State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0875

State of Minnesota,
Respondent,

vs.

Long Vang,
Appellant.

Filed May 28, 2019
Affirmed
Florey, Judge

Olmsted County District Court
File No. 55-CR-16-4280

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Publi c Defender, Melissa Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Connolly, Judge; and
Bjorkman, Judge.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
On appeal from his conviction of pattern-of-stalking conduct, appellant Long Vang
argues that he is entitled to a new trial because the district court erred by granting the state’s
Batson challenges.1 We affirm.
FACTS
Appellant was charged in Olmsted County with pattern -of-stalking conduct, in
violation of Minn. Stat. § 609.749, subd. 5(a) (2016).2 He and the female victim were in a
romantic relation ship and there were allegations of a pattern of domestic violence .
Appellant pleaded not guilty to the stalking charge and requested a jury trial.
Voir dire commenced in early January 2018. During voir d ire, appellant used his
five peremptory strikes on five female jurors. The state made five Batson challenges, citing
gender-based discrimination. The state withdrew one of its challenges. The district court
denied two other challenges because a satisfactory gender -neutral reason for the strike s
was provided. The dis trict court sustained the state ’s two remaining challenges and
allowed jurors L.T. and S.A. to sit on the jury. Appellant was convicted of the charged
crime and sentenced to 76 months in prison. This appeal followed.

1 See Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 1723-24 (1986) (establishing
three-part analysis to determine if peremptory challenge is motivated by racial
discrimination); see also J.E.B. v. Alabama , 511 U.S. 127, 129, 114 S. Ct. 1419 , 1421
(1994) (extending Batson to prohibit gender discrimination in jury selection).
2 Appellant was also charged with third -degree murder, in violation of Minn. Stat.
§ 609.195(a) (2016), and second -degree murder, in violation of Minn. Stat. § 609.205,
subd. 1 (2016), but those charges were dropped before trial.

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D E C I S I O N
Appellant contends that the district court erred by sustaining the state ’s gender -
based Batson challenges because the state did not prove that appellant’s gender -neutral
reasons for striking the jurors were a pretext for gender discrimination. Appellant asserts
that he is entitled to a new trial as a result of this error.
The use of peremptory challenges to exclude prospective jurors is subject to the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Batson, 476 U.S. at 89, 106 S. Ct. at 1719. A peremptory challenge against a prospective
juror because of the juror’s gender denies equal protection both to the prospective juror,
because it denies the juror the right to participate in jury service, and to the defendant,
because it violates the defendant’s right to be tried by a jury made up of members selected
by nondiscriminatory c riteria. State v. Reiners , 664 N.W.2d 826, 831 (Minn. 2003); see
also J.E.B., 511 U.S. at 129 , 114 S. Ct. at 1421 . W hether discrimination motivated a
peremptory challenge is a factual determination, and reviewing courts give great deference
to the district court’s decision unless it is clearly erroneous. Reiners, 664 N.W.2d at 830-
31. “We afford great deference becaus e the record may not reflect all of the relevant
circumstances that the [district] court may consider.” State v. Martin, 773 N.W.2d 89, 101
(Minn. 2009) (quotation omitted ). If the district court’s determination was clearly
erroneous, a defendant is automatically entitled to a new trial. Reiners, 664 N.W.2d at 835.
In Batson, the Supreme Court established a three-step process to determine whether
a peremptory challenge had a discriminatory motive. 476 U.S. at 96-98, 106 S. Ct. at 1723-
24; see also Minn. R. Crim. P. 26.02, subd. 7(3) (adopting the Batson three-step process).

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First, the objecting party must establish a prima facie case of purposeful discrimination.
Batson, 476 U.S. at 96, 106 S. Ct. at 1723. Second, if the objecting party establishes a
prima facie case, then the proponent of the peremptory challenge must provide a race or
gender-neutral explanation. Id. at 97, 106 S. Ct. at 1723. Third, the district cou rt must
determine whether the objecting party has established purposeful discrimination. Id. at 98,
106 S. Ct. at 1724. It is important for the district court to clearly demarcate and “announce
on the record its analysis of each of the three steps of the Batson analysis.” Reiners, 664
N.W.2d at 832. The supreme court has emphasized “the importance of clarity at each step
of the analysis,” and when the district court fails to follow this “prescribed procedure” the
appellate courts will “examine the record without deferring to the district court’s analysis.”
State v. Seaver, 820 N.W.2d 627, 633 (Minn. App. 2012) (quotations omitted).
The distric t court’s analysis of the state ’s challenges did not include specific
findings at each phase of the three -step analysis required under Batson and rule 26.02.
Nevertheless, the district court followed the Batson three-step procedure, and the record
supports the district court’s conclusions regarding all three aspects of the analysis.
Prima facie showing
At step one, respondent was required to show that one or more members of a gender
had been excluded from the jury and that the circumstances r aised an inference that the
exclusion was based on gender. See Martin, 773 N.W.2d at 101. Appellant concedes that
the state arguably established a prima facie case of gender discrimination with regard to
his peremptory challenges. We agree.

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Under Minnesota law, an “inference of discrimination can be drawn by proof of
disproportionate impact” on a particular race or gender group. Seaver, 820 N.W.2d at 634
(quotation omitted). The state raised its Batson challenges because appellant struck five
jurors who were “all female.” The district court found that the state established a prima
facie case. If the district court had allow ed appellant’s five strikes, only one female juror
would have remained in a case involving a male defendant and a female victim. The record
confirms that the state established a prima facie case that the p eremptory strikes were
impermissibly made on the basis of gender.
Gender-neutral reason
At step two, “the issue is the facial validity of the [defendant’s] explanation, which
need not be persuasive or even plausible.” Martin, 773 N.W.2d at 101. Appellant argues
that he articulated valid, gender -neutral reasons for his strikes against L.T. and S.A. The
record shows that, initially, appellant could only offer generalized reasons for his strikes.
Appellant’s counsel stated that he gets “a general impression for whateve r [the jurors] are
saying in their answers.” The district court did not ac cept this reason, and instead stated
that appellant would need to articulate some gender-neutral reason for the strikes, otherwise
voir dire would need to be restarted. Appellant’s counsel repeated that he did not “have a
particular reason” for the strikes.
The district court then turned its attention to the state for comment on appellant’s
supplied answer. After the state responded that it still had concerns about the remaining
strikes being based on gender discrimination, the distri ct court allowed appellant five to

6
ten minutes to talk with his attorney and come up with gender -neutral reasons, otherwise
the district court stated it was going to grant the state’s motion.
Following the short break, appellant stated his new reasons for the strikes. With
regard to L.T., who had not said anything during the entire voir dire process, appellant’s
reason for the strike was that L.T. was a research technicia n at Mayo Clinic. Appellant
said he wished to avoid any conflict because Mayo Clinic records were part of the evidence
that was to be presented at trial. With regard to S.A., appellant stated that his reason for
the strike was that S.A.’s husband is a physician , so the Mayo Clinic repo rts could
potentially reach her husband, and he might have some knowledge that could be damaging
to appellant. Appellant’s counsel also said, “[p]lus, I think she was one of those that said
that there can be no violence, or something like that,” and “there is violence” in this case.
The district court again turned to the state for comment. On appeal, the state argues
that, by asking for argument regarding pretext without sustaining its Batson challenge on
the spot, the district court moved on to ste p three and implicitly decided that appellant’s
additional reasons were gender-neutral. We agree. Although this is not the exact procedure
described under Minnesota law, and therefore we need not defer to the district court’s
analysis at this step , it is clear that the district court accepted appellant’s gender-neutral
reasons. See Seaver, 820 N.W.2d at 633; see also State v. Taylor , 650 N.W.2d 190, 202 -
03 (Minn. 2002). As the state effectively concedes that appellant’s proffered reasons were
gender neutral, we turn to step three.

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Purposeful discrimination
At step three, the state had the burden of providing “(1) a de monstration that the
proffered gender-neutral reason is not the real reason for the strike and (2) a demonstration
that the real reason was the gender of the prospective juror.” Seaver, 820 N.W.2d at 635
(quotation omitted). One way to show purposeful discrimination is to show that appellant’s
“reason for striking a prospective juror of one gender applies equally to a similar
prospective juror of a different gender who is permitted to serve.” Id. (quotation omitted).
Another way is “to challenge the relevanc e or validity of the proffered gender-neutral
reason, but the failure of that reason does not demonstrate the second par t, that the r eal
reason was based on gender .” Id. (quotation omitted). Therefore, “[t]he elimination of a
defendant’s gender-neutral reason does not, by itself, support a presumption or even an
inference that the real reason was gender .” Id. (quotation omitted). “The state still must
prove that the real reason was gender discrimination by identifying some circumstance that
raises an inference of discrimination.” Id. (quotation omitted).
Appellant contends that the state did not disprove appellant’s reasons or prove that
the real reason was gender discrimination. With regard to L.T., the state argued that
appellant was only able to come up with his gender -neutral reason for striking her after
being given the opportunity to revise his original answer, th at L.T. did not speak during
voir dire, and that her position as a research technician at Mayo Clinic was not going to
cause her to favor one party more than the other. The district court granted the state’s
challenge as to L.T., finding that appellant’s proffered reason was pretextual. It reasoned

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that there were other male individuals on the jury who spoke about their employment at
Mayo Clinic, including juror J.M., who was a supervisor for the Mayo Foundation.
Appellant argues that a comparison between L.T. and J.M. is misplaced because
J.M. worked for Mayo Foundation, not Mayo Clinic. We disagree. While “[t]he potential
jurors being compared must be similarly situated,” appellant’s distinction is clearly made
in hindsight, considering his initial sta ted reason, which identified only a generalized
impression of L.T. Seaver, 820 N.W.2d at 636. The state argues, and we agree, that this
new reasoning was not before the district court when it made its ruling. The juror
questionnaires are not in the reco rd on appeal and neither is information regarding J.M.’s
exact job duties. The district court was therefore justified in considering similarly situated
jurors when evaluating appellant’s gender -neutral reasoning, and it was not clearly
erroneous to sustain the state’s challenge to L.T.
With regard to S.A., the state admitted that she gave one favorable response to the
state, but then argued that appellant’s theory regarding her being married to a doctor and
receiving prejudicial information as a result was “far-fetched” and assumed that she would
violate the court’s order not to discuss the case with others. The district court granted the
state’s Batson challenge as to S.A., likewise finding appellant’s reasoning to be pretextual.
The district court noted that S.A.’s responses during voir dire were very limited, and that
the record did not indicate whether her husband was a physician at Mayo Clinic, there
having been no follow up with her about this topic during questioning.
Appellant argues that the state failed to meet its burden regarding juror S.A. because
it did not sufficiently dispute appellant’s reasoning that S.A.’s husband was a physician.

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Additionally, appellant claims that the state struck a male juror, G .K., for having been
convicted for domes tic assault against a family member and states that this was similar
logic to appellant striking S.A. for her views on violence.
The district court is entitled to broad deference at this step of the analysis, and it did
not clearly err by disregarding a ppellant’s theory that assumed a juror would break the
court’s rules. See Taylor, 650 N.W.2d at 203. Additionally, no evidence was elicited or
presented that S.A.’s husband was in any way connected to Mayo. The state’s strike of
one juror for having a pri or domestic-violence conviction in a case involving domestic
violence does not convert appellant’s discriminatory strike into a gender-neutral one.
We conclude that the state successfully challenged the validity of appellant’s
proffered gender-neutral reasons, but the state still needed to prove that the real reasons for
the strikes were gender discrimination. See Seaver , 820 N.W.2d at 635. Here, the
circumstance which raises an inference of discrimination is that a ppellant struck five out
of six women fr om the juror pool in a case with a male defendant and a female victim .
Appellant’s gender -neutral basis for striking S.A., which centered on S.A.’s husband,
assumed that S.A. would violate a court order and speak with her husband about the case.
This thi n basis was overcome by the state given the context and nature of appellant’s
strikes. Further, it was not even established that S.A.’s husband worked at Mayo. As for
appellant’s other gender -neutral reason, which centered on S.A.’s response to a questio n
about violence, appellant initially failed to cite this reason, and appellant displayed
uncertainty over S.A.’s exact response. Having overcome these proffered reasons, the

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remaining reason for striking S.A. could only have been based in discrimination.
Therefore, the district court did not clearly err in determining that the state met its burden.
Affirmed.