COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton , Judges Kelsey and McClanahan Argued at Salem, Virginia

DAVID EUGENE HUFF MEMORANDUM OPINION * BY v. Record No. 2371-09-3 CHIEF JUDGE WALTER S. FELTON, JR. OCTOBER 19, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. Strauss, Judge Glenn L. Berger (Berger & Thornhill, on brief), for appellant. Robert H. Anderson, III, Seni or Assistant Attorney General (Kenneth T. Cuccinelli, II , Attorney General, on brief), for appellee.

David Eugene Huff (appellant) was convicted by a jury of solicitation to commit murder in violation of Code § 18.2-29. On appeal he asserts that the trial court erred in denying his

Batson 1 motion, arguing that the Commonwealth uncons titutionally exercised its peremptory challenges to remove four men from the venire . For the following reasons, we disagree and

affirm the conviction. Because the assigned error relates solely to procedural aspects of the proceeding below, we recite only those facts necessary to resolve the issue present in this appeal. Appellant was charged with soliciting a fellow jail inmate to kill his ex-wife. At trial, the Commonwealth and appellant each peremptorily struck members of the venire. The Commonwe alth struck four men

from the venire. The record does not reflect whic h members appellant struck from the venire.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Batson v. Kentucky , 476 U.S. 79 (1986).- 2 - After the parties completed their respective peremp tory strikes, the jury was composed of seven men and five women. Appellant objected to the Commonwealth’s peremptory strikes, arguing that they were discriminator y. Appellant’s counsel argued:

We would submit that this is a case involving a man who is being tried for an offense allegedly against a woman, and we would submit that their decision to strike only men from the jury panel is suspect, and we object to their el imination of only men from the jury panel. The Commonwealth then provided the trial court with gender-neutral reasons for its striking each of the four men from the venire. Appellant made no additional comments or arguments regarding the Commonwealth’s expl anations for its peremptory strikes. The trial court found the Commonwealth’s peremptory strikes were not discriminatory. Appellant made no further objections concerning the make -up of the jury panel. “‘On appellate review, the tria l court’s conclusion regarding whether reasons given for the strikes are [non-discriminatory] is entitled to grea t deference, and that determination will not be reversed on appeal unless it is clearly erroneous.’” Avent v. Commonwealth , 279 Va. 175, 196, 688 S.E.2d 244, 256 (2010) (quoting Jackson v. Commonwealth , 266 Va. 423, 437, 587 S.E.2d 532, 543 (2003)). “When a defendant raises a challenge based on Batson , he must make a prima facie showing that the peremp tory strike was made on [prohibited discriminatory] groun ds. At that point, the burden shifts to the prosecution to produce [non-discriminatory] explanations for striking the ju ror. The defendant may then provide reasons why the pros ecution’s explanations were pretextual and the stri kes were discriminatory regardless of the prosecution’s stated explanations . Whether the defendant has carried his burden of proving pur poseful discrimination in the selection of the jury is then a matter to be decided by the trial court.” Id. at 196-97, 688 S.E.2d at 256 (quoting Jackson , 266 Va. at 436, 587 S.E.2d at 542). These principles apply to discri mination based on gender. J.E.B. v. Alabama ex. rel. T.B. , 511 U.S.- 3 - 127, 140 (1994) (“Discriminatory use of peremptory challenges may create the impression that the judicial system has acquies ced in suppressing full participa tion by one gender or that the ‘deck has been stacked’ in favor of one side.”). “Clearly, Batson ’s ‘proof structure’ requires a defe ndant, confronted with a facially neutral explanation for a prosecutor’ s peremptory strikes, ‘to show both that these reasons were merely pretextual and that race [or gender] was the real reason.’” Robertson v. Commonwealth , 18 Va. App. 635, 638, 445 S.E.2d 713, 715 (1994) (quoting United States v. McMillon , 14 F.3d 948, 953 (4th Cir. 1994)). In Robertson , the defendant argued on appeal that the Commonwealth’s explanations for striking venirepersons were “ unsupported or contradicted by

the record.” Id. at 640, 445 S.E.2d at 716. However, because Robertson did not present those arguments to the trial court, we concluded that Rule 5A:18 barred our consideration of that

claimed error and concluded that those contentions by Robertson w ould not be considered for the first time on appeal. Id. Similarly, in Avent , the Supreme Court noted that “it was incumbent upon Avent to demonstrate that the reasons a dvanced by the Commonwealth for striking these potential jurors ‘were purely a pretext for unconstitutional discrimination.’” 279 Va. at 197, 688 S.E.2d at 256 (quoting Juniper v. Commonwealth , 271 Va. 362, 407, 626 S.E.2d 383, 412 (2006)). Here, appellant argues for the first time on appeal that the Commonwealth’s explanations for its peremptory strikes were “partial and va gue.” However, appellant did not present the arguments he makes on appeal to the tr ial court. Like the defendant in Avent , appellant “did not offer any evidence or argument [to the trial cour t] that the Commonwealth’s proffered rationale behind the [four] strikes challenged in this appeal were pretextual.” Id. We will not consider for the first time on appeal appellant’s contentions of trial court error not addressed by the trial court. Rule 5A:18 (“No ruling of the trial court . . . will be considered as a basis for reversal- 4 - unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of A ppeals to attain the ends of justice.”). 2 Appellant does not argue that we should invoke either the good cause or ends of justice exceptions to Rule 5A:18. See Redman v. Commonwealth , 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). The Court will not c onsider Rule 5A:18 exceptions sua sponte

. Edwards v.

Commonwealth , 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc). Accordingly, we conclude from the record on appeal that the trial court did not err in denying appellant’s Batson motion and we affirm the conviction.

Affirmed.

2 Effective July 1, 2010, Rule 5A:18 was revise d to state that “[n] o ruling of the trial court . . . will be considered as a basis for reve rsal unless an objection wa s stated with reasonable certainty at the time of the ruling . . . .” Because the proceedings below were completed prior to this revision taking effect, we will rely on the language of Rule 5A:18 that was then in effect.