concurring in part, specially concurring in part, and dissenting in part.
¶ 26 I disagree with the majority’s conclusion that the trial court may have clearly erred when it denied defendant’s Batson challenge, and, as a result, that we should remand this case for further factual findings. I therefore respectfully dissent from that part of the majority’s opinion.
127 I also disagree with the majority’s decision to address defendant’s unpreserved facial constitutional challenge to the stalking statute. I therefore respectfully specially concur with that part of the majority’s opinion,
¶ 28 Last, I concur with the part of the majority opinion that declines to review defendant’s unpreserved as-applied constitutional challenge to the stalking statute.
I. Batson
A. The Second Step
¶ 29 A prosecutor’s gender-neutral reasons for a peremptory challenge may “often invoke a juror’s demeanor (e.g., nervousness, inattention).” See Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). When such reasons are given, a trial court is required to evaluate the prosecutor’s demeanor and credibility in light of the court’s observations of the juror’s demeanor and credibility. Id.
¶30 In explaining his peremptory challenges, the prosecutor in this ease provided gender-neutral reasons for them. For-example, he stated that certain female jurors were not interested in the proceedings; one may have been sick because she was coughing; several were in college; they seemed young.
¶ 31 These reasons are not necessarily in-' sightful or logically connected to the job that a juror has to do. But they do' not have to be insightful or logical as long as they are not indicative of purposeful gender discrimination. See Valdez v. People, 966 P.2d 587, 590 (Colo.1998) (noting that race-neutral reasons do not have to be “persuasive or even plausible”).
¶ 32 It is unsettling that a prosecutor who was experienced enough to be trying felony cases did not realize that Batson includes gender within its scope. This has been settled law for twenty years. See J.E.B. v. Alabama, 511 U.S. 127, 128-29, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). But a prosecutor’s ignorance of the law does not automatically equate to gender bias. Indeed, the exercise of a challenge for cause may be based on “mistake, ignorance, or idiosyncra-cy[,]” as long it is gender neutral. See Jones v. State, 249 Ga.App. 327, 548 S.E.2d 75, 76 (2001).
B. The Third Step
¶ 33 In applying the third step of Batson, the trial court was required to answer one question: Did defendant establish, by a preponderance of the evidence, that the prosecutor exercised a peremptory challenge to remove one or more potential jurors because of her sex? See Valdez, 966 P.2d at 590.
¶ 34 Because this third step requires us to consider a trial court’s factual findings, we accord those findings due deference, and we review them for clear error. Id. This means that those findings bind us if the record supports them, People in the Interest of J.C.S., 169. P.3d 240, 243 (Colo.App.2007); People v. Trujillo, 15 P.3d 1104, 1108 (Colo.App.2000), disagreed with on other grounds *277by Craig v. Carlson, 161 P.3d 648, 656 n. 3 (Colo.2007).
¶ 36 Giving deference to the trial court on the issue of a prosecutor’s discriminatory intent “makes particular sense in this context because .. . the finding ‘largely will turn on an evaluation of credibility.’ ” Hernandez v. New York, 500 U.S. 362, 365, 111 S.Ct. 1859, 114 L.Ed.2d 396 (1991) (plurality opinion) (quoting Batson v. Kentucky, 476 U.S. 79, 98 n. 21, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). As an appellate court, we are not “as well positioned as the trial court to make such credibility determinations,” so we defer to the trial court’s findings unless there are “exceptional circumstances.” People v. Robinson, 187 P.3d 1166, 1173-74 (Colo.App.2008).
¶ 36 The ultimate and “decisive” third-step question is whether the prosecutor’s gender-neutral “explanation for [the peremptory challenges] should be believed.” See Hernandez, 500 U.S. at 366, 111 S.Ct. 1859. “There will seldom be much evidence” on this issue, and the “best evidence often will be the demeanor of the attorney who exercises the challenge[s].” Id. The “evaluation of the prosecutor’s state of mind based on demean- or and credibility lies ‘peculiarly within a trial judge’s province.’ ” Id. (quoting in part Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)).
¶ 37 It is obvious that the trial court took this issue seriously. At one point, while making its findings, the court observed that “if either side were systematically or intentionally or purposefully attempting to discriminate against jurors because of ... gender[,]” such conduct would be “unacceptable in this courtroom.”
¶ 38 The court recognized that it was required to “look at ... factors which can be subtle.” And the court observed that, although a series of peremptory challenges used to strike -prospective female jurors “can be” made for a discriminatory purpose, it may not “necessarily” be made for such a purpose.
¶39 The court then correctly placed the burden of proof on defendant to show purposeful discrimination. See Valdez, 966 P.2d at 590. And, although the court had “concerns,” it nonetheless found that defendant had “not established [that] there was purposeful discrimination.”
¶ 40 The trial court could have made more precise findings and explained how it viewed the jurors’ - and the-' prosecutor’s credibility and-demeanor. ' See Snyder, 552 U.S. at 477, 128 S.Ct. 1203; Hernandez, 500 U.S. at 365, 111 S.Ct. 1869. But. it is my view that the court was clear enough .-in this regard because it found that defendant had -not satisfied her burden of proof. See People v. Phillips, 2012 COA 176, ¶ 168, 315 P.3d 136 (“[T]hé trial court fulfilled'the requirements of the law, although it did not rule explicitly on whether the prosecutor’s explanations were believable.”); People v. O’Shaughnessy, 275 P.3d 687, 691 (Colo.App.2010) (rejecting the defendant’s argument that “the trial court was required to rule explicitly on whether the race-neutral reasons given for the strikes were believable”),- aff'd, 2012 CO 9, 269 P.3d 1233; Robinson, 187 P.3d at 1174 (“The district court obviously (albeit implicitly) found the prosecutor’s stated reasons credible, and we cannot say on this record that the court clearly erred in doing so.”); see also Miller-El v. Cockrell, 537 U.S. 322, 347, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“We adhere to the proposition that a state court, need not make detailed findings addressing all the evidence before it.”).
¶ 41 Opinions from federal circuit courts of appeal take a similar position to the one I take here. See Taylor v. Roper, 677 F.3d 848, 856 (8th Cir.2009) (“The trial court found that the reasons stated by the prosecutor were race-neutral, and overruled [the defendant’s Batson] objection. The court’s ruling includes an implicit finding that the prosecutor’s explanation was credible, and that the strike was not motivated by purposeful discrimination.”); United States v. Corley, 519 F.3d 716, 723 (7th Cir.2008) (“Although it would be more .helpful for district courts in these Batson cases ;to explicitly make credibility determinations, -and perhaps state on the record the basis for rejecting the comparisons with the similarly-situated jurors, there is no ambiguity in this record, The court accepted the government’s argu*278ment, that determination is supported by the record, and it is not clearly erroneous.”); Hightower v. Terry, 459 F.3d 1067, 1072 n. 9 (11th Cir.2006) (“We may ... make the common sense judgment — in light of ... the trial court’s ultimate ruling — that the trial court implicitly found the ... race-neutral explanations to be credible, thereby completing step three of the Batson inquiry.” (internal quotation marks omitted)); Messiah v. Duncan, 435 F.3d 186, 198 (2d Cir.2006) (“As long as a trial judge affords the parties a reasonable opportunity to make their respective records, he may express his Batson ruling on the credibility of a proffered race-neutral explanation in the form of a clear rejection or acceptance of a Batson challenge.”); United States v. Castorena-Jaime, 285 F.3d 916, 929-30 (10th Cir.2002) (“Notwithstanding the district court’s failure to make express findings on the record ... the district court’s ultimate conclusion on discriminatory intent was not clearly erroneous .... The district court’s ruling indicates it implicitly found the prosecutor credible.”).
¶ 42 Opinions from state appellate courts also take a similar position. See People v. Reynoso, 81 Cal.4th 903, 3 Cal.Rptr.3d 769, 74 P.3d 852, 869 (2003) (A trial court is not required “to make explicit and detailed findings for the record in every instance in which the court determines to credit a prosecutor’s demeanor-based reasons for exercising a peremptory challenge.”); State v. Angelo, 287 Kan. 262, 197 P.3d 337; 350 (2008) (‘We agree that the better practice is for the trial court to identify and follow each of the Bat-son steps in its analysis and, in the third step, to clearly articulate something like ‘the defendant has not carried his burden of proving purposeful discrimination.’ Nevertheless, we conclude that [the defendant] has not shown that the trial court failed to follow Batson in rejecting his challenge.”).
¶ 43 There are opinions that take a different approach. See United States v. McAllister, 693 F.3d 572, 581 (6th Cir.2012)(appellate court had no basis to defer to the trial court’s ruling on Batson’s third step because the trial court did not provide an explicit analysis of the prosecutor’s credibility);
¶ 44 The trial court’s unambiguous finding means only one thing to me in the context of this ease: The trial court implicitly chose to believe the prosecutor, which was a choice that was “peculiarly within [its] province.” See Hernandez, 500 U.S. at 365, 111 S.Ct. 1859. I therefore do not see this case as presenting the sort of “exceptional circumstances” that undercut the strong presumption that we should defer to that finding. See Robinson, 187 P.3d at 1173-74.
¶ 45 In light of my conclusion that the trial court’s order is clear enough that we can review it, I also submit .that there may not be a “realistic possibility that this subtle question of causation could be profitably explored further on remand.” See Snyder, 552 U.S. at 486, 128 S.Ct. 1203. It has been over a year and a 'half since the trial court presided over defendant’s trial. The trial court’s attention has understandably shifted to many cases since then.
¶46 Our trial courts work on the front lines of the legal system. They are literally in the middle of litigation. They see and héar jurors, witnesses, and attorneys almost every day.
. ¶ 47 They see and hear things that we on the appellate courts cannot see or hear. They see how people act. They notice their facial expressions. They hear the tone in people’s voices. They watch when someone struggles to answer a question, or when someone answers directly, firmly, and immediately. They observe body language. They can tell when someone appears inattentive or alert. They frequently make decisions about people’s credibility. Batson’s third step tasks them with considering these sorts of factors when deciding whether they believe prosecutors’ explanations of the reasons for their peremptory challenges.
¶ 48 The trial court obviously thought that this issue was close because it admitted that it had “concerns.” But, in the end, it made the call that it thought was right. I respectfully submit that we should not second-guess that call because we have not seen what the trial court saw, or heard what the trial court heard. See Robinson, 187 P.3d at 1173-74.
*279II. Facial Attack on the Constitutionality of the Stalking Statute
¶ 49 It is my view that appellate courts should handle comparatively few legal issues for the first time in any criminal case. See People v. Tillery, 231 P.3d 36, 65-66 (Colo.App.2009)(Bernard, J., specially concurring), aff'd on other grounds sub nom. People v. Simon, 266 P.3d 1099 (Colo.2011). I therefore would not address unpreserved facial attacks on the constitutionality of statutes, such as the one here. See People v. Carrillo, 2013 COA 3, ¶49, 297 P.3d 1028 (Bernard, J., specially concurring) (citing People v. Lesney, 865 P.2d 1364, 1366 (Colo. 1993), and People v. Cagle, 751 P.2d 614, 619 (Colo.1988)); Tillery, 231 P.3d at 55; but see People v. Houser, 2013 COA 11, ¶ 35, 837 P.3d 1238 (concluding that the court of appeals should, “as a matter of discretion, take up an unpreserved challenge to the constitutionality of a statute, but only where doing so would clearly further judicial economy”); People v. Allman, 2012 COA 212, ¶¶ 16-17, 321 P.3d 557 (division chose to “exercise [its] discretion [to] reach defendant’s unpreserved vagueness challenge” to a statute); People v. Greer, 262 P.3d 920, 937-39 (Colo.App.2011) (J. Jones, J., specially concurring) (concluding that the court of appeals should apply plain error analysis to certain unpreserved constitutional arguments).
¶ 50 By the time that the first unpreserved attack on the facial constitutionality of a statute arrives to us on appeal, trial courts may have heard several permutations of the argument. They see how the argument plays out over time and in different circumstances. They often have a richer understanding of the argument than we do because of that fuller context and because they will probably have to apply the statute repeatedly in future eases, perhaps as soon as the next case in front of them.
¶ 51 For these reasons, I prefer that trial courts have the first opportunity to evaluate facial constitutional attacks on statutes. Courts in other states have reached the same conclusion. See Smith v. State, 363 Ark. 456, 215 S.W.3d 626, 627 (2005); Marks v. State, 280 Ga. 70, 623 S.E.2d 504, 509 (2005); State v. Schleicher, 672 N.W.2d 550, 555 (Minn. 2003); State v. Newlon, 216 S.W.3d 180, 184 (Mo.Ct.App.2007); People v. Snyder, 91 A.D.3d 1206, 937 N.Y.S.2d 429, 432 n. 2 (2012); State v. Lloyd, 354 N.C., 76, 552 S.E.2d 596, 607 (2001); Commonwealth v. Pestinikas, 421 Pa.Super. 371, 617 A.2d 1339, 1345 n. 3 (1992); but see, e.g., State v. Golding, 213 Conn. 233, 567 A.2d 823, 827-28 (1989) (court sets out circumstances in which it will review unpreserved constitutional claims);. State v. Rhinehart, 167 P.3d 1046, 1050 (Utah 2007) (court will address unpreserved attack on the constitutionality of a statute if there is “plain error or exceptional circumstances”).