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 -