Warren H. Brandon v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: January 11, 2000
• Docket: 2434982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Coleman and Bray Argued at Richmond, Virginia

WARREN H. BRANDON MEMORANDUM OPINION * BY v. Record No. 2434-98-2 JUDGE RICHARD S. BRAY JANUARY 11, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge

Robert S. Ganey for appellant.

Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Warren Brandon (defendant) was convicted by a jury on

indictments charging forcible sodomy and two counts of taking

indecent liberties with a minor, violations of Code §§ 18.2-67.1

and 18.2-370, respectively. On appeal, he argues that the trial

court erroneously (1) allowed the Commonwealth to reference during

opening statement, and later introduce, evidence of other sexual

misconduct and related offenses by defendant, (2) permitted the

Commonwealth to pose leading questions of the child/victim, and

(3) imposed the sentences fixed by the jury. Defendant also

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. challenges the sufficiency of the evidence to support the

convictions. 1 Finding no error, we affirm the trial court.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

I.

At the conclusion of Commonwealth's opening statement,

defendant moved the court to declare a mistrial, arguing that the

Commonwealth had improperly ascribed to defendant numerous

criminal acts which were "not part of the indictments and charges"

before the court. He complains on appeal both that the court

denied the motion and allowed the Commonwealth to later introduce

evidence of such "additional bad acts" at trial. 2

"Making a timely motion for mistrial means making the motion

'when the objectionable words were spoken.'" Yeatts v.

Commonwealth, 242 Va. 121, 137, 410 S.E.2d 254, 264 (1991)

(citation omitted), cert. denied, 503 U.S. 946 (1992). "Failure

to make timely objection ordinarily constitutes a waiver. . . .

1 Defendant further contends that the trial court erroneously denied his motion to strike at the conclusion of the Commonwealth's case-in-chief. However, because defendant subsequently presented evidence, "we consider the entire record to determine whether the evidence was sufficient." Sheppard v. Commonwealth, 250 Va. 379, 387, 464 S.E.2d 131, 136 (1995), cert. denied, 517 U.S. 1110 (1996). 2 In overruling defendant's mistrial motion arising from the Commonwealth's opening statement, the court commented only that the remarks were "allowable," not that the referenced conduct was admissible evidence.

- 2 - Counsel cannot remain silent when improper argument is made and

after the whole argument is concluded . . . successfully move for

a mistrial." Russo v. Commonwealth, 207 Va. 251, 257, 148 S.E.2d

820, 825 (1966). Thus, defendant's motion, first made at the

conclusion of the Commonwealth's opening statement, was clearly

untimely.

In apparent reliance on the earlier mistrial motion,

defendant failed to object at trial when the Commonwealth sought

to introduce evidence of other misconduct by defendant which had

been mentioned during opening statement. "However, statements

made during an opening statement are not evidence" and do "not

'open the door' to otherwise inadmissible evidence." Bynum v.

Commonwealth, 28 Va. App. 451, 458-59, 506 S.E.2d 30, 34 (1998).

Thus, objections during opening statement are no substitute for

timely objections to evidence subsequently offered at trial. Cf.

Harward, 5 Va. App. 468, 474, 364 S.E.2d 511, 513. "Rule 5A:18

precludes [our] consideration of challenges to admissibility of

evidence to which there has been no timely objection," unless

necessary to "attain the ends of justice," a circumstance not

reflected on the instant record. Id. at 474-75, 364 S.E.2d at

514.

II.

Defendant next contends that the trial court erroneously

permitted the Commonwealth to "lead[]" and "cross examin[e]" the

child/victim by asking, during direct examination, "Other than the

- 3 - time with your mom and the time when you were jacking off, 3 was

there ever any other time that you were undressed around

[defendant]?," and "Now, have any other parts of your body been

touched by Mr. Brandon?" Both inquiries were preceded by the

child's testimony describing specific incidents involving

defendant.

A leading question improperly "suggest[s] to the witness

the answer desired." Hausenfluck v. Commonwealth, 85 Va. 702,

707, 8 S.E. 683, 686 (1889). "Thus, any question on direct

examination which tends to reveal the answer desired may be

objectionable," an "obviously" "vague test" oftentimes

determined by the "context of the question." Charles E. Friend,

The Law of Evidence in Virginia, § 3-5 (5th ed. 1999). The

rule, therefore, must "be understood in a reasonable sense,"

permitting an "approach [to] points at issue" which "bring[s]

the witness as soon as possible to the material" issues.

Hausenfluck, 85 Va. at 707, 8 S.E.2d at 686. "While we will not

. . . say that [appellate courts] will not reverse because a

leading question has been propounded to a witness[,] . . . trial

courts are clothed with a large discretion in such matters,

which [we] will not lightly undertake to control." Flint v.

Commonwealth, 114 Va. 820, 823, 76 S.E.2d 308, 310 (1912).

3 In phrasing this question, the Commonwealth adopted the child's language from earlier testimony.

- 4 - Here, the subject questions did not suggest an answer but,

rather, simply furthered the Commonwealth's inquiry into matters

properly in issue and appropriate to the witness. We, therefore,

find no error in the court's ruling.

III.

Thirdly, defendant, without amplication, argues on brief

that, "Certainly [his] Motion raised important issues for

consideration at a sentence reduction hearing. The Court did not

even grant a hearing."

It is well established that "[s]tatements unsupported by

argument, authority, or citations to the record do not merit

appellate consideration. We will not search the record for errors

in order to interpret the appellant's contention and correct

deficiencies in a brief." Buchanan v. Buchanan, 14 Va. App. 53,

56, 415 S.E.2d 237, 239 (1992). We, therefore, decline to address

this issue.

IV.

Lastly, defendant challenges the sufficiency of the evidence

to support the convictions. In considering this issue, we view

the record "'in the light most favorable to the Commonwealth,

giving it all reasonable inferences fairly deducible therefrom.

In so doing, we must discard the evidence of the accused in

conflict with that of the Commonwealth, and regard as true all the

credible evidence favorable to the Commonwealth . . . .'" Watkins

v. Commonwealth, 26 Va. App. 335, 348, 404 S.E.2d 859, 866 (1998)

- 5 - (citation omitted). The credibility of the witnesses, the weight

accorded testimony, and the inferences to be drawn from proven

facts are matters to be determined by the fact finder. See Long

v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

"When weighing the evidence, the fact finder is not required to

accept entirely either the Commonwealth's or defendant's account

of the facts[,]" but "may reject that which it finds implausible,

[and] accept other parts which it finds to be believable."

Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24

(1993). The judgment of the trial court will not be set aside

unless plainly wrong or unsupported by the evidence. See Code

§ 8.01-680.

In support of the instant challenge, defendant first points

to inconsistencies in the child's testimony and the failure of

Commonwealth witness John Thomas to reveal a pending felony

charge, both credibility issues. However, the child, then age 11,

clearly recalled to the jury that defendant "took his penis and

stuck it in [his] butt," testimony which was corroborated by

independent evidence, including results of a physical examination.

Defendant's argument that witness John Thomas testified

untruthfully is likewise without merit. The record discloses that

Thomas was never questioned relative to any unresolved charges but

simply denied promises of leniency or other inducements from the

Commonwealth in exchange for his testimony.

- 6 - Defendant further contends that the Commonwealth failed to

prove that he exposed his genitals to the child with lascivious

intent, an element necessary to the indecent liberties offenses.

Again, his assertion is belied by the record. Defendant admitted

to Investigator Cindy Wood and David Dickerson, a Child Protective

Service Worker, that he was twice "naked" in the presence of the

child. In the first instance, defendant admitted that the child

"watch[ed]" him masturbate and "left the room" after "he

finished." However, the child testified that he and defendant,

"together," were "jacking off with [their] hands . . . on [their]

penises." On the second occasion, the child's mother was

performing fellatio on defendant, then "standing in front of her,"

when the child entered the room, and defendant directed him to

"get up on the bed and . . . f___ your mother," "do like I do."

The mother testified that the child then "got up behind" her and

"went through the motions, like he was doing it," while defendant

"look[ed] at him." All were naked.

The lasciviousness contemplated by statute "describes a state

of mind that is eager for sexual indulgence, desirous of inciting

to lust or of inciting sexual desire and appetite." McKeon v.

Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284 (1970). Guided

by such definition, we find that lascivious intent was manifest in

defendant's conduct during the two perverse encounters with the

child.

- 7 - The record, therefore, provided ample support for the

convictions.

Accordingly, we affirm the convictions.

Affirmed.

- 8 -