                    COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Annunziata and
          Senior Judge Duff
Argued at Alexandria, Virginia


SYLVESTER GARY
                                      MEMORANDUM OPINION * BY
v.   Record No. 0720-99-2           JUDGE ROSEMARIE ANNUNZIATA
                                           MAY 2, 2000
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                       Thomas N. Nance, Judge

           William T. Linka (Boatwright & Linka, on
           brief), for appellant.

           Leah A. Darron, Assistant Attorney General
           (Mark L. Earley, Attorney General, on
           brief), for appellee.


     Sylvester Gary was convicted by a jury for the first-degree

murder of his wife, in violation of Code § 18.2-32; use of a

firearm in commission of that offense in violation of Code

§ 18.2-53.1; two counts of attempted first-degree murder in

violation of Code §§ 18.2-32 and 18.2-26; two counts of use of a

firearm in commission of those offenses; aggravated malicious

wounding of Alice Harris in violation of Code § 18.2-51.2; use

of a firearm in commission of that offense; and malicious

discharge of a firearm at an occupied dwelling in violation of

Code § 18.2-279.   He was sentenced on these convictions to serve


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
a total of 93 years in prison, and final judgment was entered on

July 20, 1998.   He appeals these convictions on the ground that

the trial court abused its discretion in ruling that the

unredacted videotape of his post-arrest interview with the

police was inadmissible.   We disagree and affirm his

convictions.

                                FACTS

     We review the evidence in the light most favorable to the

Commonwealth, the party prevailing below, giving it all

reasonable inferences fairly deducible therefrom.     See Taylor v.

Commonwealth, 31 Va. App. 54, 64, 521 S.E.2d 293, 298 (1999).

Gary and his wife, Cynthia Gary, separated in late November,

1997 after almost twenty years of marriage, a period which was

punctuated by Cynthia's separation from her husband six or seven

times, followed by reconciliations.     On the last occasion of the

couple's separation, Cynthia removed her belongings to the home

of her mother, Mabel Cunningham, located two doors from the

marital home.    Cynthia's brother, Calvin Cunningham, also

resided at the mother's home.   Neither Mabel nor Calvin

Cunningham got along well with Gary due to a 1995 confrontation,

and a peace bond against Gary had been issued at Mabel's

instance barring him from her property.    She also would not

permit him to telephone her home.   Gary blamed Mabel and Calvin

for the difficulties he had with his wife, and frequently spoke


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in derogation of them.   With reference to Calvin, he stated that

he "could kill that son-of-a-bitch."

       On the day of the incident giving rise to the charges

underlying Gary's convictions, a confrontation and argument took

place between Gary's daughter, Mary Tanner, and Cynthia.    The

confrontation came on the heels of several incidents in which

Cynthia rebuffed Gary's attempts to persuade her to return to

the marital home.

       Overhearing the confrontation between his wife and

daughter, Gary became upset, threw his hands up over his head,

and went into his house, emerging seconds later with a 12-gauge

pump action shotgun loaded with four powerful magnum shotgun

slug shells.   He pointed the gun at Cynthia and fired, killing

her.   Mabel and Calvin Cunningham stood nearby, and when they

saw Gary shoot Cynthia they ran back into their home.     Gary left

his porch, from which he had fired the gun, walked past his wife

lying on the sidewalk and down the walk to his mother-in-law's

home, and there fired three more shots, two of which penetrated

the front door and struck Alice Harris, Cynthia's sister, in the

hip.

       After his arrest, Gary was interviewed at police

headquarters by Detective Ray Williams, during which Gary made

various admissions, including the admission that he had

retrieved the shotgun from its location under the sofa in his


                                - 3 -
home and that he shot his wife.   A videotape of the interview

was made by the police.

     At the trial on the charges emanating from this incident,

Detective Williams testified to portions of Gary's confession.

The Commonwealth did not seek to introduce the videotape, and no

reference was made to it during the Commonwealth's

case-in-chief.   However, during cross-examination of Williams,

defense counsel referred to the videotape of the interview.    The

prosecutor objected to the reference on the ground of hearsay,

noting that the videotape contained crying and self-serving

statements.   The court permitted defense counsel to ask Williams

about Gary's emotional state, but denied admission of the entire

tape unless the exculpatory and self-serving portions were

redacted.

                             ANALYSIS

     Gary's claim on appeal that the court erred by refusing to

admit the unredacted videotape of his interview with police is

barred from review, because the issue was not properly preserved

in the trial court.

     Rule 5A:18 provides that "[n]o ruling of the trial court

. . . will be considered as a basis for reversal unless the

objection was stated together with the grounds therefor at the

time of the ruling, except for good cause shown or to enable

[this Court] to attain the ends of justice."   The rule serves


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"'to protect the trial court from appeals based on undisclosed

grounds, to prevent the setting of traps on appeal, to enable

the trial judge to rule intelligently, and to avoid unnecessary

reversals and mistrials.'"    Jimenez v. Commonwealth, 241 Va.

244, 248-49, 402 S.E.2d 678, 680 (1991) (quoting Fisher v.

Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52 (1988)).     When

an objection is sustained and evidence is rejected, the

proponent of the evidence must make a proffer of the excluded

evidence to enable the appellate court to review the claimed

error under the required harmless error analysis.    See Brown v.

Commonwealth, 246 Va. 460, 465, 437 S.E.2d 563, 565 (1993)

(citation omitted).   In the absence of the required proffer, the

assigned error will not be considered on appeal.    See Williams

v. Harrison, 255 Va. 272, 277, 497 S.E.2d 467, 471 (1998)

(citation omitted).

     In the case before us, Gary states no objection to the

court's ultimate rulings. 1   Furthermore, he agreed that he would


     1
       When the trial court instructed defense counsel that it
would permit only a redacted version of the videotape to be
introduced, the following colloquy occurred:

          [DEFENSE COUNSEL]: I can't understand why
          the court wants me to redact. I can do it
          at lunch. I think that the entire statement
          [comes in]. . . . [W]e can't simply divorce
          the statements from his bodily reaction and
          body language . . . .

          THE COURT: I think you can ask him all
          about that. But as far as your case, do

                                - 5 -
redact the videotape during lunch.     See Batts v. Commonwealth,

30 Va. App. 1, 11, 515 S.E.2d 307, 312 (1999) ("[A] defendant,

having agreed upon the action taken by the trial court, should

not be allowed to assume an inconsistent position.    No litigant,

even a defendant in a criminal case, will be permitted to

approbate and reprobate -- to invite error . . . and then to

take advantage of the situation created by his own wrong."

(citations omitted)).   Finally, Gary failed to offer the

videotape and made no record of the evidence he was ultimately

precluded from presenting.   Absent a complete record, the trial

court's decision must be affirmed.     See White v. Morano, 249 Va.

27, 30, 452 S.E.2d 856, 858 (1995) (citing Woods v. R. D. Hunt &

Son, Inc., 207 Va. 281, 287, 148 S.E.2d 779, 783 (1966)).

     Furthermore, we find no basis for concluding that the ends

of justice require this Court to review the claimed error.     See

Atkins v. Commonwealth, 257 Va. 160, 175-76, 510 S.E.2d 445, 455

(1999); Blaylock v. Commonwealth, 26 Va. App. 579, 593-94, 496

S.E.2d 97, 104 (1998); cf. Pierce v. Commonwealth, 2 Va. App.


          what you want to do with the tape; but if
          you start to put on your case, you're going
          to have the same problem. You know, it's
          exculpatory information that's . . .
          inadmissible . . . the jury doesn't know
          that he's been video taped . . . . So . . .
          you know what the law is. You can do
          whatever you need to do.

          [DEFENSE COUNSEL]:   Yes, sir.


                               - 6 -
383, 388-91, 345 S.E.2d 1, 3-5 (1986) (holding that a portion of

a confession irrelevant to the charged offense need not be

introduced into evidence).

     For the foregoing reasons, we affirm the judgment of the

trial court.

                                                       Affirmed.




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