State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0220

State of Minnesota,
Respondent,

vs.

Nougai Xiong,
Appellant.

Filed April 12, 2021
Affirmed
Smith, Tracy M., Judge

Ramsey County District Court
File No. 62-CR-18-4722

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

John J. Choi, Ramsey County Attorney, Thom as R. Ragatz, Assist ant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Pres iding Judge; Smith, Tracy M., Judge; and
Rodenberg, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

2
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this direct appeal from final judgmen t, appellant Nougai Xiong argues that his
conviction of aiding and abetting second-degree intentional murder must be reversed and
a new trial ordered because the district court erred when it sustained respondent State of
Minnesota’s challenges to his peremptory ch allenges to two Hmong prospective jurors.
Because the district court did not clearly err by finding that Xiong’s challenges were
racially motivated, we affirm.
FACTS
The following facts were established at Xion g’s jury trial. The charges in this case
stemmed from a gang-related altercation that ended in a fatal shooting at the Hmong
International Freedom Festival. The festival is a Hmong cultural gathering that attracts up
to 50,000 attendees each year. The altercation occurred between rival Asian gang members,
and the victim of the shooting was Hmong. In an amended complaint, the state charged
Xiong with (1) aiding and abe tting second-degree intentional murder for the benefit of a
gang, (2) aiding and abetting second-degree intentional murder, (3) aiding and abetting
second-degree unintentional felony murder for the benefit of a gang, and (4) aiding and
abetting second-degree unintentional felony murder.
At Xiong’s trial, the state asserted a Batson challenge to Xiong’s peremptory
challenges of three prospective jurors —Juror 9, Juror 3, and Juror 26. See Batson v.
Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712 , 1723-24 (1986) (establishing test for
determining race discrimination in jury selecti on). The district court found that the state

3
did not meet its burden of finding purposeful discrimina tion relating to Juror 9 and
permitted that challenge, but it found that the state did establish purposeful discrimination
as to Jurors 3 and 26 and denied those challenges.
The Batson challenge followed a two-day jury-sel ection process. On the first day,
jurors were first questioned individually, based on their answers to the juror questionnaire.
Juror 9, self-identifying as Asian, was questioned regarding his knowledge of the case. He
indicated that he had seen a video and read comments on social media about the shooting,
and he referred to the victim by his first name when discu ssing the video. Juror 9 also
indicated that he wished to hear “both stories.” Xiong moved to dismiss Juror 9 for cause.
The district court denied Xion g’s motion, stating that Juror 9 would remain on the panel
“at this time.” Juror 26, who self-identified as Asian, was questioned about the possibility
that she was related to a witness. After her answers suggested no relationship, no motions
were made to remove Juror 26 for cause. Juror 3, who self-i dentified as Asian, was also
questioned individually, and no motions were made relating to him.
Another juror, Juror 4, self-identified as Asian and discussed “growing up in the
Hmong community.” Juror 4 was dismissed for cause by the district court following an off-
the-record bench conversation because he was “arguably a witness” since he attended the
festival on the day of the shooting and heard the gunshots. A number of other prospective
jurors were challenged for cause during individual questioning.
On the second day of jury selection, th e prospective jurors were called into the
courtroom as a group and questioned. Juror 9, Juror 26, and Juror 3 all answered questions.
The parties then passed the panel for cause.

4
Each party exercised its pere mptory challenges. Among th e first four of his five
challenges, Xiong exercised peremptory challe nges to Jurors 3, 9, and 26. These jurors
were the only remaining prospective jurors on the panel who self-identified as Asian.
The State asserted its Batson challenge with respect to each peremptory challenge.
Following arguments, the district court ruled from the bench, followed by a written order.
The district court found that the challenge to Juror 9 was not motivated by racial
discrimination, and that juror was therefore excused as a result of the peremptory challenge.
But the district court found th at the challenges to Juror 3 and Juror 26 were racially
motivated and denied those challenges. Jurors 3 and 26 therefore served on the jury.
The jury returned a verdict of guilty on all four counts, and the district court
sentenced Xiong to 378 months’ imprisonment.
Xiong appeals.
DECISION
The Equal Protection Clause of the Fo urteenth Amendment prohibits purposeful
racial discrimination in jury selection, in cluding in making peremptory challenges to
prospective jurors. U.S. Const. amend. XIV, § 1; Batson, 469 U.S. at 89, 106 S. Ct. at 1719.
This prohibition extends to race discrimination by defendants. Georgia v. McCollum, 505
U.S. 42, 59, 112 S. Ct. 2348, 2359 (1992).
Minnesota courts have adopted the th ree-step framework established in Batson to
determine whether a perempto ry challenge was motivated by racial discrimination. See
Minn. R. Crim. P. 26.02 subd. 7(3); accord State v. Martin , 773 N.W.2d 89, 101 (Minn.
2009) (citations omitted). First, the party objecting to the peremptory challenge must make

5
a prima facie showing that th e challenge was exercised agai nst a prospective juror based
on race. State v. Wilson , 900 N.W.2d 373, 378 (Minn. 20 17). Second, if the objector
satisfies this burden, the burden shifts to th e party exercising the peremptory challenge to
articulate a race-neutral reason for the challenge. Id. Third, if a race-neutral reason is
articulated, the burden shifts back to the objec ting party to establish that the race-neutral
reason is merely a pretext for purposeful discrimination. Id. The objecting party thus “has
the ultimate burden of proving pretext and discriminatory intent.” Id. (quotation omitted).
Reviewing courts give great deference to a district court’s factual determination of
the existence of racial discrimination and will not reverse the district court’s ruling unless
it is clearly erroneous. See Martin, 773 N.W.2d at 101.
A. The district court did not err by finding that the state made a prima facie
showing of race discrimination.

The prima facie requirement of step one has a low bar. Wilson, 900 N.W.2d at 382.
The objecting party must show two things: “(1) that on e or more members of a racial
minority has been peremptorily excluded and (2) that circumstances of the case raise an
inference that the exclusion was based on race .” State v. Onyelobi, 879 N.W.2d 334, 345
(Minn. 2016) (quotations omitted). Xiong argues that the state showed neither.
The district court found that the state sa tisfied both requirements of a prima facie
case, explaining:
After challenges for cause, ther e were three members of the
final jury pool that were of Hmong descent. All three Hmong
jurors were, then, [challenge d] by Defendant’s counsel.
Further, the particular facts of the underlying case in
connection with the removal of all three Hmong jurors create
an inference that the exclusion was based on race. Specifically,

6
the underlying charges stem from a shooting that occurred at
the Hmong Freedom Festival and the victim who was shot and
died was also Hmong.

Xiong argues that the state failed to satisfy the first requirement because it did not
prove that the jurors were Hmong. As an initial matter, we note that this requirement asks
whether members of a racial minority have been excluded. Wilson, 900 N.W.2d at 378.
The record reflects that a ll three jurors identifying as “Asian” were peremptorily
challenged by the defense, and the district court noted that the jurors were of Asian descent.
Regarding the district court’s description of the jurors as Hmong, the record also supports
that determination. Although the jurors were not questioned about their specific ethnicity,
other information indicated that they were Hmong. Juror 9, when questioned individually
about why he did not attend the Hmong Freedom Festival, said it was due to incidents that
were occurring in out-of-state festivals “f or the Hmong community.” Juror 26 indicated
that she attended a Hmong ch urch, and, when responding to a question on the juror
questionnaire asking prospective jurors about their feelings towards “Minnesota’s Hmong
immigrant population,” Juror 26 indicated that she is “one in the community [her]self.”
Finally, the district court observed that the challenged jurors all had Hmong surnames. This
record is sufficient to support the district court’s finding. We also observe that, in
responding to the Batson challenge, defense counsel agreed with the district court that the
jurors were Hmong, arguing that Xiong would not have a motive to remove Hmong jurors
since Xiong himself is Hmong.
Xiong also contends that the state failed to satisfy the second requirement of a prima
facie case—that the circumstances raise an inference that the challenges were based on the

7
jurors’ race. He contends that that the circ umstances raise no such inference because the
victim and the defendant are the same race, because the case involved rival gangs, and
because all of the key people in the case were Hmong. It is true that the supreme court has
said “[w]hether the circumstances of the case raise an inference of discrimination depends
in part on the races of the defendant and the victim.” Angus v. State, 695 N.W.2d 109, 117
(Minn. 2005), abrogated on other grounds by Rivera v. Illinois, 556 U.S. 148, 129 S. Ct.
1446 (2009). But additional circumstances were present here. As the district court noted,
the shooting occurred between rival Asian-asso ciated gangs at a festival celebrating
Hmong culture and the victim was Hmong. Together, these circumstances are sufficient to
support the district court’s determination of an inference that Xiong’s challenges to the
three Hmong prospective jurors was racially motivated.
Xiong suggests that the district court improperly considered Xiong’s peremptory
challenge to Juror 9 when de termining whether the state made a prima facie case of
discrimination because the district court later found that the state did not prove purposeful
discrimination with respect to that juror. He cites State v. Campbell , in which this court
reversed a district court’s de termination that the defendant discriminated on the basis of
race in challenging one non-White juror, but not two others, based on race. 772 N.W.2d
858, 860-61, 866 (Minn. App. 2009). There, we concluded that the district court clearly
erred by finding a “pattern” of discrimination based on the defendant’s challenges to three
non-White jurors when all but one of the three challenges were ultimately found to be
nondiscriminatory. Id. at 864. Here, the district court di d not rely solely on a pattern of
discrimination based on the remo val of the three Hmong jurors to establish a prima facie

8
case. And, unlike in Campbell, it did not later find that all but one of the challenges was
valid—rather, it found that the challenges to Jurors 3 and 26 were discriminatory. Campbell
does not undermine the finding of prima facie case here.
Because the state met its initial burden in making a prima facie showing of
discrimination, the burden shifted to the defe nse as the party exercising the peremptory
challenge to proffer race-neutral reasons for the challenges. The state does not assert Xiong
failed to proffer facially race-neutral reasons for the peremptory challenges, so we turn to
the third step of the Batson analysis.
B. The district court did not clearly err by finding that Xiong’s reasons for
the challenges were pretexts for race discrimination.

Xiong argues that the district court clearly erred by finding that the reasons that he
articulated for the challenges to Jurors 3 and 26 were pretextual and that the real reason for
the challenges was race discrimination. Reviewing courts gives great deference to a district
court’s factual determination of discrimination. Martin, 773 N.W.2d at 101. This deference
is owed because the district court “occupies a unique position to observe the demeanor of
the prospective juror and evaluate the credibility of the party that exercised the peremptory
challenge.” State v. Diggins, 836 N.W.2d 349, 355 (Minn. 2013).
Xiong offered the following reasons for the challenges. He said that he was
concerned about Juror 3’s “willingness to be here and his willingness to commit and really
focus and pay attention.” He asserted that Juror 3 “gave very short answers,” “did not seem
to be very engaged,” and appeared to be “looking off in other directions while people were
talking.” As to Juror 26, Xiong offered that he was concerned that Juror 26 was “not very

9
engaged,” did not seem “very interested in being here,” and gave “limited answers” during
questioning. He also noted that Juror 26 stat ed she watched unspecifi ed videos on social
media about forensics and expressed concern that the videos are “not exactly a great source
for watching that.”
The state argued that Xiong’s proffered re asons were inadequate and that the real
reason for the challenges was the fact Jurors 3 and 26 were Hmong. In support, the state
argued that Xiong treated Jurors 3 and 26 differently from others because other jurors who
indicated they extensively watched forensic shows were not challenged and because the
defense asked the challenged jurors the fewest questions in the group . The state asserted
that, because the defense asked almost no ques tions of Juror 3 and very limited questions
of Juror 26, the defense did not attempt to engage them. Finally, in support of its contention
the real reason for the challenges was the prospe ctive jurors’ race, the state noted that the
case involved the Hmong community, that almost all of the witnesses were Hmong, and
that both the defendant and the victim were Hmong.
The district court found that the state had met its burden of proving purposeful
discrimination with respect to Jurors 3 and 26.
1 First, the district court found that defense
counsel’s claim that she had “no idea that she had [challenge d] all three Hmong jurors,
leaving no jurors of Asian descent on the panel,” was not plausible given the circumstances
of the case. The district court reasoned that , because the underlying facts of this case

1 We agree with Xiong that th e district court appears to mislabel Jurors 3 and 26 in its
description of the facts in its order, but Xio ng does not argue this mistake as a basis for
reversal nor do we believe that it is.

10
involved an altercation between “rival Asian gang members, the victim . . . is Hmong, most
of the witnesses were Hmong, and . . . the incident occurred at a large community Hmong
festival,” it was implausible that defense “counsel would be unaware that, due to her
peremptory [challeng]es, the jury panel would now have zero people of Asian descent.”
The district court then addr essed Xiong’s proffered reasons for challenging Jurors
3 and 26 and found them inconsistent with its own observations. The district court
determined, based on its own observations of th e jurors’ demeanor and participation, that
neither juror was uninterested . It found that Juror 3 “lis tened carefully and provided
thoughtful and honest answers to the questions” and that “[t]here was nothing in his
responses or body language that indicated that he was not interested in serving as a juror.”
The district court found that Juror 26 “was engaged in the process,” that she “listened and
did her best to answer the attorney’s questio ns,” and that in tone , demeanor, and manner
of response, she was very similar to another prospective juror who was non-Asian and who
was not challenged. Further, the district court noted that both jurors indicated that they
wanted to serve as jurors. The district court observed th at, although Xiong claimed a
concern about lack of engagement, defense counsel asked “few, if any” questions to Jurors
3 and 26 on that issue and thus failed to provide a meaningful opportunity for those jurors
to engage. It determined that defense counsel’s “lack of questioning or meaningful follow-
up questions” to Jurors 3 and 26 supported the state’s argum ent that the proffered race-
neutral reasons were pretextual. The district court concluded that, under the totality of the
circumstances, Xiong’s decision to challenge Ju rors 3 and 26 “was rooted in the legally

11
impermissible belief that Hmong jurors were less favorable to the defense than non-Hmong
jurors.”
Xiong contends that the district court’s findings are contradicted by the record. He
argues that the district court’s “skepticism” that defense counsel did not realize that the
defense’s peremptory challenges left no jurors of Asian descent on the panel carries no
weight because the district court found the peremptory challenge to Juror 9 to be valid. But
the fact that the challenge to one of the three jurors wa s ultimately not found to be
discriminatory does not mean th at the district court erred by finding it not credible that
defense counsel had “no idea” that, as a result of her peremptory challenges, there were no
jurors of Asian descent left on the panel. And the district cour t could fairly consider that
lack of credibility in making its factual determination as to whether the challenges to Jurors
3 and 26 were motivated by race. Cf. Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769,
1771 (1995) (observing that, at the third step of Batson, “implausible or fantastic
justifications may (and probably will) be found to be pretexts for purposeful
discrimination”).
Xiong also argues that the district court in its findings did not actually address his
concern that Jurors 3 and 26 were not engaged or less engage d than others. We disagree.
The district court gave a detailed description of its observations during voir dire of Jurors
3 and 26—their demeanor, body language, a nd responsiveness—explaining that those
observations led it to find that both jurors were, in fact, “int erested” and “engaged.” This
case is therefore unlike Campbell, a case heavily relied upon by Xiong. There, the district
court made the irrelevant finding that the challenged juror was “pleasant, articulate, [and]

12
a bright individual” when the reasons proffere d for the challenge were that the juror was
less engaged, appeared to favor the state, a nd had formed a rapport with the state during
voir dire. 772 N.W.2d at 863, 865. To the extent that Xiong argues that the district court’s
personal observations about th e jurors are not supported by the record, we are not
persuaded. As the district court explaine d, it was present thro ughout the entire jury-
selection process and was able to observe all of the jurors.
Xiong also argues that, apart from the issue of pretext, the district court clearly erred
by determining that the real reason for the peremptory challenges was race discrimination.
He contends that the district court’s reasoni ng is “superficial” and does not explain “how
[challeng]ing Asian jurors wo uld yield a benefit to the defense.” This argument is
unavailing. The district court explained that the totality of the circumstances led it to find
that the challenges were based on race. Those circumstances included the factual
circumstances of the case, the implausibility of the explanations for the challenges, and the
lack of credibility of defense counsel’s clai m of being unaware that Xiong’s challenges
removed the last Asian jurors from the panel. Th e district court did not need to find what
specific benefit Xiong thought would be achieved by challenging Asian jurors in order to
find race discrimination in violation of Batson.
In sum, applying due deference to the district’s credibility and factual
determinations, we conclude that the district court did not cl early err by determining that
race was the real reason for the challenges to Jurors 3 and 26.
Affirmed.