Nathan Tashombe Younger v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 17, 2023
• Docket: 1996223
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Chaney and Senior Judge Annunziata UNPUBLISHED

NATHAN TASHOMBE YOUNGER MEMORANDUM OPINION* v. Record No. 1996-22-3 PER CURIAM OCTOBER 17, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Stacey W. Moreau, Judge

(Jim D. Childress, III; Childress Law Firm, PC, on brief), for appellant.

(Jason S. Miyares, Attorney General; Timothy J. Huffstutter, Assistant Attorney General, on brief), for appellee.

Nathan Tashombe Younger appeals his convictions, in a jury trial, of three counts of

indecent liberties and three counts of carnal knowledge of L.A.F., a 13-year-old child, violating

Code §§ 18.2-370 and -63. He contends that the trial court erred in failing to strike for cause one

of the members of the jury pool. After examining the briefs and record in this case, the panel

unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit,”

and we affirm the judgment of the trial court. Code § 17.1-403(ii)(a); Rule 5A:27(a).

BACKGROUND

Younger was indicted in Pittsylvania County for three counts of indecent liberties and

three counts of carnal knowledge of L.A.F., a 13-year-old child, violating Code §§ 18.2-370

and -63. During voir dire of the jury, Juror 14 initially indicated difficulty with being impartial

* This opinion is not designated for publication. See Code § 17.1-413(A). due to the nature of the charges, but when asked to raise his1 card if he could not apply a

presumption of innocence, Juror 14’s card remained down. Younger made no motion to strike

Juror 14 for cause. After voir dire, the trial court struck jurors “by lot” before the parties used

peremptory strikes; Juror 14 was one of the jurors removed from the jury pool. The empaneled

jury then found Younger guilty of all counts. The trial court entered a final order on December

19, 2022, sentencing Younger to a collective 45 years of incarceration with 30 years suspended.

This appeal followed.

ANALYSIS

Younger argues the trial court erred in not striking Juror 14 for cause on its own motion.

He acknowledges that the error was not preserved under Rule 5A:18, but he invokes the ends of

justice exception and asks this Court to consider the issue.

“No ruling of the trial court . . . will be considered as a basis for reversal unless an

objection was stated with reasonable certainty at the time of the ruling, except for good cause

shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “The purpose of Rule

5A:18 is ‘to ensure that the trial court and opposing party are given the opportunity to

intelligently address, examine, and resolve issues in the trial court, thus avoiding unnecessary

appeals.’” Friedman v. Smith, 68 Va. App. 529, 544 (2018) (quoting Andrews v.

Commonwealth, 37 Va. App. 479, 493 (2002)). “Rule 5A:18 requires a litigant to articulate an

objection with specificity ‘so that the trial judge . . . know[s] the particular point being made in

time to do something about it.’” Hicks v. Commonwealth, 71 Va. App. 255, 266 (2019)

(alterations in original) (quoting Thomas v. Commonwealth, 44 Va. App. 741, 750, adopted upon

reh’g en banc, 45 Va. App. 811 (2005)).

1 For purposes of this opinion, we refer to Juror 14 using the pronoun “he.” -2- This Court can review non-preserved errors “to attain the ends of justice.” Rule 5A:18.

“The ends of justice exception is narrow and is to be used sparingly, and [it] applies only in the

extraordinary situation where a miscarriage of justice has occurred.” Pulley v. Commonwealth,

74 Va. App. 104, 126 (2021) (alteration in original) (internal quotation marks omitted) (quoting

Holt v. Commonwealth, 66 Va. App. 199, 209 (2016) (en banc)). “The burden of establishing a

manifest injustice is a heavy one, and it rests with the appellant.” Holt, 66 Va. App. at 210

(quoting Brittle v. Commonwealth, 54 Va. App. 505, 514 (2009)). To do so, the appellant “must

demonstrate that he or she was convicted for conduct that was not a criminal offense or the

record must affirmatively prove that an element of the offense did not occur.” Id. (quoting

Redman v. Commonwealth, 25 Va. App. 215, 222 (1997)).

Younger fails to argue or demonstrate that he was convicted for conduct “that was not a

criminal offense” or that the record “affirmatively prove[s] that an element of the offense did not

occur.” Id. He only argues that the trial court’s failure to remove a juror sua sponte is reversible

error, while also acknowledging that the trial court did in fact strike that juror before Younger used

any peremptory strikes. Younger therefore fails to establish a manifest injustice, and this is not one

of the rare instances where we invoke the ends of justice exception to consider his argument on

appeal.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

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