Warren H. Brandon v. Commonwealth of Virginia ( 2000 )

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.
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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
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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.
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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)
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(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.
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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.
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The record, therefore, provided ample support for the
convictions.
Accordingly, we affirm the convictions.
Affirmed.
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