[Cite as State v. Shoffner , 2020-Ohio-4239.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. KENDALL SHOFFNER Defendant-Appellant : : : : : : : : : : Appellate Case No. 28540

Trial Court Case No. 2019-CR-1644 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 28th day of August, 2020.

. . . . . . . . . . . MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 009590 0, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 West Monument Avenue, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . . TUCKER, P.J.-2- {¶ 1} Defendant-appellant Kendall Shoffner appeals from his convictio n for gross sexual imposition and soliciting a minor. Shoffner contends th e trial court erred by failing to conduct a hearing in response to his claim that the State im properly used a peremptory challenge to remove an African-American from the jury. He furt her asserts the trial court erred by permitting the State to ask leading questions of the v ictim. For the reasons that follow, we affirm.

I. Facts and Procedural Background {¶ 2} On May 23, 2019, Shoffner was indicted on one count of gross se xual imposition in violation of R.C. 2907.05(A)(1) and one count of soliciting a minor in violation of R.C. 2907.24(A)(2). A jury trial was conducted in September 2019. At trial, the evidence established that Shoffner attended a party where 16-ye ar-old M.A. was present. The evidence showed that, during the course of the party, Shoff ner gave M.A. money in an attempt to induce her to have sex with him. When M.A. refus ed, Shoffner grabbed her hand and placed it on his erect penis. The jury found Shof fner guilty as charged, and the trial court sentenced him to 12 months in prison on eac h count, to be served concurrently. The court also classified Shoffner as a Tier I s ex offender. Shoffner appeals.

II. Batson Challenge {¶ 3} Shoffner asserts the following as his first assignment of error : THE TRIAL COURT ERRED IN OVERRULING MR. SHOFFNER’S

OBJECTION TO A PEREMPTORY CHALLENGE OF A PROPOSPECTIVE-3- [SIC] JUROR ON THE BASIS OF RACIAL DISCRIMINATION. {¶ 4} Shoffner contends the trial court erred in failing to conduct a hearing after the State improperly utilized a peremptory challenge to excuse the only African-American male on the jury panel. {¶ 5} In Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits the use of peremptory challenges to excuse a juror solely because of that juror's race. Batson established a three-step analysis for trial courts to decide claims of race-based challenges to jurors. State v. Manns , 106 Ohio App.3d 687, 2006- Ohio-5802, 864 N.E.2d 657, ¶ 30 (2d Dist.), citing Batson . First, a defendant must make a prima facie case that the challenge is racially motivated. Id. at ¶ 31. Next, if the defendant satisfies this burden, the prosecutor must provide a racially-neutral explanation for the challenge. Id. at ¶ 32. Finally, the court must decide, based on all the circumstances, whether the defendant has proved purposeful raci al discrimination. Id. at ¶ 33. In making its decision, the trial court “must conside r the circumstances of the challenge and assess the plausibility of the prosecutor's expla nation in order to determine whether it is merely pretextual.” (Citations omitted.) State v. Johnson , 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 21. “Review of a Batson claim largely hinges on issues of credibility. Accordingly, we ordinarily defer to the findings of the trial court. * * * Whether a party intended to racially discriminate in chal lenging potential jurors is a question of fact, and in the absence of clear error, we will no t reverse the trial court's determination.” (Citations omitted.) Hicks v. Westinghouse Materials Co. , 78 Ohio St.3d 95, 102, 676 N.E.2d 872 (1997).-4- {¶ 6} In this case, the State exercised a peremptory challenge agains t prospective juror A.B. The defense then stated, “We’d object from a racial standpoint, he’s the only

African American male.” 1 Tr. p. 114. The State then pointed to A.B.’s statement that he had previously been arrested for drug possession and would “ probably” have “difficulty” if a police officer testified. The State also not ed A.B.’s statements that, on a couple of occasions, he believed he had been treated unfairly b y the police, and that these encounters would cause him to have some bias against the police. Finally, the State noted A.B. claimed that, due to his religious beliefs, he would rather not judge anyone. Without any further inquiry as to whether the defense challenged the stated reasons, the court overruled the defense objection to the use o f the peremptory challenge. {¶ 7} While the trial court’s handling of this matter was arguably le ss than ideal, we disagree with Shoffner’s claim that the trial court did not con duct any hearing on his objection to the State’s exercise of the peremptory challenge. After the objection was made, the court inquired as to the State’s reasons for the pere mptory strike, and the defense made no attempt to refute the State’s race-neutral base s for the dismissal. {¶ 8} “Courts have previously recognized that the potential bias that may result from a prospective juror's or his or her family's experiences w ith the criminal justice system may be a legitimate, racially neutral reason for exercis ing a peremptory strike against the prospective juror.” (Citations omitted.) State v. May , 2015-Ohio-4275, 49 N.E.3d 736, ¶ 51 (8th Dist.). Here, the juror indicated that h e had had several encounters

1 Based upon this record, it is not clear whether this was suffic ient to raise a Batson challenge as it can be inferred from defense counsel’s statemen t that there were also African-American women on the jury panel who were not challenge d. Nonetheless, the State went on to present its basis for the challenge.-5- with law enforcement which caused him to be biased against the police. He further stated that his religious beliefs made it difficult for him to pass judgment on other individuals. A peremptory challenge based upon such reluctance is race-neutral. {¶ 9} The trial court was in the best position to weigh the credibili ty of the State's explanations in determining whether the State exercised its per emptory challenges with a discriminatory intent. Following a thorough review of the re cord, we cannot say that

the trial court's decision to allow the State to exercise this peremptory challenge was clearly erroneous. Accordingly, Shoffner’s first assignment of error is overruled.

III. Leading Questions {¶ 10} Shoffner’s second assignment of error states as follows:

THE TRIAL COURT ERRED IN ALLOWING THE STATE TO ASK

LEADING QUESTIONS ON D IRECT EXAMINATION. {¶ 11} Shoffner asserts the trial court improperly permitted the prose cutor to ask leading questions of M.A. during her direct examination. Speci fically, Shoffner objected to the following portion of the State’s direct examination of t he victim: Q: Did [Shoffner] make any comment about you guys’ relationshi p? A: No. He said one thing he said, I’m not your real uncle. T hat’s all he

said. Q: Okay. Did he ever talk to you about doing any sexual acts? Tr. p. 175-176. {¶ 12} Evid.R. 611(C) states “[l]eading questions should not be used o n the direct examination of a witness except as may be necessary to develop the witness' testimony.”-6- “The exception ‘except as may be necessary to develop [the witn ess’] testimony’ is quite broad and places the limits upon the use of leading questions o n direct examination within the sound judicial discretion of the trial court.” State v. Lewis , 4 Ohio App.3d 275, 278, 448 N.E.2d 487 (3d Dist.1982). {¶ 13} Just prior to the cited passage, the prosecutor asked M.A., “w hat happened?” M.A. testified that, during the party, she went int o the kitchen to charge her phone; Shoffner, who she knew as her “uncle,” followed her and began to make comments to her about “trying to bribe [her] to sleep with him * * *.” Tr. p. 174. She also indicated he started to “touch on my back, my lower back, just rubbing on me and kept whispering in my ear telling me how cute I am, how he want me [ sic] so bad.” Id. She had already testified that she referred to Shoffner as her “unc le,” but she did not know whether they were actually related. {¶ 14} Clearly, the questions to which Shoffner objects were merely fo llow-up questions regarding information already provided by M.A. In ot her words, regardless of whether the questions were leading, the testimony elicited ther eby had already been introduced. Thus, we cannot conclude the prosecutor improperly influenced the victim's responses, and any error in allowi ng the questions was harmless

. {¶ 15} The second assignment of error is overruled.

IV. Conclusion {¶ 16} Both of Shoffner’s assignments of error being overruled, the ju dgment of

the trial court is affirmed.

. . . . . . . . . . . . .-7-

DONOVAN, J. and WELBAUM, J., concur.

Copies sent to: Mathias H. Heck, Jr. Sarah E. Hutnik Sean Brinkman Hon. Timothy N. O’Connell