as we explained 

above, Batson’s second step does not require a reason that makes 

sense. It requires only ‚a reason that does not deny equal 

protection.‛ Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam). 

Unlike the prosecutor in Jensen, the prosecutor here did not link 

protective orders and gender. Her reason thus did not deny 

Juror 3 equal protection of the law. The trial court therefore did 

not clearly err by finding the State’s reasoning legitimate. 
State v. Flores

20120438-CA 17 2015 UT App 88

Accordingly, we affirm the trial court’s decision with respect to 

the prosecution’s strike of Juror 3.9

3. Juror 4

¶41 The prosecutor struck Juror 4 because she felt ‚there was 

something unsettling for him about being‛ a juror in Flores’s 

case. She acknowledged that she did not know ‚if it was the 

particular subject matter‛ that appeared to trouble Juror 4 ‚or 

just being *in court+ as a juror altogether.‛ The prosecutor 

seemed to base her concerns on Juror 4’s expressions or 

demeanor: ‚I have been watching the faces of the jurors during 

jury selection and I don’t pretend to be able to accurately read 

faces but just the expression that I’ve seen on him, I was 

concerned about his level of—felt that he was somewhat offput 

by the case.‛ After Flores argued that her rationale ‚could be 

said in every single case with respect to every single juror,‛ the 

prosecutor countered, ‚This is jury selection. We have 

peremptories for a reason and sometimes I do get to just react on 

my gut level to a potential juror.‛

¶42 Flores may well be correct about the prosecutor’s 

explanation for striking Juror 4—the explanation could feasibly 

be used ‚in every single case with respect to every single juror.‛ 

But that objection runs to Batson, not to the trial court’s ruling 

here. And despite the fears Flores expresses, we disagree that 

‚there would never be a remedy under Batson‛ if a fungible 

 

9. Flores further argues that the prosecutor’s reason for striking 

Juror 3 was pretextual, as evidenced by the prosecutor’s failure 

to strike a female juror ‚with actual domestic violence 

experience.‛ But the trial court was in the best position to gauge 

whether the reason was pretextual, and the court found no 

pretext. We defer to that judgment unless the pretext is clear. 

State v. Higginbotham, 917 P.2d 545, 548 (Utah 1996). That the 

prosecutor failed to strike a female juror who shared this one 

characteristic does not make the pretext clear.
State v. Flores

20120438-CA 18 2015 UT App 88

subjective explanation allows the prosecutor to pass through 

Batson’s second stage.

¶43 In practice, a prosecutor’s vague explanation will in some 

cases overcome a Batson challenge. In other cases, it will not. The 

outcome depends on whether the evidence provided by the 

Batson challenger in stage one, weighed in context against the 

prosecutor’s explanation in stage two, convinces the trial court 

that the prosecutor’s strikes were based on purposeful 

discrimination. See Snyder v. Louisiana, 552 U.S. 472, 485 (2008). 

Unless the prosecutor expressly acknowledges basing her strike 

on race or gender, no stage-two rationale necessarily dooms the 

prosecutor to stage-three defeat. As the United States Supreme 

Court explained in Miller-El v. Dretke, ‚peremptories are often 

the subjects of instinct, and it can sometimes be hard to say what 

the reason *for exercising a peremptory+ is.‛ 545 U.S. 231, 252 

(2005). If a prosecutor chooses to base a peremptory challenge on 

subjective factors, she will ‚stand or fall on the plausibility of the 

reasons‛ given. Id.

¶44 Because trial courts view ‚strikes made solely on ‘gut 

instinct’ or the demeanor of a juror . . . more suspiciously,‛ those 

courts are more likely to reject such a vague explanation for a 

strike. See State v. Rosa-Re, 2008 UT App 472, ¶ 8 n.3, 200 P.3d 

670. But the task of gauging the plausibility of a prosecutor’s 

explanation falls primarily on the trial court. Appellate courts 

may on occasion conclude as a matter of law that a prosecutor 

did not provide a gender-neutral explanation in the second 

Batson stage. See State v. Jensen, 2003 UT App 273, ¶ 15, 76 P.3d 

188. Or appellate courts may conclude that the proffered 

nondiscriminatory reasons for a strike ‚are so far at odds with 

the evidence that pretext is the fair conclusion.‛ See Dretke, 545 

U.S. at 234. But because a Batson determination turns largely on 

the evaluation of credibility, we accord the trial court’s Batson

findings ‚great deference.‛ Batson v. Kentucky, 476 U.S. 79, 98 

n.21 (1986).

¶45 Here, though the prosecutor relied in part on her gut 

reaction to justify striking Juror 4, her rationale did not deny 
State v. Flores

20120438-CA 19 2015 UT App 88

Juror 4 equal protection and is not ‚so far at odds with the 

evidence that pretext is the fair conclusion.‛ See Dretke, 545 U.S. 

at 234. We therefore defer to the trial court’s assessment of the 

prosecutor’s credibility and its conclusion that Flores failed to 

meet his ‚ultimate burden of persuasion regarding 

*discriminatory+ motivation.‛ See Purkett, 514 U.S. at 768. We 

thus affirm the trial court’s decision with respect to the 

prosecution’s strike of Juror 4.

III. Cumulative Error

¶46 Finally, Flores contends that the trial court’s alleged errors 

during jury selection undermine confidence in the verdict and 

thus constitute cumulative error. We will reverse under the 

cumulative-error doctrine only if the cumulative effect of several 

errors undermines our confidence that a fair trial was had. State 

v. Dunn, 850 P.2d 1201, 1229 (Utah 1993). But the cumulativeerror doctrine cannot be applied here. Flores ‚has failed to show 

that any of the trial court’s actions amount to error,‛ much less 

that the cumulative effect of any errors should undermine our 

confidence in the verdict. See State v. Killpack, 2008 UT 49, ¶ 56, 

191 P.3d 17.

CONCLUSION

¶47 The trial court’s decision to limit Flores’s religiousaffiliation voir dire questioning does not constitute an abuse of 

discretion. And the trial court did not clearly err in denying the 

Batson challenge. We therefore affirm.

ON PETITION FOR REHEARING

¶48 After issuance of our opinion in this case, Flores filed a 

petition for rehearing raising two issues. We deny the petition 

for rehearing for reasons explained below.
State v. Flores

20120438-CA 20 2015 UT App 88

¶49 First, the Petition for Rehearing asserts that our opinion 

impermissibly relies on ‚semantics.‛ We do not believe it does. 

We can only review the trial court’s refusal to ask the question 

Flores requested. And although the trial court invited Flores to 

‚be more detailed about the specific question,‛ Flores repeated 

that he wanted the trial court to ask prospective jurors’ 

‚religious affiliation.‛ The trial court declined to ask the 

question, perhaps because the question seemed to approach the 

prohibition contained in article I, section 4 of our constitution, or

perhaps because defense counsel himself stated that a Utah 

statute ‚does prohibit strikes based on religious affiliation.‛ See 

Utah Code Ann. § 78B-1-103(2) (LexisNexis 2008) (‚A qualified 

citizen may not be excluded from jury service on account 

of . . . religion . . . .‛).

¶50 In any event, the trial court explored Flores’s expressed 

concern—one shared by the prosecution—that jurors might give 

more or less weight to the testimony of LDS clergy members:

Also, there will be, it’s anticipated that there 

are going to be members of religious organizations 

or clergy, religious leaders who are testifying at 

this trial. I previously have given you an 

instruction that you should judge the credibility of 

witnesses of law enforcement the same way that 

you would weigh the testimony of any other 

witnesses regardless of their job or position in the 

community. The same question applies with 

respect to clergy or other religious leaders. Do you 

need—you need to judge the credibility of a clergy 

member or religious leader the same way that you 

would judge any other witness regardless that 

person’s position in the community. The question 

is, do any of you feel that you would be unable to 

follow that direction as it relates to religious 

leaders or clergy and not be able to sit as a fair and 

impartial juror in this case? If so, please raise your 

hand.
State v. Flores

20120438-CA 21 2015 UT App 88

We do not agree that the trial court’s inquiry amounted to 

nothing more than the ‚stark little exercise‛ condemned in State 

v. Saunders, 1999 UT 59, ¶ 34, 992 P.2d 951.10 Flores contends that 

in not asking prospective jurors their religious affiliation the trial 

court abused its discretion. ‚An abuse of discretion occurs if the 

. . . court’s actions are inherently unfair or if we conclude that no 

reasonable [person] would take the view adopted by the . . . 

court.‛ State v. Arguelles, 2003 UT 1, ¶ 101, 63 P.3d 731 (alteration 

in original) (citations and internal quotation marks omitted).

Under this standard, and on the record before us, we cannot 

agree that the trial court abused its discretion.

¶51 The Petition for Rehearing also takes issue with our 

statement that ‚mounting a successful Batson challenge on 

appeal verges on the impossible.‛ Supra ¶ 28. Flores does not 

contend that the opinion misstates the principles to be applied in 

a Batson case in Utah, nor does it. Nor does our characterization

suggest that appellate Batson challenges never succeed. 

Obviously, they sometimes do. See, e.g., Miller-El v. Dretke, 545 

U.S. 231, 266 (2005); State v. Valdez, 2004 UT App 214, ¶ 30, 95 

P.3d 291, rev’d on other grounds, 2006 UT 39, 140 P.3d 1219.

Finally, to the extent Flores seeks to distinguish Utah law from 

federal law on this question, we see no basis for the distinction

here. Flores’s appeal alleges a Batson violation, not a violation of 

the Utah Constitution separate from Batson, J.E.B., and their 

progeny. No state constitutional claim was before us on this 

appeal. See State v. Worwood, 2007 UT 47, ¶ 19, 164 P.3d 397.

¶52 The petition for rehearing is accordingly denied.

____________

 

10. ‚Although the lead opinion in State v. Saunders, 1999 UT 59, 

992 P.2d 951, is a plurality opinion, a reading of all the justices’ 

opinions in that case reveals that we cite herein only to portions 

of the lead opinion that enjoyed majority support.‛ Depew v. 

Sullivan, 2003 UT App 152, ¶ 11 n.3, 71 P.3d 601.