COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker and Judges Beales and Russell*

BRANDON LAMONT WINSTON

MEMORANDUM OPINION**

v. Record No. 1129-21-2 PER CURIAM

JULY 5, 2022

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

David E. Johnson, Judge

(Kyle Anderson, on brief), for appellant. 

(Jason S. Miyares, Attorney General; Tanner M. Russo, Assistant 

Attorney General, on brief), for appellee.

Following a bench trial, the Circuit Court of Chesterfield County convicted appellant 

Brandon Lamont Winston of strangulation, in violation of Code § 18.2-51.6, and sentenced him to 

five years of incarceration with two years and six months suspended.1 Winston appeals the

conviction, arguing that “[t]he trial court erred when finding the evidence was sufficient to convict 

[him] of strangulation of another when the [trial c]ourt failed to find reasonable doubt after 

weighing testimony from all witnesses.” In addition, he argues that the trial court “abused its 

d[i]scretion when it sentenced the defendant to two years and six months incarceration after 

* Justice Russell participated in the decision of this case prior to his investiture as a Justice of 

the Supreme Court of Virginia. 

** Pursuant to Code § 17.1-413, this opinion is not designated for publication.

1 Winston was also charged with rape, abduction, forcible sodomy, assault and battery of 

a family member, and use of a firearm in the commission of a felony. Before trial, the trial court 

granted the Commonwealth’s motion to nolle prosequi the abduction charge and the assault and 

battery of a family member charge. The trial court granted Winston’s motion to strike as to the 

use of a firearm in the commission of a felony charge. At trial, the trial court found Winston not 

guilty of rape and not guilty of forcible sodomy. 

UNPUBLISHED
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convicting him of strangulat[i]on of another when there was mitigation to support a sentence within 

the guid[e]lines.” After examining the briefs and record in this case, the panel unanimously holds 

that oral argument is unnecessary because “the appeal is wholly without merit.” Code 

§ 17.1-403(ii)(a); Rule 5A:27(a). We affirm the decision of the trial court.

I. BACKGROUND

“On appeal, an appellate court is required to consider the evidence and all inferences fairly 

deducible from it in the light most favorable to the Commonwealth, [as] the prevailing party at 

trial.” Lambert v. Commonwealth, 298 Va. 510, 515 (2020). Therefore, we discard appellant’s 

evidence that conflicts with that of the Commonwealth, and “regard as true all the credible evidence 

favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Gerald v. 

Commonwealth, 295 Va. 469, 473 (2018) (quoting Kelley v Commonwealth, 289 Va. 463, 467-68 

(2015)).

On July 18, 2020, Winston and the victim2 were in a relationship and had a daughter in 

common. Winston, his girlfriend, and their daughter lived in Chesterfield County along with his

girlfriend’sson. According to the victim’s testimony at trial, in the early hours of that morning, 

while she was showering, Winston entered the bathroom and confronted her about a Facebook post. 

Winston accused her of lying, directed profanities at her, and then began choking her. The 

encounter left herwith bruises and scratches on her neck and bruises on her leg.

Winston exited the bathroom and returned with a gun. He removed his clothes and entered 

the shower with her. He put the gun to her head, threatened to kill her and her children, and 

threatened to rape her. According to the victim’s testimony, he choked her while they were in the 

2 We refer to her as “the victim” or “girlfriend” throughout this opinion in an attempt to 

better protect her privacy.
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shower. As a result of the choking, she was unable to scream and, at times, was even unable to 

speak.

Later, Winston choked the victimin the shower again. He then brought her back to the 

bedroom, pushed her against the blinds, and continued to choke her in front of their daughter. 

While Winston put their daughter back in her crib, the victim found her son and tried to leave the 

apartment. Winston, however, stopped her at the front door and proceeded to choke her yet again. 

Eventually, she was able to flee the apartment, dressed only in a towel. She went to a neighbor’s 

residence and called the police.

Officers Robertson and Barndt responded to the scene. The victim told Officer Robertson 

that “her boyfriend had strangled her and held her against her will and assaulted her, pointed a gun 

at her head and put a knife to her throat and raped her.” Officer Robertson observed scratches and 

red marks on her neck.

Winston told the officers that his argument with his girlfriend arose because another man 

liked one of her Facebook posts and he thought she was cheating on him. He told the officersthat,

after the argument, they reconciled and had consensual sex. Winston stated that when they woke 

up, the argument resumed.

Officer Barndt executed a search warrant of the apartment. He found a Glock 45 handgun in 

a closet, which appeared wet. The police advised Winston of his rights under Miranda v. Arizona, 

384 U.S. 436 (1966), and placed him under arrest.

Ashley Balcombe, an expert in forensic nursing, testified that she conducted a forensic 

examination and a sexual assault examination of the victimon the day of the incident. Balcombe 

observed and photographed her injuries. Balcombe measured the circumference of the victim’s

neck to determine if it was swollen. During the initial examination, her neck was thirty-three and 
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one-half centimeters. Later, during a follow-up examination, her neck was only twenty-nine 

centimeters in circumference.

At the conclusion of the Commonwealth’s evidence, Winston moved to strike, which the 

trial court denied as to all charges except for the use of the firearm in the commission of a felony 

charge. Winston called Lamont Freeman Coley, who testified that he was in the residence with 

Winston and the victimon the night of the incident and did not observe or hear any argument. On 

cross examination, Coley stated that he was not in the room with themfor the entire evening. 

Winston also took the stand and denied the events as described by the victim. He testified that they

broke up on the night in question but had consensual sex. On cross examination, Winston stated 

that he was not concerned when his girlfriend left the apartment in a towel. At the conclusion of 

Winston’s evidence, the trial court denied hisrenewed motion to strike. The trial court found 

Winston guilty of strangulation.

At the sentencing hearing, the victim’s sister testified that the incident traumatized the 

victim and the victim’s children. She stated that her sister and her sister’s children were now always 

scared, and that her sister had trouble sleeping after the incident. 

Winston’s mother testified that Winston “helps his family in any way possible, whether it’s 

financial or emotional.” She discussed Winston’s employment history, including his dedication as 

an assistant manager. Winston’s grandmother testified that he was intelligent, dedicated, 

compassionate, and a good father to his children. 

Winston requested that the trial court impose nine months of incarceration, which was the 

midpoint suggested by the discretionary sentencing guidelines, in light of his dedication to his 

employment and the lack of any prior violent felonies.3 The Commonwealth emphasized the 

3 The discretionary sentencing guidelines recommended a sentence between seven 

months and one year and four months of incarceration, with a midpoint of nine months.
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violent facts presented at trial. The trial court sentenced Winston to five years of incarceration, with 

two years and six months suspended. This appeal followed.

II. ANALYSIS

A. Assignment of Error Related to Sufficiency

Winston argues that the evidence was insufficient to convict him of strangulation “when the 

court failed to find reasonable doubt after weighing testimony from all witnesses.” He argues that if 

the facts were asthe victimdescribed, the trial court should have concluded that “Coley would have 

heard or at the very least seen behavior consistent” with her testimony. In addition, when Winston

testified, he denied her claims. He asserts that there is nothing “to suggest either Winston or Coley 

fabricated their testimony.” Winston acknowledges that he did not preserve his sufficiency 

argument for appeal but asks that the Court address it under the ends of justice exception to 

Rule 5A:18.

“No ruling of the trial court or the Virginia Workers’ Compensation Commission will be 

considered as a basis for reversal unless an objection was stated with reasonable certainty at the time 

of the ruling, except for good cause shown or to enable this Court to attain the ends of justice.” 

Rule 5A:18. “Rule 5A:18 requires a litigant to make timely and specific objections, so that the trial 

court has ‘an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary 

appeals and reversals.’” Brown v. Commonwealth, 279 Va. 210, 217 (2010) (quoting West v. 

Commonwealth, 43 Va. App. 327, 337 (2004)). “Specificity and timeliness undergird the 

contemporaneous-objection rule [and] animate its highly practical purpose.” Bethea v. 

Commonwealth, 297 Va. 730, 743 (2019). “Not just any objection will do. It must be both specific

and timely—so that the trial judge would know the particular point being made in time to do 

something about it.” Id. (quoting Dickerson v. Commonwealth, 58 Va. App. 351, 356 (2011)

(emphasis in original)).
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Here, the record is insufficient for this Court to determine if Winston preserved his 

argument for appeal. The written statement of facts in lieu of a transcript merely states that Winston

“made a motion to strike” and “a renewed motion to strike,” without further explanation. In 

addition, the written statement of facts in lieu of a transcript states that “[c]losing arguments were 

made,” without elaborating on those arguments. 

Nevertheless, Winston asks this Court to invoke the ends of justice exception and consider 

his arguments. “The ‘ends of justice’ exception to Rule 5A:18 is ‘narrow and is to be used 

sparingly.’” Melick v. Commonwealth, 69 Va. App. 122, 146 (2018) (quoting Pearce v. 

Commonwealth, 53 Va. App. 113, 123 (2008)). Whether to apply the ends of justice exception 

involves two questions: “(1) whether there is error as contended by the appellant; and (2) whether 

the failure to apply the ends of justice provision would result in a grave injustice.” Commonwealth 

v. Bass, 292 Va. 19, 27 (2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)). 

“The burden of establishing a manifest injustice is a heavy one, and it rests with the appellant.” 

Holt v. Commonwealth, 66 Va. App. 199, 210 (2016) (en banc) (quoting Brittle v. Commonwealth, 

54 Va. App. 505, 514 (2009)). “In order to invoke the ends of justice exception when sufficiency of 

the evidence has been raised for the first time on appeal, an appellant must do more than show that 

the Commonwealth failed to prove an element or elements of the offense.” Redman v. 

Commonwealth, 25 Va. App. 215, 221 (1997). “Otherwise, we would be required under the ends of 

justice exception to address the merits of every case where a defendant has failed to move to strike 

the Commonwealth’s evidence as being insufficient to prove an element of the offense.” Id. 

Instead, to demonstrate that a miscarriage of justice has occurred, an “appellant must demonstrate 

that he or she was convicted for conduct that was not a criminal offense or the record must 

affirmatively prove that an element of the offense did not occur.” Id. at 222.
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Winston contends that the evidence was insufficient to convict himof strangulation “when 

weighing the testimony of all witnesses.” He acknowledgesthat “[t]his case is whol[l]y depend[e]nt 

on the credibility of witnesses.” “‘[T]he credibility of a witness, the weight accorded the testimony, 

and the inferences to be drawn from proven facts are matters solely for the fact finder’s 

determination.’” Fletcher v. Commonwealth, 72 Va. App. 493, 502 (2020) (quoting Crawley v. 

Commonwealth, 29 Va. App. 372, 375 (1999)). Winston emphasizes that he denied the victim’s

allegations. “In its role of judging witness credibility, the fact finder is entitled to disbelieve the 

self-serving testimony of the accused and to conclude that the accused is lying to conceal his 

guilt.” Flanagan v. Commonwealth, 58 Va. App. 681, 702 (2011) (quoting Marable v. 

Commonwealth, 27 Va. App. 505, 509-10 (1998)); see also Hall v. Commonwealth, 69 Va. App. 

437, 449-50 (2018).

In addition, physical evidence corroborated the testimony of the Commonwealth’s 

witnesses. The Commonwealth presented photographs depicting the bruises around the victim’s

neck and her medical records indicated that her neck was swollen immediately after the incident. 

By convicting Winston, the trial court found the Commonwealth’s witnesses to be more credible 

than Winston and his witness. See Lambert v. Commonwealth, 70 Va. App. 740, 760 (2019) 

(holding that a witness’s testimony was not inherently incredible when it was corroborated by 

other evidence). Winston points to nothing in the record affirmatively proving that an element of 

the offense did not occur or that he was convicted for non-criminal conduct. Redman, 25

Va. App. at 222. Accordingly, the ends of justice exception does not apply, and Rule 5A:18 bars 

consideration of Winston’s argument.

B. Assignment of Error Related to Sentencing

Winston argues that the trial court abused its discretion by sentencing him“to two years and 

six months of incarceration when there was mitigation to support a sentence within the guidelines.” 
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He asserts that the evidence showed that he was “a hard worker who gave support to his family” and 

that “[h]e had a history of employment and would ride his bicycle to and from work to be able to 

support his family.” Additionally, Winston notes that he had a “very limited criminal record absent 

[of] any felonies.” 

“The determination of sentencing lies within the sound discretion of the trial court. A

sentencing decision will not be reversed unless the trial court abused its discretion.” Garibaldi v. 

Commonwealth, 71 Va. App. 64, 67 (2019) (quoting Martin v. Commonwealth, 274 Va. 733, 735 

(2007)). “[W]hen a statute prescribes a maximum imprisonment penalty and the sentence does 

not exceed that maximum, the sentence will not be overturned as being an abuse of discretion.” 

Du v. Commonwealth, 292 Va. 555, 564-65 (2016) (quoting Alston v. Commonwealth, 274 Va. 

759, 771-72 (2007)). The sentencing guidelines “are discretionary, rather than mandatory.”

Woodard v. Commonwealth, 287 Va. 276, 281 (2014) (quoting West v. Director, Dep’t of Corr., 

273 Va. 56, 65 (2007)). A judge’s failure to follow the sentencing guidelines “shall not be 

reviewable on appeal or the basis of any other post-conviction relief.” Code § 19.2-298.01(F).

It was within the trial court’s purview to weigh the mitigating evidence Winston 

presented. Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). “Criminal sentencing 

decisions are among the most difficult judgment calls trial judges face.” Du, 292 Va. at 563. 

“Because this task is so difficult, it must rest heavily on judges closest to the facts of the case—

those hearing and seeing the witnesses, taking into account their verbal and nonverbal 

communication, and placing all of it in the context of the entire case.” Id.

Here, the record demonstrates that the trial court heard the mitigating evidence Winston

cites on appeal. Balanced against that, however, was the strangulation of the victim, the impact 

it had on her life, and the impact it had on her family. After considering all the circumstances, 

the trial court imposed the sentence that it deemed appropriate. Furthermore, Winston’s sentence 
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was within the statutory range set by the legislature for a conviction for strangulation. SeeCode 

§§ 18.2-10(f) and -51.6. “[O]nce it is determined that a sentence is within the limitations set 

forth in the statute under which it is imposed, appellate review is at an end.” Thomason v. 

Commonwealth, 69 Va. App. 89, 99 (2018) (quoting Du, 292 Va. at 565). Therefore, we do not 

disturb the trial court’s sentencing decision. 

III. CONCLUSION

For the foregoing reasons, we affirm the trial court’s decision.

Affirmed.