[Cite as State v. Stalder, 2022-Ohio-1386.]

COURT OF APPEALS

FAIRFIELD COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

: Hon. Earle E. Wise, Jr., P.J.

 Plaintiff-Appellee : Hon. John W. Wise, J.

: Hon. Craig R. Baldwin, J.

-vs- :

:

GLEN STALDER : Case No. 21-CA-26

:

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Municipal Court, 

Case No. 21-CRB-186

JUDGMENT: Reversed, Vacated, and Remanded

DATE OF JUDGMENT: April 26, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSEPH M SABO ANDREW R. SANDERSON

136 West Main Street 738 East Main Street

P.O. Box 1008 Lancaster, OH 43130

Lancaster, OH 43130
Fairfield County, Case No. 21-CA-26 2

Wise, Earle, P.J.

{¶ 1} Defendant-Appellant Glen Stalder appeals the August 20, 2021 judgment 

of the Fairfield County Municipal Court finding him guilty of sexual imposition, a 

misdemeanor of the third degree. Plaintiff-Appellee is the state of Ohio.

Facts and Procedural History

{¶ 2} On February 21, 2021, 26-year-old J.R. was working at the Amanda 

Carryout where appellant was a regular customer. Appellant arrived at the store at 7:00 

a.m., that day, got coffee and hung around for approximately two hours. During that time 

he was in and out of the store, going outside to talk to other people who were hanging 

around and then going back into the store to talk to J.R.

{¶ 3} During that time appellant made J.R. uncomfortable by staring at her, licking 

his lips, and making moaning sounds. He told J.R. that a girl like her probably would not 

be into a guy like him. When appellant continued to loiter inside the store, J.R. busied 

herself stocking items in hopes appellant would leave the store. At a later point appellant 

blocked J.R.'s only path back to the register and motioned that he wanted a hug. J.R. 

complied, but instead of just giving J.R. a hug, appellant grabbed J.R.'s buttocks over her 

clothing, then let go and grabbed J.R.'s crotch over her clothing. Appellant was later 

charged with one count of sexual imposition pursuant to R.C. 2907.06(A)(1).

{¶ 4} Appellant pled not guilty and opted to proceed to a jury trial which took place 

on July 29, 2021. During jury selection counsel for appellant advanced a Batson objection 

to the state's use of two peremptory challenges to remove prospective male jurors. The 

trial court found Batson inapplicable to gender and overruled the objections. At the 
Fairfield County, Case No. 21-CA-26 3

conclusion of evidence, the jury found appellant guilty. He was sentenced to 7 days in 

jail, a $500 fine, and a period of community control.

{¶ 5} Appellant filed an appeal and the matter is now before this court for 

consideration. He raises three assignments of error for our consideration as follow:

I

{¶ 6} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING THE 

DEFENDANT-APPELLANT'S REQUEST TO PRESENT EXCULPATORY EVIDENCE."

II

{¶ 7} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN PERMITTING 

THE INTRODUCTION OF CERTAIN EVIDENCE IN THE PROSECUTION OF THE 

CASE BELOW."

III

{¶ 8} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN SUMMARILY 

DENYING THE "BATSON" CHALLENGE RAISED BY THE DEFENDANT."

III

{¶ 9} We will address the third assignment of error which we find dispositive. In 

his third assignment of error, appellant argues the trial court committed error in denying 

his objections to state's gender-based peremptory challenges. We agree.

Applicable Law

{¶ 10} The Equal Protection Clause of the United States Constitution prohibits 

purposeful discrimination in the exercise of a peremptory challenge to excuse a juror on 

account of their race or gender. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 

1719, 90 L.Ed.2d 69 (1986); State v. Hernandez, 63 Ohio St.3d 577, 581, 589 N.E.2d 
Fairfield County, Case No. 21-CA-26 4

1310, 1313, (1992) certiorari denied (1992), 506 U.S. 898, 113 S.Ct. 279, 121 L.Ed.2d 

206; J.E.B., Petitioner v. Alabama ex rel. T.B, 511 U.S. 127, 129, 114 S.Ct. 1419, 128 

L.Ed2d 89 (1994) (Batson extended to include gender.)

{¶ 11} The United States Supreme Court has set forth a three-step procedure for 

evaluating a claim that a peremptory challenge is motivated by racial or gender 

discrimination. First, the party opposing the peremptory challenge must establish a prima 

facie case of purposeful discrimination in the exercise of the challenge. If a prima facie 

case has been established, the burden of production then shifts to the proponent of the 

challenge to tender a race or gender-neutral explanation. The trial court must then 

determine whether the challenge's opponent has carried its ultimate burden of proving 

purposeful discrimination. See Hernandez v. New York, 500 U.S. 352, 358-359, 111 S.Ct. 

1859, 1866-1867, 114 L.Ed.2d 395 (1991); State v. Hernandez, 63 Ohio St.3d 577, 581-

582, 589 N.E.2d at 1313 (citing Batson, supra at 96-98, 106 S.Ct. at 1723-1724); State v. 

Walker, 139 Ohio App.3d 52, 742 N.E.2d 1173 (2000). A determination that the 

challenge's opponent has failed to prove purposeful discrimination will not be reversed 

on appeal unless that determination can be said to have been "clearly erroneous." State 

v. Hernandez, supra at 582-583, 589 N.E.2d at 1313-1314 (quoting Hernandez v. New 

York, 500 U.S. 352, 369, 111 S.Ct. 1859, 1871, 114 L.Ed.2d 395 (1991)).

{¶ 12} In J.E.B. v. Alabama, ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 

L.Ed.2d 89 (1994), the United States Supreme Court held that while the test outlined in 

Batson was originally intended to eliminate racial discrimination during jury selection, it 

must also be extended to include instances involving alleged gender discrimination. 

Regarding a jury's neutrality the Supreme Court observed the following:
Fairfield County, Case No. 21-CA-26 5

When state actors exercise peremptory challenges in reliance on 

gender stereotypes, they ratify and reinforce prejudicial views of the 

relative abilities of men and women. Because these stereotypes 

have wreaked injustice in so many other spheres of our country's 

public life, active discrimination by litigants on the basis of gender 

during jury selection "invites cynicism respecting the jury's neutrality 

and its obligation to adhere to the law." Powers v. Ohio, 499 U.S., at 

412, 111 S.Ct., at 1371. The potential for cynicism is particularly 

acute in cases where gender-related issues are prominent, such as 

cases involving rape, sexual harassment, or paternity. Discriminatory 

use of peremptory challenges may create the impression that the 

judicial system has acquiesced in suppressing full participation by 

one gender or that the “deck has been stacked” in favor of one side. 

See id., at 413, 111 S.Ct., at 1372 ("The verdict will not be accepted 

or understood [as fair] if the jury is chosen by unlawful means at the 

outset").

{¶ 13} Id. at 140.

Appellant's Arguments

{¶ 14} Appellant's complaints center on the state's use of two peremptory 

challenges to remove prospective jurors F.B. and J.C. During voir dire, the state asked 

J.C. how he would react if someone broke into his house at night. Transcript of trial (T.) 
Fairfield County, Case No. 21-CA-26 6

at 45. In exercising a peremptory challenge to remove J.C., the state cited J.C.'s answer 

to that question. We are unable to determine from the record, however, whether or not 

the state ever engaged prospective juror F.B in any questioning during voir dire.

{¶ 15} The following conversation took place during peremptory challenges:

The Court: Very well. Both parties have passed on challenges for 

cause. Let's begin with peremptory challenges. On behalf of the 

State?

[The State]: Your Honor, the State would excuse Juror no. 1296, 

[F.B.]

The Court: All right, Juror 1296, [F.B] would be excused.

[Counsel for Appellant]: Your Honor, at this time we'd ask the State 

to explain that challenge. We believe that they are doing it simply 

because he is a male and would tend to sympathize with my client.

The Court: [Counsel for the State] – Well you're raising it simply 

because he is a male. I mean –

[Counsel for Appellant]: Your Honor, I have a feeling that every one 

of the State's peremptory challenges is going to be a man who is a 

man in this case. I'm asking out of the box that they start justifying 

that before we get too far along this road.

The Court: I don't know that any – that [F.B.] or any other men 

indicated any type of bias in favor of men.
Fairfield County, Case No. 21-CA-26 7

[Counsel for Appellant]: Hence my point, Your Honor. I think the 

government –

The Court: Or in favor of women or --

[Counsel for Appellant]: I think the government is choosing to exclude 

jurors based on gender.

The Court: [Counsel for the State], what's your position.

[Counsel for the State]: No, Your Honor, there is no reason to do so. 

They've all indicated that they'd be able to be fair and impartial. They 

answered questions that I asked satisfactorily. It's just a matter of 

elimination on which jurors I think are most appropriate for this case. 

I don't believe that all the jurors that I would excuse are going to be 

male.

[Counsel for Appellant]: Judge, Batson requires them to be able to 

demonstrate that there is a reason beyond the fact that he's male 

and they haven't justified that at all. 

The Court: First of all, doesn't it have to be a protected class, 

[counsel for appellant?]

[Counsel for appellant]: Yeah, gender is a protected class.

The Court: And when you talk about gender being a protected class, 

simply I don't believe he indicated he was in anyway binary or 

anything else that would – I'm not buying your argument here. I'm 

granting the peremptory challenge. I don't think there is a Batson
Fairfield County, Case No. 21-CA-26 8

issue in this matter and I think prolonging that is not going to make 

this trial go away.

[Counsel for Appellant]: I'm not asking that this trial go away, Your 

Honor.

The Court: Well, I understand that, but it's not a basis – in this Court's 

opinion there is not a Batson issue. This is not a situation where 

[F.B.] is in a protected class that would be subject to a Batson

decision. Period. 

[Counsel for appellant]: I understand Your Honor.

The Court: Okay. Just so we're all on the same page. Alright. 

Peremptory challenge on behalf of the Defense?

[Counsel for appellant]: I'm going to excuse [J.N.], 1307, Your Honor.

The Court: Very well. Juror no. 1307, [J.N.] will be excused. 

Peremptory challenge on behalf of the State?

* * *

[Counsel for the state] Your Honor, the State would excuse Juror no. 

1297, [J.C.].

[Counsel for appellant]: Renew the same objection, Your Honor.

The Court: Very well.

[Counsel for the state]: I can provide an explanation, Your Honor.

The Court: Well, I don't know that one is necessary, but if you wish 

to provide one, you may.
Fairfield County, Case No. 21-CA-26 9

[Counsel for the state]: Just in terms in his response and how he 

would react in a stressful situation. 

The Court: All right. But regardless, Juror no. 1297, [J.C.] will be 

excused.

* * *

[Counsel for appellant]: Yes, Your Honor, and I would proffer on the 

record that both of the peremptory challenges by the government 

were male.

The Court: And I recognize that they were both male. I'm also 

believing that a peremptory challenge, that they are not traditionally 

a class of individuals – white males are not traditionally a class of 

individuals who have been in some way, shape, or form excluded 

from juries because of their status as a white male. So your objection 

previously was overruled and it remains overruled. 

{¶ 16} Transcript of trial (T.) at 64-67.

{¶ 17} The final composition of the jury was six females and three males.

{¶ 18} Upon the state's first peremptory challenge to excuse F.B., counsel for 

appellant established a prima facie case of purposeful discrimination in the state's 

exercise of the challenge. The state, while providing and explanation, was not prompted 

by the trial court to do so, and further, did not provide a gender-neutral explanation. The 

state argues here that because it was its first peremptory challenge, appellant cannot 
Fairfield County, Case No. 21-CA-26 10

argue there was a pattern of challenges against male-only jurors. But the Supreme Court 

of Ohio has found otherwise:

The existence of a pattern of discriminatory strikes is not a 

prerequisite either to finding a prima facie case in step one of the 

Batson analysis or to finding actual discrimination in step three. Such 

a rule would ignore Batson's requirement that the trial court consider 

all the circumstances in determining whether racial discrimination 

occurred. It would also mean that no Batson challenge could 

succeed unless the prosecutor challenged more than one member 

of the group in question. Such a rule would license prosecutors to 

exercise one illegal peremptory strike per trial. The law of equal 

protection does not allow "one free bite."

{¶ 19} State v. White, 85 Ohio St.3d 433, 436, 709 N.E.2d 140, 1999-Ohio-281.

{¶ 20} The bigger issue here, however, is that the trial court never considered the 

merits of appellant's objections or the state's responses because it found Batson

inapplicable to white males. T. 66, 69. The third step of the Batson test requires the trial 

court to determine whether or not the defendant proved that the peremptory strike was 

purposeful discrimination. State v. Blackshear, 8th Dist. Cuyahoga No. 108916, 2020-

Ohio-3187 ¶ 20. "The trial court must examine the peremptory challenge in context to 

ensure the offered race-neutral reasoning is not simply pretextual." State v. Fraizer, 115 

Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 65. The trial court considers the 
Fairfield County, Case No. 21-CA-26 11

persuasiveness of the state's reasoning, but the opponent bears the burden of persuasion 

regarding racial motivation. Id.

{¶ 21} If a trial court errs in applying Batson, the error is structural. See United 

States v. McFerron, 163 F.3d 952, 955-956 (6th Cir.1998) (cataloging federal appeals 

courts that have unanimously and "resoundingly" rejected arguments that Batson errors 

are subject to harmless-error review); State v. Thompson, 141Ohio St.3d 254, 2014-Ohio4751, 23 N.E.3d 1096, ¶ 53 citing McFerron; State v. Pickens, 141 Ohio St.3d 462, 2014-

Ohio-5445, 25 N.E.3d 1023, ¶ 64 citing McFerron.

{¶ 22} Upon consideration of the record in this matter and the applicable law we 

find the trial court erred as a matter of law in finding the requirements of Batson

inapplicable to instances of alleged gender discrimination and by further failing to require 

the state to provide a gender-neutral explanation for the exclusion of two male prospective 

jurors. Appellant's third assignment of error is sustained.

{¶ 23} Given our resolution of appellant's third assignment of error, his first and 

second assignments of error are moot. 

{¶ 24} The judgment of the Fairfield County Municipal Court is reversed. 

Appellant's conviction is vacated and the matter is remanded for a new trial.

By Wise, Earl, P.J.

Wise, J., J. and

Baldwin, J. concur.

EEW/rw