COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpatr ick, Judges Co leman and Bray Argued at Rich mond, Virginia

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

FROM THE CIRCUIT COUR T OF HENRICO COUNTY George F. Ti dey, Judge Robert S. Ganey for appellant. Kathleen B. Martin , Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Warren Brandon (d efendant) was convicted by a jury on indictments ch arging forcible sodomy an d two counts of taking indecent liberties with a minor, violations of Code §§ 18.2-67.1 and 18.2-370, resp ectively. On ap peal, he argues that the trial

court erroneou sly (1) allowed the Commonwe alth to refe rence during opening statem ent, and later intr oduce, evidence of other sexual misconduct and related offenses by de fendant, (2) permitted the Commonwealth to pose leading ques tions of the ch ild/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 tr ial court. The parties ar e fully conversa nt with the re cord, and this memorandum opinion re cites only those fa cts necess ary to a disposition of the appeal.

I. At the conclusion of Commonwealth's opening st atement, defendant moved th e court to declare a mist rial, arguin g that the Commonwealth had improperly as cribed to defe ndant numerous criminal acts whic h were "not part of the indictme nts and charges" before the court. He complains on appeal both that the court denied the motion and allowed the Comm onwealth to la ter introduce evidence of such "addit ional bad acts " at trial. 2 "Making a time ly motion for mi strial means maki ng the motion 'when the objectionable words we re spoken.'" Yeatts v. Commonwealth , 242 Va. 121, 13 7, 410 S.E.2d 25 4, 264 (1991) (citation omitted), cert. denied , 503 U.S. 946 (1 992). "Failure to make timely object ion ordinarily constitu tes 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 im proper argument is made and after the whole ar gument is conclu ded . . . successf ully move for a mistrial." Russo v. Commonwealth , 207 Va. 251, 25 7, 148 S.E.2d 820, 825 (1966). Th us, defendant's motion, first made at the conclusion of th e Commonwealth 's opening statem ent, was clearly untimely. In apparent reliance on the earlier mist rial motion, defendant failed to object at tr ial when the Comm onwealth sought to introduce evid ence of other mi sconduct by defe ndant which had been mentioned during opening statemen t. "However , statements made during an openin g 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, objectio ns during openin g statement are no substitute for timely objections to evidence subsequently offe red at trial. Cf. Harward , 5 Va. App. 468, 47 4, 364 S.E.2d 511, 513. "R ule 5A:18 precludes [our] co nsideration of challenges to admiss ibility of evidence to whic h there has been no timely obje ction," unless necessary to "attain the ends of ju stice," a circ umstance not reflected on the instant record. Id. at 474-75, 36 4 S.E.2d at 514.

II. Defendant next cont ends that the tria l court er roneously permitted the Comm onwealth to "lea d[]" and "cross examin[e]" the child/victim by as king, during dire ct examination, "Other than the - 3 -time with your mom and the ti me when you we re jacking off, 3 was there ever any other time that you were undr essed around [defendant]?," and "Now , have any other parts of your body been touched by Mr. Brandon? " Both inquiries we re preceded by the child's testimon y 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 subj ect questions di d not suggest an answer but, rather, simply furthere d the Commonweal th's inquiry into matters properly in issu e and appropriate to the witness. We, therefore, find no error in the court's ruling.

III. Thirdly, defendant, without amplication, ar gues on brief that, "Certainly [his] Motion raised important is sues for consideration at a sentence reduction he aring. The Court did not even grant a hearing." It is well establ ished that "[s]tateme nts unsupp orted by argument, auth ority, or citati ons to the record do not merit appellate consid eration. We will not search the re cord for errors in order to interpre t the appellan t's contention and correct deficiencies in a brief." Buchanan v. Buchanan , 14 Va. App. 53, 56, 415 S.E.2d 237, 23 9 (1992). We, therefor e, decline to address this issue.

IV. Lastly, defendan t challenges the suffic iency of the evidence to support the co nvictions. In considerin g this issue, we view the record "'in the light most favorable to the Comm onwealth, giving it all re asonable inferences fairly deducible th erefrom. In so doing, we must discard the ev idence of th e accused in conflict with that of the Commonwealth , and regard as true all the credible evidence fa vorable to the Common wealth . . . .'" Watkins v. Commonwealth , 26 Va. App. 335, 348, 404 S.E.2d 859, 866 (1998)

- 5 -(citation omit ted). The credibil ity of the witnes ses, the weight accorded testimony, an d the inferences to be drawn from proven facts are matter s to be determ ined by the fact finder. See Long v. Commonwealth , 8 Va. App. 194, 199, 379 S.E.2d 47 3, 476 (1989). "When weighing the evid ence, the fact finder is not required to accept entirely either the Commonweal th's or defend ant's account of the facts[,]" but "m ay reject that which it finds im plausible, [and] accept other pa rts 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 wi ll not be set aside unless plainly wron g or unsupported by the evidence. See Code § 8.01-680. In support of the instant challeng e, defendant first points to inconsistencie s in the child' s testimony and the failure of Commonwealth witness John Thomas to reve al a pending felony charge, both credibilit y issues. However, the child, then age 11, clearly recall ed to the jury that defendant "t ook his penis and stuck it in [his ] butt," testimony whic h was corrob orated by independent evidence, includin g results of a physic al examination. Defendant's argu ment that witness Jo hn Thomas testified untruthfully is li kewise without me rit. The record discloses that Thomas was never questi oned relative to any unresolved charges but simply denied promises of leniency or othe r inducement s from the Commonwealth in exchange for his testimony.

- 6 -Defendant furthe r contends that the Co mmonwealth failed to prove that he ex posed his genitals to the child wi th lascivious intent, an element nece ssary to the indecent liberties of fenses. Again, his assertion is belied by th e record. Defe ndant admitted to Investigator Cindy Wood and David Dickerso n, a Child Protective Service Worker, th at he was twice "naked" in the pr esence of the child. In the first instance, defend ant admitted th at the child "watch[ed]" him masturbate and "left the room" after "he finished." Howe ver, the child te stified that he and defendant, "together," we re "jacking off with [the ir] hands . . . on [their] penises." On the second occasion, th e child's mo ther was performing fellatio on defendant, then "standing in front of her," when the child entere d the room, and defendant dire cted him to "get up on the bed and . . . f___ your mother ," "do like I do." The mother testified th at the child then "got up behind" her and "went through the motions, like he was do ing it," while defendant "look[ed] at him." All were naked. The lasciviousne ss contemplated by statute "des cribes a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appe tite." McKeon v. Commonwealth , 211 Va. 24, 27, 17 5 S.E.2d 282, 284 (1970). Guided by such definition , we find that lascivious intent was manifest in defendant's co nduct during the two perver se encounters with the child.

- 7 -The record, theref ore, provided ampl e support for the convictions. Accordingly, we affi rm the convictions. Affirmed.

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