State v. Trevino

[Cite as State v. Trevino, 2026-Ohio-3526.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO STATE OF OHIO, : APPEAL NO. C-250382 TRIAL NO. 24/CRB/4719/B Plaintiff-Appellee, : vs. : FERNANDO TREVINO, : JUDGMENT ENTRY Defendant-Appellant. : This cause was heard upon the appeal, the record, the briefs, and arguments. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is reversed and the cause is remanded. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27. To the clerk: Enter upon the journal of the court on 9/9/2026. Pursuant to App.R. 30, the clerk is directed to send all parties, or their counsel if represented, a copy of the court’s judgment and note such action on the docket. By:_______________________ Administrative Judge [Cite as State v. Trevino, 2026-Ohio-3526.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO STATE OF OHIO, : APPEAL NO. C-250382 TRIAL NO. 24/CRB/4719/B Plaintiff-Appellee, : vs. : FERNANDO TREVINO, : OPINION Defendant-Appellant. : Criminal Appeal From: Hamilton County Municipal Court Judgment Appealed From Is: Reversed and Cause Remanded Date of Judgment Entry on Appeal: September 9, 2026 Emily Smart Woerner, City Solicitor, Susan Zurface, Chief Prosecuting Attorney, and Joseph M. Cossins, Assistant Prosecuting Attorney, for Plaintiff-Appellee, Angela Chang, Hamilton County Public Defender, and Joshua A. Thompson, Assistant Public Defender, for Defendant-Appellant. [Cite as State v. Trevino, 2026-Ohio-3526.] KINSLEY, Presiding Judge. {¶1} Defendant-appellant Fernando Trevino appeals the judgment of the Hamilton County Municipal Court finding him guilty of soliciting, a misdemeanor of the third degree. Trevino raises four assignments of error. In the first, he argues under Batson v. Kentucky, 476 U.S. 79 (1976), that the prosecutor improperly excluded two prospective jurors from serving on the jury on the basis of their race. In the second, third, and fourth, he contends that the trial court erred in allowing a police officer to testify after the State failed to disclose her as a witness, that the prosecutor improperly vouched for the State’s witness during closing arguments, and that his conviction was against the manifest weight of the evidence. {¶2} We agree with Trevino that the trial court erred by overruling his Batson challenge. Even affording the trial court’s decision substantial deference, as we are required to do on appeal, the record before us reveals that the State’s explanation for its decision to remove at least one of the identified prospective jurors was pretextual rather than race-neutral. When asked to provide her rationale for using the majority of the State’s peremptory strikes to excuse the only two African-American females from the jury, the prosecutor proffered a plausible reason—that a relative of one of the African-American jurors had served time in prison. But a similarly-situated white prospective juror, who also had a family member with ties to the criminal legal system was not stricken, even though that prospective juror expressed hostility towards law enforcement and the African-American juror did not. Defense counsel pointed to this comparator juror as evidence of pretext. {¶3} Faced with this factual landscape, the trial court improperly truncated its analysis of Trevino’s Batson challenge. It accepted the State’s proffered race- neutral explanation without considering the impact of the State’s decision not to strike  OHIO FIRST DISTRICT COURT OF APPEALS the white prospective juror. As we explain in this opinion, and based on the well- settled precedent of the United States Supreme Court, this was error. We accordingly reverse Trevino’s conviction and remand the cause to the trial court. Background {¶4} On March 6, 2024, the Cincinnati Police Department employed Officer Sarah Cronin to pose as an undercover sex worker. While standing on a corner, she greeted Trevino and chatted with him, introducing herself as “Sidney.” At the end of their conversation, Trevino gave Cronin his phone number, which Cronin then gave to Officer Josh Espitia. Posing as “Sidney,” Espitia texted Trevino that evening, and the two exchanged text messages for several days. On March 21, 2024, Trevino sent “Sidney” a text message offering ten suboxone pills in exchange for sex. They planned to meet that afternoon. When he arrived at the agreed-upon location, Trevino was arrested and charged with solicitation and possession of criminal tools, both misdemeanors. {¶5} Trevino elected to try his case to a jury. During jury selection, the State used two of its three peremptory challenges to excuse the venire’s only two African- American women, Juror 7 and Juror 10. After the State excused Juror 10, Trevino’s attorney lodged a Batson challenge, noting “So far, both individuals who have been excused via peremptory challenges by the City have been black women, racial minorities. My client is also a racial minority . . . .” {¶6} The trial court asked the prosecutor to explain the State’s rationale. As to Juror 10, the prosecutor referenced the juror’s disclosure in voir dire that her son had recently been convicted of burglary and sentenced to three years in prison. This led the prosecutor to fear that Juror 10 would be biased against prosecutors or police or would feel sympathy towards Trevino. The prosecutor made this argument even 4  OHIO FIRST DISTRICT COURT OF APPEALS though Juror 10 herself had dispelled the exact concerns the State expressed. More specifically, when asked by the prosecutor in voir dire whether there was “anything about [her] involvement in [her son’s case] that would affect [her] ability to be fair and impartial and in making [her] decision here today,” Juror 10 said, “No.” She also denied that “anything about that experience would affect [her] and [her] decision if [she] were to sit on a jury here today.” When asked more specifically whether she had any feelings about police officers to share and whether she had any “bad feelings about the prosecutor or police officers” in her son’s case, she also said, “No.” {¶7} As to Juror 7, the prosecutor recounted that she “kind of routinely said she did not trust the police” and that she had concerns about officers who falsify evidence. But this was not exactly what Juror 7 had said in voir dire. In response to being asked her thoughts about undercover officers, she said, “I don’t have any negative thoughts. They serve a purpose, to investigate.” Juror 7 did suggest, however, that police might not always be truthful. When asked by the prosecutor, “Is there anything about the work [police officers] do that would lead you to think a crime hadn’t been committed if somebody was dealing or interacting with an undercover police officer?,” she responded, “No, unless they falsified any evidence.” She further indicated that, in her view, police can “sometimes . . . be biased against people of color.” But the only example she gave of this bias was in the use of excessive force, a situation the prosecutor was clear did not exist in this case. Juror 7 also said that she would follow the law even if she thought the police were being unfair. After the prosecutor argued that Juror 7 routinely said she did not trust police, the trial court reviewed Juror 7’s jury questionnaire, on which she wrote, “I lack confidence in police officers.” {¶8} Defense counsel then attempted to rebut the prosecution’s race-neutral 5  OHIO FIRST DISTRICT COURT OF APPEALS explanations for both prospective jurors. As to Juror 10, defense counsel pointed to two specific facts that rendered the State’s explanation unsatisfactory. First, defense counsel highlighted that Juror 10 was directly asked whether she would be biased against the prosecution and indicated that she would not. Thus, in the defense’s view, Juror 10 had directly dispelled the concern that the State raised that she might be motivated against the prosecution or for the defense based on her son’s experience. Second, defense counsel argued that there were other prospective jurors whose family members had been charged or convicted of crimes who were not the subject of peremptory challenges by the State—in particular a white female juror, Juror 14, whose sister had been charged with a crime. This other juror differed from Juror 10 only by race. That being the case, the defense argued, the potential for bias arising from a family member’s conviction could not be the real reason for Juror 10’s strike. Rather, the State’s use of a peremptory challenge had to be racially motivated. Responding to the difference in the two jurors, the State pointed to the fact that the conviction of Juror 10’s son was recent and that the sister’s criminal charge was a “wrong place/wrong time” situation. {¶9} Addressing Juror 7 and the statement about police officers on her questionnaire, defense counsel argued that the State had rehabilitated the juror’s statement in voir dire. In questioning the juror, the prosecutor elicited comments that the juror did in fact trust police and was only skeptical in situations where officers planted evidence, which she described as an “egregious, rare circumstance.” For this reason, defense counsel argued that the State had been inaccurate in describing the basis for its race-neutral explanation. {¶10} After hearing defense counsel’s arguments, the trial court denied the Batson challenge. In doing so, it said, “[The prosecutor] has at least identified two 6  OHIO FIRST DISTRICT COURT OF APPEALS areas that she has grounds or finds she has or believes she has grounds to exclude, so I’m going to deny the Batson motion.” In relying solely on the prosecutor’s belief, the trial court did not expressly resolve the question of whether the prosecutor’s arguments were pretextual, particularly as they applied to Juror 10 and the white female juror whose sister had been criminally charged. {¶11} A jury was then empaneled and sworn that included no female African- American jurors. {¶12} Following the presentation of evidence, the jury found Trevino guilty of solicitation and not guilty of possession of criminal tools. Trevino appealed. 1 Analysis {¶13} We begin with Trevino’s first assignment of error, in which he contends that the trial court erred in denying his Batson challenge as to Jurors 7 and 10. A. The Batson Standards {¶14} Ordinarily, a prosecutor may exercise a peremptory challenge “for any reason, or no reason at all.” Hernandez v. New York, 500 U.S. 352, 374 (1991). But a defendant has “the right to be tried by a jury whose members are selected pursuant to non-discriminatory criteria.” Batson, 476 U.S. at 85-86. Therefore, “[t]he Constitution forbids striking even a single prospective juror for a discriminatory purpose.” Flowers v. Mississippi, 588 U.S. 284, 303 (2019). In Batson, the Supreme Court established a three-step procedure for evaluating claims of racial discrimination in peremptory strikes: “First, the opponent of the strike must make a prima facia 1 The trial court sentenced Trevino to a $250 fine and ordered him to pay $130 in court costs and a $25 public defender fee. Trevino paid the fine and court costs but has not paid the $25 public defender fee. On October 6, 2025, that amount was sent to collections and still remains unpaid. The appeal of a misdemeanor conviction is not moot when a defendant’s fines, fees, or costs remain unpaid. See State v. Henderson, 2024-Ohio-2312, ¶ 18-19 (1st Dist.). Because Trevino’s $25 public defender fee remains outstanding, this appeal is not moot; however, payment of that fee would have rendered this appeal moot. 7  OHIO FIRST DISTRICT COURT OF APPEALS showing of discrimination. Second, the proponent must give a race-neutral explanation for the challenge. Third, the trial court must determine whether, under all the circumstances, the opponent has proven purposeful racial discrimination.” State v. White, 85 Ohio St.3d 433, 436 (1999), citing Batson at 96-98. {¶15} To meet the first prong of Batson, a challenger must demonstrate that (1) the prosecution used a peremptory challenge to excuse a member of a cognizable racial group, and (2) the facts and any other relevant circumstances raise an inference that the prosecution used the peremptory challenge to exclude a juror on account of race. Ohio v. Williams, 2021-Ohio-3491, ¶ 25 (10th Dist.). Whether a defendant satisfied these standards is a moot question if the trial court moves to the second step of Batson. Hernandez at 359; State v. Akins, 2024-Ohio-1491, ¶ 14 (1st Dist.). {¶16} At step two of Batson, the proponent of the peremptory challenge is required to provide a race-neutral explanation for the strike. White at 436. To do so, the prosecution must “give a clear and reasonably specific explanation of [its] legitimate reasons for exercising the challenge.” State v. Berry, 2019-Ohio-3902, ¶ 13 (10th Dist.). The explanation, however, need not rise to the level of a challenge for cause. Id. But prosecutors must nonetheless “be scrupulous in building a record which legitimately demonstrates their articulated concern.” State v. Manns, 2006- Ohio-5802, ¶ 50 (2d Dist.). {¶17} Finally, step three of Batson involves two components. First, the trial court must afford defense counsel “a sufficient opportunity to rebut the prosecutor’s proffered race-neutral reasons for striking” the challenged jurors. Pitchford v. Cain, ___ U.S. ___, 146 S.Ct. 1345, 1351-1352 (2026). Then, after hearing the defendant’s arguments, the trial court must itself “determine[] whether the prosecutor’s stated reasons were pretextual.” Id. at 1352. In doing so, the trial court must consider all of 8  OHIO FIRST DISTRICT COURT OF APPEALS the circumstances to assess whether the party opposing the peremptory challenge has proved purposed racial discrimination. State v. Adams, 2015-Ohio-3954, ¶ 160. In determining pretext, a pattern of using multiple peremptories against racial minorities might give rise to an inference of discrimination. Flowers, 588 U.S. at 307, citing Batson, 476 U.S. at 97. Pattern or not, the trial court must decide at step three whether the reason the prosecutor offered at step two is credible. State v. Thompson, 2014- Ohio-4751, ¶ 62. It cannot “simply accept a proffered race-neutral reason at face value, but must examine the prosecutor’s challenges in context to ensure that the reason is not merely pretextual.” State v. Frazier, 2007-Ohio-5048, ¶ 65. {¶18} The trial court need not make specific factual findings in resolving the third step of Batson. Id. at ¶ 98. Rather, it may deny a Batson challenge in summary form, by clearly rejecting the challenge, such as by stating on the record that the prosecutor offered a “racially-neutral reason” for the strike. Adams at ¶ 160-161. “The trial court’s finding at step three is entitled to deference, since it turns largely on evaluation of credibility.” (Cleaned up.) Thompson at ¶ 53. {¶19} In determining at the third step whether a prosecutor’s explanation is sufficiently race-neutral or is instead a pretext for racial discrimination, courts consider a range of factors that may individually or collectively establish pretext. See State v. Singer, 2019-Ohio-1922, ¶ 24 (6th Dist.), citing Ex parte Branch, 526 So.2d 609 (Ala. 1987). These include: (1) Whether the prosecutor’s proffered reasons for the peremptory strike are not related to the facts of the case. Id. This occurs when the prosecution’s proffered reason for striking a juror is factually contradicted by the record. See, e.g., Snyder v. Louisiana, 552 U.S. 472, 479-483 (2008) (finding a Batson violation, even under a highly deferential standard of review, where the prosecution based its strike 9  OHIO FIRST DISTRICT COURT OF APPEALS on a juror’s absence from his student teaching obligation, despite the fact that the dean of the student’s school had reported the absence not to be a problem and the student had expressed no further concerns about jury service). (2) Whether the prosecutor failed to ask questions in voir dire of the challenged juror or did not ask meaningful questions. Singer at ¶ 24. (3) Whether the prosecutor did not strike members of the venire with the same or similar characteristics of the challenged juror, signaling disparate treatment. Id. As the United States Supreme Court has held, a trial court’s denial of a Batson challenge is clearly erroneous when it does not take into account a prosecutor’s dissimilar treatment of white jurors who also present the same concerns that precipitate the challenged strike. Snyder at 474, 483 (“The implausibility of the prosecutor’s explanation is reinforced by his acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as [the challenged juror’s].”); see Miller-El v. Dretke, 545 U.S. 231, 252 (2005) (“Comparing his strike with the treatment of panel members who expressed similar views supports a conclusion that race was significant in determining who was challenged and who was not.”). (4) Whether members of the venire were examined in a disparate fashion during voir dire, e.g., whether the prosecutor asked a question designed to provoke a disqualifying response to black jurors but not white jurors. See Flowers, 588 U.S. at 308. The United States Supreme Court considered the relevance of this factor in Flowers, noting that prosecutors asked 29 questions in voir dire per black juror but only one question per white juror. Id. While it held that this criterion alone was not enough to constitute a Batson violation, it credited the prosecutor’s disparate 10  OHIO FIRST DISTRICT COURT OF APPEALS treatment of black and white jurors in voir dire as a basis for finding racial discrimination in combination with other factors. Id. at 310. (5) Whether the prosecutor’s use of peremptory challenges eliminates all remaining racial minorities on the jury. Singer at ¶ 24. A prosecutor need not strike all of the racial minorities from the venire for this criterion to support a finding of discrimination. As the Supreme Court noted in Flowers, striking five of six black jurors from the venire raised an inference that the prosecution violated Batson. Flowers at 315. (6) Whether the prosecutor offers an explanation based on group bias where the group trait is not shown to apply to the challenged juror specifically, e.g., assuming teachers as a class are “too liberal” without directing any specific questions to the individual juror to show the juror’s “potentially liberal nature.” Singer at ¶ 24. {¶20} The Sixth District applied these factors to the prosecutor’s use of a peremptory strike to excuse the venire’s sole African-American juror in Singer. Id. at ¶ 5. The trial court had permitted the strike on the basis of the prosecutor’s proffered race-neutral reasons, which included the juror’s youth, hair color, lack of education, and employment as a custodian. Id. But on appeal, the Sixth District reversed, finding the prosecutor’s explanation to be pretextual. Id. at ¶ 40-41. As to the first and sixth factors, the court highlighted the absence of any information that connected the juror’s youth and educational status to an inability to serve as a juror, specifically faulting the State for “fail[ing] to provide any explanation as to why this case required a juror with a certain degree of education or maturity.” Id. at ¶ 29-31. As to the second factor, the court noted that the State asked the challenged juror a single question in voir dire which was unrelated to its ultimate reasons for striking her. Id. at ¶ 32-33. In considering whether similarly-situated white jurors were also subject to challenge, the 11  OHIO FIRST DISTRICT COURT OF APPEALS court found it “peculiar” that the State did not strike at least four other white jurors with educational levels comparable to the challenged juror’s. Id. at ¶ 34. As to the fifth factor, the court acknowledged that the State used only one of its four peremptory challenges to strike an African-American juror. Id. at ¶ 37. But as to the fourth factor, it concluded that the prosecutor had not disparately questioned the prospective jurors and had not attempted to provoke disqualifying responses as a result. Id. at ¶ 36. Even though not all of the factors weighed in favor of pretext, the Sixth District still concluded that the trial court erred in denying the Batson challenge and reversed the defendant’s conviction. Id. at ¶ 40-41. {¶21} Singer’s holding is consistent with a litany of United States Supreme Court cases that find Batson violations by employing robust step-three analysis. For example, in Snyder, 552 U.S. at 479-483, the Supreme Court found the trial court’s Batson challenge denial clearly erroneous when it implicitly relied upon an explanation by the prosecutor that was belied by the factual record. As one rationale for its peremptory strike, the prosecution cited the challenged juror’s statement during voir dire that he was a college student participating in student teaching as part of his course of study. Id. at 478. He shared a concern that missing class would cause him not to complete this degree requirement. Id. at 480. But the trial court then had its law clerk contact the student’s college dean, who relayed to the student and the trial court that the student could serve on the jury without compromising his student teaching obligation. Id. at 481. After that, the student never brought up the concern again. Id. Against this backdrop, the Supreme Court considered the prosecutor’s concern to be “implausible” and therefore a pretext. Id. at 483-484. And because it was pretextual, it gave rise to an inference that it was discriminatory. Id. at 485. {¶22} Similarly, in State v. Kirk, 2019-Ohio-3887, ¶ 51 (8th Dist.), the Eighth 12  OHIO FIRST DISTRICT COURT OF APPEALS District reversed the trial court’s denial of a defendant’s Batson challenge where the prosecutor advanced unsupported assumptions about an African-American juror’s fitness to serve on the jury. When asked about his occupation, the juror indicated that he worked as an engineer at a hotel, performing maintenance tasks like repairing the air conditioning and fixing the lights. Id. at ¶ 40. The prosecutor took issue with the juror’s use of the term “engineer” to describe this work, characterizing his response as “up stating” and not “fully honest.” Id. The prosecutor also contended that the juror displayed inattentive body language which, in combination which his dishonest response, justified excusing the juror from service. Id. The court of appeals disagreed. Id. at ¶ 51. It noted that the juror responded truthfully, articulately, and appropriately to the prosecutor’s voluminous questions in voir dire, which was at odds with the prosecutor’s characterization of the juror. Id. In finding pretext, the appellate court weighed the fact that the juror himself expressed no reservations about his ability to serve against the prosecutor’s unfounded assumption that the juror was dishonest. Id. {¶23} We find Singer, Snyder, and Kirk particularly instructive in resolving Trevino’s claim of pretext in this case. B. Trevino’s Argument on Appeal {¶24} Turning to Trevino’s argument, he contends the trial court improperly denied his Batson challenge because the State’s explanations for striking Jurors 7 and 10 were pretextual rather than race-neutral. We agree, at least as to Juror 10. And because the improper exclusion of even a single juror violates Batson, we focus our analysis on the circumstances of Juror 10’s peremptory strike. See Flowers, 588 U.S. at 303. {¶25} To begin, we address the level of deference owed to the trial court’s findings. A trial court’s finding of nondiscrimination at step three of Batson is entitled 13  OHIO FIRST DISTRICT COURT OF APPEALS to deference because it is essentially an evaluation of the prosecutor’s credibility. Akins, 2024-Ohio-1491, at ¶ 13 (1st Dist.). But here we are unable to discern whether the trial court actually reached step three. Rather than denying Trevino’s Batson challenge outright, which would permit us to presume the trial court considered all of the circumstances Trevino raised as pretext, the trial court instead ruled on the basis of what the prosecutor believed: “[The prosecutor] has at least identified two areas that she has grounds or finds she has or believes she has grounds to exclude, so I’m going to deny the Batson motion.” This sounds more like a finding under step two, which tests the neutrality of the prosecutor’s explanation on its face. And we do not defer to the trial court’s legal conclusions at step two. See, e.g., United States v. Kimbrel, 532 F.3d 461, 467-468 (6th Cir. 2008). {¶26} But even affording deference to the trial court’s Batson challenge denial as if it were a step-three finding, the record reveals that prosecutor’s explanation as to Juror 10 was in fact pretextual. This conclusion arises from the Supreme Court’s determinations in Snyder, 552 U.S. 472, and Flowers, 588 U.S. 284, as well as the Sixth District’s holding in Singer, 2019-Ohio-1922 (6th Dist.). In all three cases, a similar combination of factors resulted in a finding of clear error—(1) the contradiction of the prosecutor’s explanation to the actual facts of the case, (2) the lack of meaningful questions by the prosecutor connected to one basis for the strike, (3) the prosecutor’s failure to strike a prospective white juror with the same characteristic giving rise to the concern, (4) the prosecutor’s use of multiple peremptory challenges to strike nearly all African-American jurors from the jury, and (5) the prosecutor’s reliance on an explanation based on group bias in the absence of any evidence that the group trait applied to the challenged juror. See Snyder at 479-485; Flowers at 302; Singer at ¶ 24-41. In all three cases, the trial court’s denial of a Batson challenge was reversed. 14  OHIO FIRST DISTRICT COURT OF APPEALS 1. Disconnect between the Prosecutor’s Explanation and the Facts of the Case {¶27} The prosecutor claimed to strike Juror 10 because her son’s criminal conviction might bias her against the State and police. But Juror 10 answered numerous questions in voir dire indicating the opposite. In response to the prosecutor’s inquiry, she indicated that she held no such bias and that her son’s case would not affect her ability to serve. {¶28} This case is similar to Snyder, in that the factual record conflicts with the prosecutor’s proffered explanation. In Snyder, the prosecutor offered the juror’s student teaching obligation as one basis to justify striking him from the jury. Snyder, 552 U.S. at 479. But the record did not support that the juror in fact had such an obligation that would conflict with his ability to fulfill his jury service, which rendered the prosecutor’s explanation “suspicious.” Id. at 479-483. As in Snyder, the prosecutor’s explanation in Trevino’s case was similarly “implausib[le]” and, by inference, discriminatory. See id. at 483; see also Foster v. Chatman, 578 U.S. 488, 506-507 (2016) (describing a prosecutor’s proffered explanation for a race-based peremptory strike as “difficult to credit” when it was factually contradicted by the record). This factor is suggestive of pretext. 2. Lack of Meaningful Questions to Support the Prosecutor’s Explanation {¶29} In addition to explaining that its strike was based on a concern that Juror 10 would be biased against the State, the prosecution also argued that Juror 10’s experience with her son might cause her to be biased in favor of Trevino. But it asked no meaningful questions to ferret out this concern. At most, it asked whether “anything about that experience would affect [her] and [her] decision if [she] were to sit on a jury here today.” But it never asked how she felt about Trevino in particular 15  OHIO FIRST DISTRICT COURT OF APPEALS or if she harbored any particular sympathy for him. {¶30} In Singer, the Sixth District held that a prosecutor’s failure to ask meaningful questions about the basis of his concern—a prospective juror’s lack of education—was indicative of pretext. Singer, 2019-Ohio-1922, at ¶ 32-33 (6th Dist.). The juror’s questionnaire indicated that she was employed as a custodian, which perhaps implied a lack of advanced education, but did not otherwise indicate how much education the juror had completed. Id. at ¶ 32. The court noted that if the prosecutor were in fact so concerned about the juror’s education level, he would have asked additional questions to learn the answers. Id. at ¶ 33. {¶31} Like in Singer, the prosecutor’s failure to ask questions about how Juror 10’s experience with her son may have affected her view of Trevino suggests pretext. Juror 10’s questionnaire merely disclosed that her son had been convicted of a crime and was serving a three-year sentence. It did not contain any indication of how that situation may have evoked sympathy for Trevino, if at all. If the prosecutor truly felt this was a risk, she could and should have asked. The lack of meaningful questions in this area suggests pretext. 3. Similarly-Situated White Juror {¶32} The prosecution struck Juror 10 because of her son’s criminal case but did not exercise a peremptory to strike Juror 14, a white female juror with an arguably more prejudicial circumstance. Like Juror 10, Juror 14 also had a family member charged with a crime—her sister. But unlike Juror 10, Juror 14 disclosed that she had some “mixed feelings” about police. In response to questioning from the prosecutor, she said she would put them aside if she were called to serve on the case. Notably, however, the prosecutor never asked her to describe what the “mixed feelings” were, a question that would have been relevant if the prosecutor were actually seeking to 16  OHIO FIRST DISTRICT COURT OF APPEALS unearth potential jury bias. {¶33} The prosecutor’s use of peremptory strikes to exclusively excuse African-American jurors who present the same concerns as similarly-situated white jurors has been the most consistent basis on which courts find clear error in a trial court’s Batson challenge denial.2 This was the case in Snyder, 552 U.S. at 479-483, where several prospective white jurors presented the same types of scheduling concerns that the challenged black juror raised but were left on the jury; in Flowers, 588 U.S. at 313-315, where prosecutors struck a prospective black juror on the basis that she might know the defendant’s family while not striking prospective white jurors who had similar connections to the defendant; in Singer, 2019-Ohio-1922, ¶ 34 (6th Dist.), where the prosecutor struck a black custodian on the basis of a perceived lack of education while not striking white jurors also employed in menial jobs; and a host of other cases presenting similar fact patterns. See, e.g., Foster, 578 U.S. at 512-513; Miller-El, 545 U.S. 231. {¶34} When a prosecutor’s “proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack panelist who is permitted to serve, that is evidence tending to prove purposeful discrimination.” Foster at 512. Given that Juror 14 expressed “mixed feelings” about police and Juror 10 did not, the prosecutor’s basis for striking Juror 10 rather than Juror 14 appeared to be racially motivated. This is yet another factor that weighs in favor of pretext. 4. Using Multiple Peremptory Challenges to Strike Nearly All Black Jurors {¶35} The prosecution used two of its three peremptory challenges to remove 2 A defendant is not required to identify an identical white comparator juror. Flowers, 588 U.S. at 311-312. Merely a similar counterpart will do. 17  OHIO FIRST DISTRICT COURT OF APPEALS the only two African-American women from the jury. In Flowers, the Supreme Court found that the fact the prosecution excused five of six black prospective jurors implied discrimination. Flowers, 588 U.S. at 307 (noting that a pattern of using peremptories to strike venire members of a particular race can create an inference of racial discrimination); see also Miller-El, 545 U.S. at 250 (holding that the State’s decision to retain a single black juror does not negate the inference of discrimination created by a pattern of race-based peremptory strikes). Applying Flowers, this pattern of excusing jurors gives rise to an inference of pretext. 5. Group Bias {¶36} Finally, the prosecutor based the explanation for striking Juror 10 on assumptions about how people whose loved ones have been convicted of a crime might react. The prosecutor assumed that such a family member would harbor negative sentiments about prosecutors and police and applied that perspective to Juror 10. But there was no evidence that Juror 10 actually felt this way, much less that any critical number of family members of those with criminal convictions do. {¶37} The Ohio Supreme Court has held that the potential bias that may result when the family member of a potential juror has experience “with the criminal justice system may be a legitimate, racially-neutral reason for exercising a peremptory challenge against the prospective juror.” (Emphasis added.) State v. Garrett, 2022- Ohio-4218, ¶ 84, citing State v. May, 2015-Ohio-4275, ¶ 51 (8th Dist.). The Court made this observation in a case that solely challenged Batson’s second step, as defense counsel mounted no argument or evidence to demonstrate pretext at the third step. Id. at ¶ 72. Thus, this observation is of little utility in resolving arguments of pretext at Batson’s final step. After all, as the United States Supreme Court has observed, a peremptory challenge based on a “family history of criminality” “might [be] selective 18  OHIO FIRST DISTRICT COURT OF APPEALS and based on racial considerations” even though it appears at first blush to be race- neutral. Miller-El, 537 U.S. at 344. {¶38} That is the circumstance here. It is true that Juror 10’s son was involved in the criminal legal system, but so was Juror 14’s sister. Juror 14 was permitted by the State to serve on the jury, and Juror 10 was not. This discrepancy indicates that the State’s proffered reason “might have been selective and based on racial considerations.” See id. {¶39} Adding these five factors together, as the Supreme Court has instructed, and considering the totality of the circumstances, leads to the conclusion that the State’s use of a peremptory challenge to excuse Juror 10 was substantially motivated by discriminatory intent. See Flowers, 588 U.S. at 315-316 (“We need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of [a] black prospective juror . . . was not motivated in substantial part by discriminatory intent.”). We therefore sustain Trevino’s first assignment of error as to Juror 10, reverse the judgment of conviction, and remand the cause to the trial court. Conclusion {¶40} We afford substantial deference to the trial court in the weight it afforded the prosecutor’s explanation for striking Juror 10. But we cannot ignore the facts of this record and the clear authority indicating that the combination of factors present here points to the racialized use of peremptory strikes in jury selection. We accordingly sustain Trevino’s first assignment of error and reverse the trial court’s judgment, which renders Trevino’s remaining assignments of error moot. We remand 19  OHIO FIRST DISTRICT COURT OF APPEALS the cause to the trial court for a new trial. Judgment reversed and cause remanded. MOORE, J., concurs. ZAYAS, J., dissents. ZAYAS, J., dissenting. {¶41} “The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.” Batson, 476 U.S. at 87. “[P]urposefully exclud[ing] black persons from juries undermines public confidence in the fairness of our system of justice.” Id. However, that did not happen here, and the defendant is not entitled to a new trial. The following comparison of the jurors demonstrates they were not similarly situated. Arrested Charged Prosecuted Convicted Sentenced Participated in Court