Opinion
Case No. 20020527-CA.
Filed July 17, 2003. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Robin W. Reese.
Catherine E. Lilly and Lisa J. Remal, Salt Lake City, for Appellant.
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.
Before Judges Davis, Orme, and Thorne.
MEMORANDUM DECISION
After defense counsel objected to the peremptory challenge and the State offered a race-neutral explanation for the challenge, the trial court asked defense counsel if she had "anything in response." She replied, "No, Your Honor, nothing further." At that point, having heard both sides' arguments regarding the peremptory challenge, the court was obliged to "`decide . . . whether the opponent of the strike ha[d] proved purposeful racial discrimination.'" State v. Higginbotham, 917 P.2d 545, 547 (Utah 1996) (quoting Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1770-71 (1995) (per curiam)). The court "accepted [the State's explanation] as a race neutral reason" and therefore chose to permit Mr. Gonzales's dismissal from the jury pool.
Defendant has failed to persuade us that the court's decision was clearly erroneous. See State v. Bowman, 945 P.2d 153, 155 (Utah Ct.App. 1997) (holding that the "clearly erroneous" standard of review applies toBatson-based appeals). Although Defendant points us to various flaws in the State's articulated reasoning, we must recognize that "a peremptory challenge can be made even for a mistaken reason so long as it is not racially motivated." Higginbotham, 917 P.2d at 549 n. 3. Although the court's analysis was minimal — and it would have been helpful had the court made further inquiry and explained in more depth its ultimate decision — we hold that it was adequate, especially in view of defense counsel's decision to forego any objection or rebuttal to the State's race-neutral explanation when given the opportunity to do so.
Defendant has likewise failed to demonstrate that the court erred in submitting the aggravated robbery charge to the jury. The State clearly "produce[d] `believable evidence of all the elements of the crime charged.'" State v. Hamilton, 2003 UT 22, ¶ 40, 473 Utah Adv. Rep. 18 (quoting State v. Clark, 2001 UT 9, ¶ 13, 20 P.3d 300). Therefore, the court appropriately denied Defendant's motion to dismiss the aggravated robbery charge at the conclusion of the State's case.
Affirmed.
WE CONCUR: James Z. Davis, Judge, and William A. Thorne Jr., Judge.