NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

KELLY, Presiding Judge:

¶1 Following a jury trial, William Davis was convicted of various drug possession and drug paraphernalia charges. The trial court sentenced him to presumptive terms of imprisonment on each count, the longest of which was ten years, with the sentences to run concurrently. On appeal, Davis argues the court erred in denying his Batson1 challenge to the prosecutor's peremptory strike of the only African-American member of the venire, and asserts the sentencing minute entry should be corrected to reflect that the sentences for all counts are concurrent.

Factual and Procedural Background

¶2 In June 2012, after stopping a vehicle in which Davis was a passenger, United States Border Patrol agents found a duffel bag containing two sandwich-sized bags of marijuana. Davis admitted the duffel bag was his. Agents also found in Davis's pocket a small bag of crystal methamphetamine, a small blue plastic straw with crystal residue in it, and a pair of tweezers with residue. He was indicted on one count of knowingly possessing marijuana having a weight of less than two pounds (count one), one count of knowingly possessing a dangerous drug (methamphetamine) having a weight of less than nine grams (count two), and four counts of possession of drug paraphernalia (counts three through six).

¶3 During jury selection, the prosecutor struck the only African-American member of the venire. Davis is African-American. Davis raised a Batson challenge, which the trial court denied. The jury subsequently found Davis guilty of all charges. The court sentenced him to presumptive prison terms of 3.75 years on the marijuana count, ten years on the methamphetamine count, and 3.75 years on each of the drug paraphernalia counts, with the terms to run concurrently.2 Davis timely appealed.

Discussion

¶4 Davis argues the trial court erred by denying his Batson challenge to the prosecutor's peremptory strike of P.R., the only African-American member of the venire. "[W]hen considering a Batson challenge, we will defer to the trial court's findings of fact unless clearly erroneous." State v. Lucas, 199 Ariz. 366, ¶ 6, 18 P.3d 160, 162 (App. 2001). "We review de novo the trial court's application of the law." Id.

¶5 In State v. Harris, we set forth the test for resolving Batson challenges:

184 Ariz. 617, 619, 911 P.2d 623, 625 (App. 1995). The prosecutor's basis for the strike "must be more than a mere denial of improper motive, but it need not be `persuasive, or even plausible.'" Lucas, 199 Ariz. 366, ¶ 7, 18 P.3d at 162, quoting Purkett v. Elem, 514 U.S. 765, 768 (1995). After the prosecutor has articulated a race-neutral basis, "the opponent of the strike must persuade the trial court that the proponent's reason is pretextual and that the strike is actually based on race, gender, or another protected characteristic." Id. "`It is not until the third step that the persuasiveness of the justification becomes relevant.'" State v. Newell, 212 Ariz. 389, ¶ 54, 132 P.3d 833, 845 (2006), quoting Purkett, 514 U.S. at 768. "In determining whether the defendant has proven purposeful discrimination, `implausible or fantastic justifications may (and probably will) be found to be pretext[ual].'" Id., quoting Purkett, 514 U.S. at 768 (alteration in Newell). The court "evaluates the credibility of the state's proffered explanation, considering factors such as `the prosecutor's demeanor;. . . how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy." State v. Gay, 214 Ariz. 214, ¶ 17, 150 P.3d 787, 793 (App. 2007), quoting Miller-El v. Cockrell, 537 U.S. 322, 339 (2003) (alterations in Gay).

¶6 Davis's attorney objected to the prosecutor's peremptory strike of P.R., stating he did not "see any obvious nonracial reason why she was stricken." The trial court asked the prosecutor to share why he had "deemed it appropriate to strike [P.R.]." The prosecutor explained that he struck P.R. because she had a friend who was charged with "a pretty serious offense," and because she "has zero children." The prosecutor admitted that "[s]he is not the only person with zero children but the only person with zero children and a friend that was prosecuted and apparently convicted of a pretty serious offense."

¶7 Davis's attorney responded to the prosecutor's explanation by stating, "Mr. Davis does have a right to representation by an African-American, if that person is suitable and otherwise qualified. [P.R.] is the only one on the panel." He added that "[t]he fact that [P.R.] has no children is completely irrelevant to overcome the Batson challenge" and "[t]he fact that she served as a witness at a trial some[ ]time ago" and "didn't even recall or didn't learn the outcome of the trial" is not "sufficient to overcome the presumption here that [P.R.] is a qualified juror." The court asked the prosecutor to further explain his reasoning, and the prosecutor stated, "In my personal experience, people that don't have children don't have strong feelings about controlled substances as people that do have children, especially when you are talking about methamphetamine or marijuana." He did not further explain the rationale that P.R. had a friend who was charged with a serious crime.

¶8 The trial court found that Davis had made a prima facie showing of racial discrimination in the exercise of a peremptory strike. The court also found that the prosecutor had articulated a race-neutral explanation for the strike. The court concluded it "could not believe that [the prosecutor] has struck [P.R.] for any improper purpose" and it did not "believe discrimination is involved in this case. [The prosecutor's] explanation of striking [P.R.] . . . is race-neutral, and the strike is allowed."

¶9 Davis argues "there was discriminatory intent in the prosecutor's explanation in that other jurors seated on the jury had the same or similar `reasons' the State argued was the reason [P.R.] was struck." Davis points out that the prosecutor did not strike another prospective juror who also did not have children or other prospective jurors who recently had been victims of crimes. The state did, however, strike a third member of the venire who did not have underage children. Although the prosecutor's rationale for striking jurors may have been applied inconsistently, "[a] peremptory strike need not be totally logical or strategically sound; the motivation for it need only be race neutral." State v. Williams, 182 Ariz. 548, 556, 898 P.2d 497, 505 (App. 1995). The state's rationale—that individuals who have no children are less concerned about drug crimes—is racially neutral, and the court concluded Davis had not met his burden of showing the rationale was pretextual. The Batson analysis "turn[s] on issues of credibility," and the trial court is in the best position to assess the credibility of the prosecutor. Newell, 212 Ariz. 389, ¶ 54, 132 P.3d at 845. Thus, the trial court's findings are "due much deference." Id.

¶10 Davis argues that "disparate treatment of similarly situated jurors (no children, crime victims) suggests pretext." But P.R. was not similarly situated to the venire members who were recent victims of crime. She was not the victim of crime; instead, she had been a witness in a friend's case more than twenty years earlier.

¶11 Davis argues that "[t]he statistical discrepancy in this case, being that the only African American potential juror was struck when [Davis] is African American is an additional [reason] why this challenge should not have been overruled." However, "statistical disparity alone does not suggest the trial court erred." Gay, 214 Ariz. 214, ¶ 20, 150 P.3d at 794. The state points out that two minority jurors served on the jury. "Although not dispositive, `the fact that the state accepted other [minority] jurors on the venire is indicative of a nondiscriminatory motive.'" State v. Roque, 213 Ariz. 193, ¶ 15, 141 P.3d 368, 379 (2006), quoting State v. Eagle, 196 Ariz. 27, ¶ 12, 992 P.2d 1122, 1125 (App. 1998) (alteration in Roque). "We will not second-guess the trial judge's assessment of the prosecutor's credibility based on the Defendant's speculation about the prosecutor's true motive." Williams, 182 Ariz. at 556, 898 P.2d at 505. We defer to the trial court's determination that the prosecutor's explanation for striking P.R. was race-neutral and that the prosecutor did not strike P.R. "for any improper purpose." Thus, we conclude the court did not err by denying Davis's Batson challenge.

¶12 Davis next argues the sentencing minute entry incorrectly states that count one runs consecutively to count two.3 The state concedes that the minute entry should be modified to reflect that all sentences are to run concurrently. During sentencing, the trial court stated, "[I]t is the judgment and order of the Court as to Count 2 [that] Mr. Davis be sentenced to the presumptive term of 10 years in the Department of Corrections to run concurrently with the offenses in Counts 1, 3, 4, 5 and 6." After counsel for Davis asked for clarification about the sentences for counts 3 through 6, the court stated, "Everything in this case is concurrent" and agreed with counsel that "the total effect of sentence would be 10 years." The subsequent minute entry, however, stated that the sentence for count one was to run consecutively to the sentence for count two. A court's oral pronouncement in open court controls over the minute entry. State v. Whitney, 159 Ariz. 476, 487, 768 P.2d 638, 649 (1989). Here, the court explicitly stated that the sentences for counts one and two were to be served concurrently and that Davis would serve a total of ten years. Thus, we conclude that the court intended all of the sentences to run concurrently. We modify the trial court's sentencing minute entry to reflect that all sentences are to run concurrently.

Disposition

¶13 For the foregoing reasons, we affirm Davis's convictions, modify the sentencing minute entry to reflect that the sentences for all counts are to run concurrently, and affirm his sentences in all other respects.