State of Utah v. Wilson

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Keith S. Wilson,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000760-CA

F I L E D
September 7, 2001 2001 UT App 259 -----

Second District, Ogden Department
The Honorable W. Brent West

Attorneys:
Jerald N. Engstrom and Maurice Richards, Ogden, for Appellant
Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Orme.

DAVIS, Judge:

Defendant Keith Wilson argues that the trial court erred in accepting the prosecutor's explanation for making a peremptory challenge and that the challenge was exercised with the purpose of removing a juror on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).

As we noted in State v. Bowman, 945 P.2d 153 (Utah Ct. App. 1997), a case virtually indistinguishable from the one before us, "'[t]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.'" Id. at 155 (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771 (1995) (per curiam)). We also declared that the decisive question in the third step of a Batson challenge is normally whether the prosecutor's proffered explanation should be believed. Resolution of this question often turns on the demeanor of the prosecutor because there is seldom much evidence of a prosecutor's subjective motivation. See id. at 156. Additionally, such a determination of a prosecutor's credibility is within the province of the trial court. See id.

In this case, although the court disagreed with the prosecutor that Fulton was not "recognizably Hispanic," the court found that the prosecutor's mistake was not unreasonable and that the proffered explanation was "credible." Thus, "[b]ecause we accord great deference to a trial court's determination of fact, we cannot say the trial court committed clear error when it accepted the prosecutor's explanation for his challenge as credible." Id. at 156-57.

Wilson next argues that the trial court erred by failing to conduct an eyewitness identification hearing before allowing the victim to identify him as the robber as required by State v. Ramirez, 817 P.2d 774, 781 (Utah 1991). Wilson also argues that the trial court failed to properly instruct the jury on this issue. We disagree. A review of the record indicates that the trial court did conduct a Ramirez hearing before opening statements out of the presence of the jury. The witness was examined by the state and subject to cross-examination by defense counsel. The court heard argument on the testimony; the court made specific findings under Ramirez; and it correctly concluded that the eyewitness identification was reliable enough to be admitted, and that any discrepancies in the eyewitness's testimony went to the weight of the testimony and were a matter for the jury. See State v. Mincy, 838 P.2d 648, 658 (Utah Ct. App. 1992). The court also did instruct the jury regarding the factors that might impact an eyewitness's identification. We discern no error.

Wilson finally argues that the evidence was insufficient to sustain the conviction. We have stated many times that we will not disturb a jury's verdict merely because there is contradictory evidence or inferences at trial. See, e.g., State v. Howell, 649 P.2d 91, 97 (Utah 1982). It is within the exclusive province of the jury to assess the credibility of witnesses and the weight of the evidence. See id. There was evidence presented that (1) Wilson was in the area where the robbery occurred, (2) the victim identified Wilson as the robber, and (3) there was testimony that the items recovered from Wilson were stolen from the store. Hence, when we view the marshaled evidence in the light most favorable to the verdict, Wilson has failed to demonstrate that the evidence was insufficient. SeeState v. Silva, 2000 UT App 292, ¶25, 13 P.3d 604.

Affirmed.
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge