COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued by teleconference 

ROGER KYLE DAVIS, S/K/A 

 ROGER KYLE DAVIS, SR. 

 MEMORANDUM OPINION* BY 

v. Record No. 2970-96-3 JUDGE LARRY G. ELDER 

 DECEMBER 9, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Mosby G. Perrow, III, Judge 

 David D. Embrey for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 Roger Kyle Davis (appellant) appeals his convictions of two 

counts of robbery, four counts of abduction, and six counts of 

using a firearm in the commission of a felony. He contends that 

the trial court erred when it (1) ruled that the Commonwealth's 

peremptory strikes of African-Americans from the jury panel did 

not violate the Equal Protection Clause and (2) granted the 

Commonwealth's request to instruct the jury regarding flight as 

evidence of guilt. For the reasons that follow, we affirm. 

 I. 

EQUAL PROTECTION OBJECTION 

TO THE COMMONWEALTH'S PEREMPTORY STRIKES 

 The Equal Protection Clause prohibits the parties in a 

criminal proceeding from using peremptory challenges to strike 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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individual prospective jurors from a jury panel "solely on 

account of their race." Batson v. Kentucky, 476 U.S. 79, 89, 96, 

106 S. Ct. 1712, 1719, 1723, 90 L.Ed.2d 69 (1986); see also

Georgia v. McCollum, 505 U.S. 42, 55, 112 S. Ct. 2348, 2357, 120 

L.Ed.2d 33 (1992). When one party objects to the other party's 

peremptory challenges on equal protection grounds, the trial 

court employs a three-step process to determine if a "Batson

violation" has occurred. See Purkett v. Elem, 514 U.S. 765, 767, 

115 S. Ct. 1769, 1770-71, 131 L.Ed.2d 834 (1995); see also Buck 

v. Commonwealth, 247 Va. 449, 450-51, 443 S.E.2d 414, 415 (1994). 

 First, the opponent of a peremptory challenge must establish a 

prima facie case of racial discrimination, i.e., "that [the other 

party] has exercised peremptory challenges on the basis of race." 

Hernandez v. New York, 500 U.S. 352, 358, 111 S. Ct. 1859, 1866, 

114 L.Ed.2d 395 (1991) (plurality opinion); see also Purkett, 514 

U.S. at 767, 115 S. Ct. at 1770; Buck, 247 Va. at 450-51, 443 

S.E.2d at 415. 

 Second, if a prima facie case is established, "the burden of 

production shifts to the proponent of the strike to come forward 

with a race-neutral explanation." Purkett, 514 U.S. at 767, 115 

S. Ct. at 1770; see also Buck, 247 Va. at 451, 443 S.E.2d at 415. 

 In order to satisfy step two of the three-step Batson inquiry, 

the striking party's explanation need only be race-neutral and 

need not be either sensible or "related to the particular case to 

be tried." Purkett, 514 U.S. at 767-69, 115 S. Ct. at 1771 (also 
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stating that the prosecutor's race-neutral explanation satisfies 

step two even if it is unpersuasive, "silly or superstitious" or 

"implausible or fantastic"). 

 "At this [second] step of the inquiry, the 

issue is the facial validity of the . . . 

explanation [of the person who exercised the 

strike]. Unless a discriminatory intent is 

inherent in the prosecutor's explanation, the 

reason offered will be deemed race neutral." 

Purkett, 514 U.S. at 768, 115 S. Ct. at 1771 (quoting Hernandez, 

500 U.S. at 360, 111 S. Ct. at 1866 (plurality opinion); see also

id. at 374, 111 S. Ct. at 1874 (O'Connor, J., concurring in 

judgment)). 

 Third, "[i]f a race-neutral explanation is tendered, the 

trial court must then decide . . . whether the opponent of the 

strike has proved purposeful racial discrimination." Purkett, 

514 U.S. at 767, 115 S. Ct. at 1770-71; see also Buck, 247 Va. at 

451, 443 S.E.2d at 415. The opponent of the strike always bears 

the burden of proving that it was the result of purposeful 

discrimination, and the intent of the striking party may be 

established by circumstantial evidence. See Purkett, 514 U.S. at 

768, 115 S. Ct. at 1771; Batson, 476 U.S. at 93, 106 S. Ct. at 

1721. 

 Whether or not a party exercised a peremptory strike of a 

juror with a discriminatory intent is a question of fact. See
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Batson, 476 U.S. at 98 n.21, 106 S. Ct. at 1724 n.21; see also

Barksdale v. Commonwealth, 17 Va. App. 456, 460, 438 S.E.2d 761, 

763 (1993) (en banc). As such, this factual finding is entitled 

to "great deference" and will not be disturbed unless clearly 

erroneous. Batson, 476 U.S. at 98 n.21, 106 S. Ct. at 1724 n.21; 

Hernandez, 500 U.S. at 364-65, 369, 111 S. Ct. at 1868-69, 1871; 

id. at 372, 111 S. Ct. at 1873 (O'Connor, J., concurring in 

judgment) (agreeing with the standard of review set forth in the 

plurality opinion); see also Buck, 247 Va. at 451, 443 S.E.2d at 

415; Barksdale, 17 Va. App. at 460, 438 S.E.2d at 763-64. 

 We hold that the trial court's ruling that the 

Commonwealth's peremptory strikes were not the result of 

purposeful racial discrimination was not clearly erroneous. 

Because the Commonwealth offered its reasons for its strikes, we 

need not consider whether appellant established a prima facie

case of discrimination. See Buck, 247 Va. at 451, 443 S.E.2d at 

415; Faison v. Hudson, 243 Va. 397, 402, 417 S.E.2d 305, 308 

(1992). In addition, the record supports the trial court's 

conclusion that the Commonwealth's explanation for its strikes 

was race-neutral. The Commonwealth's attorney stated that she 

struck the three African-Americans from the panel because they 

had prior experience with the criminal justice system in 

Lynchburg that might have fostered a bias against the 

Commonwealth. Her explanation did not indicate that race played 

any part in her decision to strike these particular jurors. In 
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fact all individuals with prior criminal charges or convictions 

were stricken, including one white male. Cf. Carter v. 

Commonwealth, 16 Va. App. 118, 124, 428 S.E.2d 34, 40 (1993) 

(holding that striking a juror because the Commonwealth's 

attorney's office had previously prosecuted some of her relatives 

was a race-neutral explanation). Finally, the trial court's 

conclusion that the Commonwealth's peremptory strikes were not 

based on race was supported by credible evidence, namely the 

Commonwealth's attorney's explanation for her strikes. After 

personally observing the proceedings, the trial court determined 

that the Commonwealth's attorney's explanation was credible, and 

the record does not indicate that this determination was clearly 

erroneous. See Barksdale, 17 Va. App. at 459-60, 438 S.E.2d at 

764 (stating that "evaluation of the . . . state of mind [of the 

party attempting to offer a race-neutral explanation for a 

peremptory strike] based on demeanor and credibility lies 

'peculiarly within a trial judge's province.'" (citation 

omitted)). 

 II. 

 JURY INSTRUCTION REGARDING FLIGHT AS EVIDENCE OF GUILT 

 Appellant contends that the trial court erred when it 

granted the Commonwealth's request to instruct the jury regarding 

flight as evidence of guilt. He argues that the wording of the 

instruction was confusing and prejudicial and that the record did 

not contain sufficient evidence of flight to warrant giving the 
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instruction. We disagree. 

 Initially, we hold that Rule 5A:18 bars us from considering 

appellant's argument regarding the wording of the trial court's 

instruction on flight. Appellant argues that the instruction was 

improper because it did not expressly state that evidence of 

flight does not create a presumption of guilt. However, the 

record indicates that appellant did not object to the 

Commonwealth's instruction on this ground before the trial court, 

and we will not consider this argument for the first time on 

appeal. 

 Next we hold that the evidence was sufficient to support the 

trial court's decision to instruct the jury on flight as evidence 

of guilt. "A reviewing court's responsibility in reviewing jury 

instructions is 'to see that the law has been clearly stated and 

that the instructions cover all issues which the evidence fairly 

raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 

S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 

503, 290 S.E.2d 856, 858 (1982)). "'Both the Commonwealth and 

the defendant are entitled to appropriate instructions to the 

jury of the law applicable to each version of the case, provided 

such instructions are based upon the evidence adduced.'" Stewart 

v. Commonwealth, 10 Va. App. 563, 570, 394 S.E.2d 509, 514 (1990) 

(quoting Simms v. Commonwealth, 2 Va. App. 614, 616, 346 S.E.2d 

734, 735 (1986)). "The evidence to support an instruction 'must 

be more than a scintilla.'" Frye v. Commonwealth, 231 Va. 370, 
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388, 345 S.E.2d 267, 280 (1986). When determining whether 

sufficient evidence warranted a particular instruction, we view 

the evidence in the light most favorable to the party offering 

the instruction. See Foster v. Commonwealth, 13 Va. App. 380, 

383, 412 S.E.2d 198, 200 (1991). 

 It is well established that "[f]light following the 

commission of a crime is evidence of guilt, and the jury may be 

so instructed." Clagett v. Commonwealth, 252 Va. 79, 93, 472 

S.E.2d 263, 271 (1996) (citing Boykins v. Commonwealth, 210 Va. 

309, 313-14, 170 S.E.2d 771, 774 (1969); Carson v. Commonwealth, 

188 Va. 398, 408, 49 S.E.2d 704, 708 (1948)), cert. denied, 

U.S. , 117 S. Ct. 972, 136 L.Ed.2d 856 (1997). 

 Flight is not limited to physically leaving a 

jurisdiction for an extended period, but 

includes the taking of any action, even of 

short duration, intended to disguise one's 

identity and distance oneself from the crime. 

Id. at 93-94, 472 S.E.2d at 271 (citing Edmondson v. 

Commonwealth, 248 Va. 388, 390-91, 448 S.E.2d 635, 637 (1994)). 

 When viewed in the light most favorable to the Commonwealth, 

"more than a scintilla" of evidence supported its theory that 

appellant took action to disguise his identity and distance 

himself from the robbery on the night of the crime. Woods 

testified that appellant wore two sets of clothes when he 

committed the robbery and that he removed the outer layer of 

clothes after leaving the crime scene "to elude the policemen." 

In addition, the testimony of Woods and Investigator Adams 
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indicated that, when the police arrived at the residence of 

appellant's wife later that night, appellant prevented his wife 

from answering the door by choking her. 

 For the foregoing reasons, we affirm the convictions of two 

counts of robbery, four counts of abduction, and six counts of 

using a firearm in the commission of a felony. 

 Affirmed.