State of Utah, v. Candelaria

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Bernabe S. Candelaria,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010476-CA

F I L E D
May 2, 2002 2002 UT App 141 -----

Second District, Ogden Department
The Honorable Pamela G. Heffernan

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

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Before Judges Jackson, Billings, and Bench.

BILLINGS, Associate Presiding Judge:

Defendant Bernabe S. Candelaria appeals from convictions of Forcible Sexual Abuse, in violation of Utah Code Ann. § 76-5-404 (1999), and Unlawful Sexual Activity with a Minor, in violation of Utah Code Ann. § 76-5-401 (1999). We affirm.

Defendant first argues the trial court violated his right to equal protection by allowing the prosecutor to exercise a peremptory challenge against the only remaining prospective juror with a Hispanic surname (the Juror). Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. State v. Colwell, 2000 UT 8,¶17, 994 P.2d 177 (quotations and citations omitted).

While in the present case "we express grave doubts that [D]efendant made . . . a prima facie case" under step one, on the record before us we must conclude the prosecutor "waived the issue by . . . explaining the reasons for [the] peremptory challenge." State v. Merrill, 928 P.2d 401, 403 (Utah Ct. App. 1996).

In regard to step two, Defendant does not challenge the trial court's conclusion that the prosecutor's explanations were race-neutral on their face. The prosecutor challenged the Juror in part because he was single and did not have children. That a prospective juror has no children is a facially valid, race-neutral reason for striking him or her in a case involving sexual abuse or assault of a child. See State v. Balentine, 730 So. 2d 255, 261 (Ala. Crim. App. 1998) (upholding strike against prospective juror without children). The prosecutor also challenged the Juror because he appeared bored, was fidgeting in his seat, placed his head on his shoulders, and did not make eye contact while the court was giving instructions. Although "'a prosecutor's explanation of [a] challenge[] on the ground[] of inattentiveness deserves careful scrutiny'" by the trial court, such explanation "is facially . . . race neutral." United States v. Johnson, 4 F.3d 904, 913 (10th Cir. 1993) (citations omitted).

Defendant argues the prosecutor's explanations were pretexts to disguise a racial motive. However, Defendant did not support this argument with meaningful analysis before the trial court or on appeal. The determination of whether a peremptory challenge involves purposeful discrimination "'generally turns on the credibility of the proponent of the strike and will not be set aside unless it is clearly erroneous.'" State v. Cannon, 2002 UT App 18,¶11, 41 P.3d 1153 (quoting State v. Higginbotham, 917 P.2d 545, 548 (Utah 1996)). The trial court rejected Defendant's pretext arguments, finding that the prosecutor's reasons were "race-neutral" and "reasonable." We have no basis to question the trial court's assessment.

Defendant next argues his trial counsel was ineffective in requesting a curative instruction, but not a mistrial, after the victim testified she did not yell because she was afraid because Defendant had stabbed his brother. We presume that a jury "'will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an "overwhelming probability" that the jury will be unable to follow the court's instructions, and a strong likelihood that the effect of the evidence would be "devastating" to the defendant.'" State v. Harmon, 956 P.2d 262, 273 (Utah 1998) (citations omitted). The present case is not a case where "the improper purpose for which the jury might consider the [testimony] bears closely on the central question--[D]efendant's guilt or innocence." State v. Wetzel, 868 P.2d 64, 69 (Utah 1993). Because it was not unreasonable for trial counsel to ask for a curative instruction rather than a mistrial, this claim fails.

Finally, Defendant argues his trial counsel was ineffective in "not mak[ing] a record objecting" when the trial court allowed an adult to sit next to and coach the victim during her testimony. The practice of allowing an adult or victim's advocate to sit near a minor victim "is not inherently prejudicial to [a] defendant." State v. Harrison, 2001 UT 33,¶10, 24 P.3d 936. Additionally, as Defendant acknowledges, the record contains "no showing of actual prejudice." Id. Thus, this claim fails.

We therefore affirm.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Russell W. Bench, Judge