BARTEAU, Senior Judge.
Willie Bigsbee appeals his two convictions of dealing in cocaine, both as Class A felonies. Ind.Code § 35-48-4-1 (2006). We affirm.
Bigsbee raises two issues, which we restate as:
In 2010, William Estep worked for Kokomo Police Detective Shane Melton as a confidential informant. On December 17, 2010, Estep contacted Bigsbee at Melton's request, and the two men met later that day. Next, on December 28, 2010, and January 6, 2011, Estep arranged cocaine purchases with Bigsbee by phone, went to Bigsbee's apartment, and exchanged cocaine for money while Melton monitored the phone calls and the transactions. The State arrested Bigsbee and charged him with three counts of dealing in cocaine as Class A felonies.
The jury could not reach a verdict on the first count of dealing in cocaine, which addressed Estep's interaction with Bigsbee on December 17, 2010, but convicted Bigsbee on counts two and three, which were related to Estep's purchases of cocaine from Bigsbee on December 28, 2010, and January 6, 2011, respectively. The State dismissed count one, and the court sentenced Bigsbee on counts two and three. This appeal followed.
Bigsbee argues that the trial court erred by upholding the prosecutor's peremptory strikes of two African-American potential jurors because the strikes violated the holdings in Batson and its progeny. The State responds that the prosecutor's reasons for the peremptory strikes were race-neutral and did not contravene Batson.
The Supreme Court of the United States has determined that "[p]urposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." Batson, 106 S.Ct. at 1717. Subsequent cases have established that the exclusion of even a sole prospective juror based on race, ethnicity, or gender violates the Fourteenth Amendment's Equal Protection Clause. Addison v. State, 962 N.E.2d 1202, 1208 (Ind.2012).
Under Batson and its progeny, a trial court must engage in a three-step process in evaluating a claim that a peremptory challenge was based on race. Cartwright v. State, 962 N.E.2d 1217, 1220 (Ind.2012). First, a defendant must make a prima facie showing that a peremptory challenge was exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the panelist in question; and third, in light of the parties' arguments, the court must determine whether the defendant has shown purposeful discrimination. Id. at 1220-21.
The prosecutor must present more than a mere denial of improper motive. Highler v. State, 854 N.E.2d 823, 827 (Ind.2006). The prosecution's explanation is considered race-neutral if, on its face, it is based on something other than race. Cartwright, 962 N.E.2d at 1221. Although the ultimate burden of persuasion for a Batson challenge rests with the party opposing the strike, the third step is the duty of the trial judge. Id. Accordingly, a trial court's decision concerning whether a peremptory challenge is discriminatory is given deference on appellate review and will be set aside only if found to be clearly erroneous. Id.
Here, Bigsbee challenged the State's striking of an African-American man and an African-American woman from the venire panel. The trial court noted that the State had stricken two of four African-Americans from the panel and asked the State to justify its strikes. The State contended that the African-American man seemed to be confused and also seemed to be asleep at one point.
In light of the State's explanations and Bigsbee's failure to support his claim of purposeful racial bias, we cannot conclude that the court clearly erred in overruling Bigsbee's Batson objection. See Forrest v. State, 757 N.E.2d 1003, 1005 (Ind.2001) (determining that the trial court properly overruled Forrest's objection to the State's peremptory strike where the prosecutor stated that he struck the juror from the panel because she had received only forty-five minutes of rest that night and appeared during voir dire to favor the defense).
Next, Bigsbee argues that the constitutional protections set forth in Batson and its progeny should be extended to bar parties from using peremptory strikes to remove potential jurors on the basis of age. Our Supreme Court has explicitly held that "age is not an impermissible basis for using a peremptory challenge" and challenging a juror due to his or her young age does not violate the Equal Protection Clause of the United States Constitution. Price v. State, 725 N.E.2d 82, 87 (Ind.2000). Bigsbee acknowledges the holding in Price but argues that it should be reconsidered. We are not free to disregard our Supreme Court's precedent and must reject his argument.
Bigsbee further claims that the State's use of peremptory challenges to strike potential jurors on the basis of age violates article I, section 19 of the Indiana Constitution. However, Bigsbee did not argue that specific constitutional provision to the trial court, so we find his claim to be waived for appellate review. See Orta v. State, 940 N.E.2d 370, 377 (Ind.Ct.App. 2011) (determining that Orta's argument against a jury instruction was waived on appeal because it was not presented to the trial court), trans. denied.
In summary, we find no error in the trial court's overruling of Bigsbee's objection to the State's peremptory strikes.
Bigsbee argues that the evidence is insufficient to sustain his convictions because he contends that the State failed to prove that the controlled buys followed proper procedures. The State responds that sufficient evidence was presented to establish that Bigsbee sold cocaine to Estep on two occasions.
When an appellant challenges the sufficiency of the evidence supporting a conviction, we do not reweigh the evidence or judge the credibility of the witnesses. Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011). We affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable
Here, the evidence presented at trial establishes that Estep met Bigsbee in mid-2010. Bigsbee gave Estep his telephone number and offered to sell cocaine to him. On December 28, 2010, Estep called Bigsbee while working as a confidential informant. As Melton listened in on the conversation, Estep and Bigsbee arranged a cocaine transaction. Bigsbee instructed Estep to come to his apartment for the deal. Before Estep went to Bigsbee's residence, Melton and another officer searched Estep's person and car for contraband. The officers did not find any contraband. Next, Melton activated an audio/video surveillance device, which was disguised as a key fob, and gave it to Estep. Melton also gave Estep $100 for the purchase. After these preparations, Estep drove to Bigsbee's residence, and Melton followed him.
Bigsbee leased an apartment from the Kokomo Housing Authority. The apartment was located in a family housing project. Estep parked outside Bigsbee's apartment. Melton parked nearby, where he could see the front of the apartment. Estep went into Bigsbee's residence and gave him $100. Another person arrived a few minutes later and gave cocaine to Bigsbee, who put it on a table for Estep to pick up. Estep left the apartment with the cocaine and met the officers at a prearranged location. He handed the cocaine to Melton. Next, Melton and another officer searched Estep and his car and found no additional contraband. Melton took the surveillance device from Estep and turned it off. Later, Melton downloaded data from the surveillance device and captured an image of Bigsbee in his apartment and an image of the cocaine that Estep purchased. Melton also listened to the audio recording and recognized Bigsbee's voice.
On January 6, 2011, Estep called Bigsbee again, with Melton listening in on the conversation, and asked to purchase cocaine. Bigsbee told Estep to come to his apartment. Before Estep went to Bigsbee's residence, Melton and another officer searched Estep's person and car for contraband and found none. Next, Melton gave Estep $100. He also activated a surveillance device and gave it to Estep.
Estep subsequently drove to Bigsbee's apartment, and the officers followed him and parked nearby. Bigsbee met Estep at the door and gave him a baggie of cocaine in exchange for $100. After Estep left Bigsbee's apartment, he met the officers at a prearranged spot. He gave Melton the cocaine, and the officers searched his person and car for additional contraband. They found none. Melton took the surveillance device from Estep and turned it off. He later downloaded the data and captured an image of Estep reaching for a baggie of cocaine and an image of Bigsbee with money in his hand. Melton and Estep also listened to the audio recording and recognized Bigsbee's voice.
For the reasons stated above, we affirm the judgment of the trial court.
Affirmed.
NAJAM, J., and MATHIAS, J., concur.