COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Alston and Senior Judge Willis Argued at Richmond, Virginia

CABELL RIFFE CLATTERBAUGH MEMORANDUM OPINION * BY v. Record No. 0801-09-2 JUDGE WILLIAM G. PETTY JULY 27, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ALBEMARLE COUNTY Cheryl V. Higgins, Judge Charles L. Weber, Jr., 1 for appellant. Rosemary V. Bourne, Assistan t Attorney Genera l (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.
A jury convicted appellant Cabell Riffe Clatte rbaugh of statutory burglary, in violation of Code § 18.2-90; attempted robbery, in viola tion of Code §§ 18.2-26 and 18.2-58; unlawful wounding, in violation of Code § 18.2-51; and use of a firearm in the commission of a felony in violation of Code § 18.2-53.1. Clatterbaugh now ch allenges his convictions on appeal. First, Clatterbaugh argues that the trial court erred wh en it limited the scope of his cross-examination of the Commonwealth’s witnesses. Second, Clatterbaugh maintains that the trial court erred by refusing to grant his motions for a mistrial. Th ird, Clatterbaugh contends that the trial court abused its discretion when it admitted evidence without a proper foundation. Fourth, Clatterbaugh asserts that the trial court erred when it allowed the Commonwealth to impeach one

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

1 James Maloney represente d Clatterbaugh at trial.- 2 - of its witnesses with prior inconsistent statements . For the reasons discussed below, we disagree with Clatterbaugh and affirm his convictions.
I. In accord with well-settled appellate principles , “we review the evidence in the light most favorable to the Commonwealth, granting to it al l reasonable inferences fairly deducible therefrom.” Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Because the parties are fully c onversant with the reco rd in this case and this memorandum opinion carries no precedential value, we recite only those facts a nd incidents of the proceedings as are necessary to the parties’ understanding of the disposition of these narrow questions presented on appeal. During the early morning hours of July 27, 2007, Clatterbaugh knocked on the front door of a home in Albemarle County. When one of the residents of the home, Joshua Mayo, opened the front door, Clatterbaugh forced his way in. Almost immediately, Clatterbaugh struck Mayo over the left eye with a pistol. At that time, one of Mayo’s gue sts, who had gone to school with Clatterbaugh, began to scream “Stop, Cabell, sto p.” Rather than stopping, Clatterbaugh forced Mayo in front of him, and, with a pistol presse d to the back of Mayo’s head, walked him around the house demanding money. When Clatterbaugh and Mayo arrived in the home’s upstairs bathroom, Mayo pointed to a kitty litter box in the floor and said, “Here’s your money.” When Clatterbaugh looked down, Mayo fled, slammed th e bathroom door behind him, and ran to the neighbors’ house for help.
II.
A. Cross-Examination Clatterbaugh argues that the trial cour t abused its discretion by limiting his cross-examination of the complaining witness, Joshua Mayo, on two separate occasions. First,- 3 - the trial court limited Clatterb augh’s questions regarding Mayo’ s drug use and the presence of drugs in the home that Clat terbaugh invaded. Second, the tr ial court limited Clatterbaugh’s cross-examination of Mayo regard ing his identificati on of Clatterbaugh in a photograph lineup. As discussed below, the trial court did not a buse its discretion, and in stead properly limited cross-examination. The “[l]imitation of cross-examination is a ma tter within the sound di scretion of the trial court and is subject to review only for abuse of discretion.” Naulty v. Commonwealth , 2 Va. App. 523, 529, 346 S.E.2d 540, 543 (1986). Furthe r, we will not reverse a trial court’s determination to limit the scope of cross-examination unless it is plain from the record that the court’s ruling has prejudiced the cross-examiner’s case. Worrell & Williams v. Kinnear Mfg.
Co. , 103 Va. 719, 724, 49 S.E. 988, 990 (1905).
1. Theft of Drugs Argument Clatterbaugh’s victim, Joshua Mayo, admitted on direct examination that he had consumed alcohol, marijuana, and cocaine the even ing before Clatterbaugh broke into his home. On cross-examination, the defense questioned Ma yo regarding his preliminary hearing testimony in which he stated that he had not taken any drugs during the relevant time, and Mayo admitted lying in his earlier testimony. The defense also questioned Ma yo about the amount of alcohol, marijuana, and cocaine he had consumed during the evening, and whether he was impaired after consuming the alcohol and drugs. Then, the de fense sought to question Mayo about the amount of drugs in the house and whether he was holding dr ugs for his fiancée’s brot her on that evening. When the Commonwealth objected to the new line of questioning, the trial court excused the jury and heard argument on the objection. The defense explained that its theory of the case was that Mayo was holding a quantity of drugs and that the motive for the break-in was the theft of drugs.- 4 - The trial court sustained the objection on the grou nds that the defense’s line of questioning was irrelevant. Defense counsel never made a proffer of the excluded evidence. In order to preserve an appellate chal lenge to the trial court’s limitation of cross-examination, the cross-examiner must ma ke a proper proffer of the excluded testimony. Stewart v. Commonwealth , 10 Va. App. 563, 568, 394 S.E.2d 509, 512 (1990). “A proper proffer may consist of a unilatera l avowal of counsel, if unchalleng ed, or a mutual stipulation of the testimony expected,” or the witness may tes tify outside the presence of the jury for the record. Whittaker v. Commonwealth , 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977). “[A]n appellate court has no basis for adjudication” without a proffer of excluded testimony. Id. We conclude that Clatterbaugh did not make a proper proffer of the evidence he hoped to elicit from Mayo regarding his th eft of drugs theory. Although defense counsel explained his theory of the case to the trial court, he did not explain to the trial court what testimony he expected to elicit from Mayo th at would support that theory, nor did he seek to examine Mayo outside the presence of the jury to preserve the excluded tes timony for review. Further, the record does not show any stipulatio n of the parties as to this issue. Without that proffer, this Court has no way to determine whether the trial court erred in limiting the defense’s cross-examination, because we ha ve no basis upon which to determ ine relevance or prejudice.
See Evans v. Commonwealth , 39 Va. App. 229, 236, 572 S.E.2d 481, 484 (2002). Hence, we hold that the record is insufficient to determine whether the trial court erred in limiting the scope of cross-examination on the issue of th e amount of drugs in the residence. Id.
2. Identification Argument Later during cross-examination, defense c ounsel asked Mayo a series of questions regarding his failure to identify Clatterbaugh in an out-of-court photograph array. According to Mayo’s testimony on cross-examination, defens e counsel had approached Mayo in the- 5 - courthouse immediately before the preliminary hear ing in this case. De fense counsel, without identifying himself as such, showed Mayo twelve photographs of “twenty-something white males of medium height, medium bui lt, et cetera.” Mayo testified that he picked “two to three” of the photographs that he thought were possibly of Clatterbaugh. Mayo testified, “it was just very confusing to look at these photos in ever yday life sitting on a couch and with hats on and stuff, so I wasn’t --- I remember three photos of what seemed to resemble him.” At that point, the Commonwealth objected arguing that th ere had not been any “foundation.” The Commonwealth explained “first of all” that there had been no testimony indicating that any of the pictures were of “Mr. Cla tterbaugh or that, two, that this witness was able to—whether he was able to pick out who it was or who it wasn’t . I think there needs to be more information from other witnesses before this type of examinati on can continue with respect to this witness.” The court sustained the Commonwealth’s objec tion, and determined that “there would need to be a foundation set as to which one is Mr . Clatterbaugh, which one is not, verification if the witness cannot remember which ones he didn’t pi ck . . . .” Defense counsel then requested to show the photographs to Mayo to “ask him whethe r or not these are the photographs that he identified.” Again, the trial court determined that defense counsel would need to lay a foundation for the evidence before showing the photographs to the witness. The next day, defense counsel called Clatterbaugh’s mother, Jennifer Riffe, to lay the foundation for the photographic lin eup. Ms. Riffe explained that she gave the photographs to defense counsel and that they were meant to be a representation of young men who were generally the same age and build as her son. The Commonwealth voir di red the witness, and established that Ms. Riffe was not present when the pictures were actually shown to Mayo, and thus could not testify whether the pictures sh e provided to defense counsel were the same pictures defense counsel showed Mayo. The Co mmonwealth did not, however, object to defense- 6 - counsel’s continued examination of the witness. Ms. Riffe we nt on to identify each young man in the photographs—photographs sh e had gathered from her personal family photo albums. The trial court admitted the photographs over the Commonwealth’s objection. Following Ms. Riffe’s testimony, defense counsel recalled Mayo to question him regarding the photographs. At that time, the witness confirmed that when he was first shown the photographs prior to the preliminar y hearing in this case, he had marked three of the twelve photographs as being of young men who resembled Clatterbaugh. Defense counsel established, between Ms. Riffe’s and Mr. Mayo’s testimony, that Mayo had failed to identify the one photograph of Clatterbaugh that had been included in the photographic lineup. After the foundation was laid, defense counsel had a full opportunity to examine Mayo regarding his failure to identify Clatterbaugh in the photograph lineup, and the photographs were introduced into evidence. Neither the record nor Clatterbaugh’s brief on appeal indicates what else, if anything, Clatterbaugh hoped to acco mplish by questioning Mayo regarding the photographs. Hence, Clatterbaugh was able to reach the testimony he sought from Mayo—that he had failed to identify Clatterbaugh in a photo lineup. And, while Clatterbaugh asserts on brief that the trial court obliging hi m to establish a foundation before admitting the photographs into evidence “required a complete chan ge in trial strategy,” he does not indicate what that change was, or how that change may have prejudiced him. “Relying upon the prior decisions of the Supreme Court, this Court has stated that, ‘generally speaki ng, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’” Crump v. Commonwealth , 20 Va. App. 609, 612-13, 460 S.E.2d 238, 239 (1995) (emphasis in original) (quoting Nichols v. Commonwealth , 6 Va. App. 426, 429, 369 S.E.2d 218, 220 (1988)). Here, Clatterbaugh had that opportunity, and the trial court co mmitted no reversible error.- 7 - B. Motions for Mistrial Clatterbaugh moved for mistrial five times during trial, and now challenges the trial court’s denial of all five of his motions. Code § 8.01-361 allows a trial court to discharge a jury when there is a “manifest necess ity” for the discharge, and the tr ial judge has broad discretion in determining situations in which a mistrial is appropriate. Turnbull v. Commonwealth , 216 Va. 328, 335, 218 S.E.2d 541, 546 (1975). We will not revers e the trial court’s denial of a motion for a mistrial unless a manifest pr obability exists that the trial court’s ruling was prejudicial. Perez v. Commonwealth , 40 Va. App. 648, 654, 580 S.E.2d 507, 510 (2003). 2
1. Untimely Motions for Mistrial Made During Trial a. Mayo’s Unelicited Comment At the end of Mayo’s testimony on the first day of trial, the court released Mayo for the day, and instructed him to, among other things, refrain from discussing the case. Mayo then asked the court what he should do when “people on the other side a pproach [him]” outside of the courtroom. The trial court instructed Mayo to wa lk away from those people without discussing the case. Mayo then asked “And if I’m threatened?” The Commonwealth indicated that someone outside the courtroom could help Mayo with his issue, and he left. During Mayo’s statements, defense counsel objected and stated that he “had a motion.” Rather than asking the jury to be excused and addressing his motion for a mistrial at that time, defense counsel waited until after the cour t had heard the testimony of another witness. Only then did counsel assert that Mayo’s statement was inappr opriate, that Clatterbaugh was

2 We note that the Commonwealth moved for a mi strial near the conclusion of evidence in this case. All of the inci dents about which Clatterbaugh co mplains on appeal had occurred by the time of the Commonwealth’s motion for mist rial. The record shows, however, that trial counsel vigorously opposed the Commonwea lth’s motion. Given our holding that Clatterbaugh’s motions were not timely, we need not reach the issue of whether he waived those motions by arguing against the granting of a mistrial upon request of the Commonwealth.- 8 - “unfairly prejudiced” by Mayo’s statement, and th at a mistrial was warranted. The trial court denied counsel’s motion because Mayo did not in dicate who specifically had threatened him; accordingly, the trial court concluded that ther e was no “manifest injustice” in continuing the trial. Defense counsel refuse d a cautionary instruction. b. Officer Kesner’s Non-responsive Answer Officer Ron Kesner of the Albemarle Count y Police Department testified at trial regarding his investigation of Clatterbaugh’ s crimes. During Officer Kesner’s testimony regarding his investigative interview of a witness to the crimes who identified Clatterbaugh as the assailant, the Commonwealth asked “[w]hat words” the witness used to communicate her identification of Clatterbaugh. O fficer Kesner responded, “Well, she relayed to me that she . . . used to go to school with Mr. Clatterbaugh and that that’s how she knew him. She stated to me that she hadn’t seen him in several years and that she knew that he had just recently been released from jail.” At that poi nt, defense counsel stated, “Judge, I’m going to object. I have a motion.” The court did not respond, and the prosecution’s direct examination continued. Although defense counsel objected to other questi ons, he did not address his motion, which was eventually revealed to be a motion for mistrial, until well after he commenced cross-examining Officer Kesner. At that time, defense counsel argued that Clatterbaugh should be granted a mistrial because Officer Kesner’s testimony was “exceedingly prejudicial” to Clatterbaugh. The trial court took the mistrial motion under advisement. c. Discussion We conclude that Clatterbaugh’s motions fo r mistrial were untimely and were thus waived for appellate purposes. As the Supreme Court of Virginia has explained, “if a defendant wishes to take advantage on appeal of some incident he regards as objectionable enough to warrant a mistrial, he must make his motion tim ely or else be deemed to have waived his- 9 - objection.” Yeatts v. Commonwealth , 242 Va. 121, 137, 410 S.E.2d 254, 264 (1991) (citing Russo v. Commonwealth , 207 Va. 251, 257, 148 S.E.2d 820, 825 (1966)).
In Yeatts , a prosecution witness testified that the defendant had told the witness about the defendant’s prior convictions. Id. at 136, 410 S.E.2d at 263. Defe nse counsel objected, and the trial court sustained the objection. Id. at 136, 410 S.E.2d at 264. The prosecution’s direct examination continued without further objection. Id. At the conclusion of the witness’ testimony, defense counsel informed th e court that he “had a motion.” Id. at 137, 410 S.E.2d at 264. After the jury was excused, defense counsel argued that the defendant should be granted a mistrial. Id. The Supreme Court held that this motion “fail[ed] the test of timeliness” because the defense did not make the motion for mistrial “‘when the objectionable words were spoken.’” Id. (quoting Reid v. Baumgardner , 217 Va. 769, 774, 232 S.E.2d 778, 781 (1977)); accord Morris v. Commonwealth , 14 Va. App. 283, 286-87, 416 S.E.2d 462, 464 (1992) ( en banc ). Here, as in Yeatts , defense counsel failed to move fo r a mistrial “when the objectionable words were spoken.” Because of this delay, like that in Yeatts , we conclude that Clatterbaugh waived his objection.
2. Unsupported Assertions of Error Clatterbaugh asserts that the trial court a bused its discretion when it failed to grant his motions for mistrial following arguably improper testimony by three other witnesses. Appellant’s Br. at 16-20. Cl atterbaugh, however, makes no lega l argument in support of these assertions of error. Indeed, his argument fo r each of these points is only a few sentences long, and is devoid of citation to any legal aut hority supporting his position. “‘An appellant who asserts that a trial court’s ruling was erroneous has an obligation to state clearly to the appellate court the grounds for that assertion.’” Jenkins v. Commonwealth , 244 Va. 445, 461, 423 S.E.2d 360, 370 (1992) (quoting Spencer v. Commonwealth , 240 Va. 78, 99, 393 S.E.2d 609, 622- 10 - (1990)). Rule 5A:20 ( e) bars us from addressing a ny issues unsupported by authority. Epps v. Commonwealth , 47 Va. App. 687, 718, 626 S.E.2d 912, 926 (2006) ( en banc ), aff’d , 273 Va. 410, 641 S.E.2d 77 (2007). As we have previous ly, and frequently, explained, “[a]ppellate courts are not unlit rooms where attorneys ma y wander blindly about, hoping to stumble upon a reversible error.” Fadness v. Fadness , 52 Va. App. 833, 851, 667 S.E.2d 857, 866 (2008). Instead, if Clatterbaugh “believe[s] that the circuit court erred, it [is his] duty to pres ent that error to us with legal authority to support [his] contention.” Id.
In Jay v. Commonwealth , 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008), the Supreme Court announced that when a party’s “failure to strictly adhere to th e requirements of Rule 5A:20 ( e)” is significant, “the Court of Appeals may . . . treat a questi on presented as waived.” In this case, we find Clatterbaugh’s failure to co mply with Rule 5A:20(e) is significant. Accordingly, we will not address thes e questions presented on appeal.
3. Motions for Mistrial Made After the Jury Retired for Deliberation After the jury had retired for deliberation, Cl atterbaugh renewed his motions for mistrial. “A motion for a mistrial is untimely and is prope rly refused when it is made after the jury has retired from the courtroom.” Schmitt v. Commonwealth , 262 Va. 127, 148, 547 S.E.2d 186, 201 (2001). As discussed above, “[ u]nless a defendant has made a timely motion for a cautionary instruction or for a mistrial, we will not c onsider his” related arguments on appeal. Id. at 148, 547 S.E.2d at 200.
C. Admissibility of Telephone Call Evidence Next, Clatterbaugh argues that the trial court’s decision to admit a recording of a telephone conversation recorded at the Albemarl e Charlottesville Region al Jail was erroneous because the proponent of the evidence, the Co mmonwealth, presented an inadequate foundation for the evidence. We disagree.- 11 - In Virginia, “conversations overheard on a telephone ar e admissible as substantive evidence when the identity of the parties to th e conversation is establis hed, either by direct evidence or by facts and circumstances.” Opanowich v. Commonwealth , 196 Va. 342, 351, 83 S.E.2d 432, 438 (1954) (citations omitted); accord Benson v. Commonwealth , 190 Va. 744, 751, 58 S.E.2d 312, 315 (1950). Circumstantial evidence is sufficient to establish the identity of the parties to a telephone conversation, but a mere “‘ statement of his identity by the party called, standing alone, is not generall y regarded as sufficient proof of such identity unless it is corroborated by other circumstances.’” Armes v. Commonwealth , 3 Va. App. 189, 192, 349 S.E.2d 150, 152 (1986) (quoting Benson , 190 Va. at 751, 58 S.E.2d at 315). Here, one of the parties to the conversati on identified himself as “Cabell,” a somewhat distinctive name, and the other party to the c onversation identified himself as “Snoop,” another rather unique moniker. After the recording had come into evidence, the defense called Jamal Johnson as a witness, who testified on direct examination that his nickname was Snoop. On cross-examination, Johnson confirmed that he and Clatterbaugh had a telephone conversation when Clatterbaugh called him from jail, and indicated that they di scussed the same subjects that were discussed in the recorded conversation th at had already been pl ayed for the jury. The Commonwealth also presented evidence from Gaquetta Murray-Key, the jail employee who is responsible for assigning each in mate a unique PIN so that the inmate can access the jail telephone system through a prepaid acc ount. Ms. Murray-Key also testified that she prints out the PINs, seals them, and mails them to the in mates through the jail post office system. Ms. Murray-Key also explained that th e only way an inmate can make a telephone call is to dial in the PIN and the telephone number of the person the inmate is calling. Ms. Murray-Key stated she explained to each inmate th at the PIN is not to be shared and that the inmates receive a sticker reminding them of that as well. Finally, Ms. Mu rray-Key told the court- 12 - that she retrieved the recordi ng of the telephone call the Commonw ealth sought to introduce into evidence by typing Clatterbaugh’s name into th e jail computer system, which then pulled recordings of all of the telephone conversati ons made under Clatterbaugh’s unique PIN. We conclude that there was sufficient corrobora tion of the identity of the parties to the telephone conversation and th at the trial court properly admitted it into evidence. Both parties identified themselves during the call, and, wh ile Johnson did not listen to the recording and confirm that it was him speaking, he did testif y that he had a tele phone conversation with Clatterbaugh during the relevant time, and testif ied to the substance of that conversation. The same substance was included in the recorded conversation. And, while this testimony was subsequent to the admission of the recording into evidence, “the long-stan ding rule in Virginia [is] that the order of proof is within the sound discretion of the trial court.” Armes , 3 Va. App. at 195, 349 S.E.2d at 154 (citing Quintana v. Commonwealth , 224 Va. 127, 142, 295 S.E.2d 643, 650 (1982); Hargraves v. Commonwealth , 219 Va. 604, 608, 248 S.E.2d 814, 817 (1978)). Prior to moving to admit the recording into evidence, the Commonwealth also presented Ms. Murray-Key’s testimony esta blishing that a telephone call made with a prisoner’s unique PIN was, in all likelihood, made by that prisoner. Any possibility—however slim—that another prisoner had stolen Clatterbaugh’s PIN and had ma de telephone calls during which he identified himself as “Cabell” and called Cl atterbaugh’s friend “Snoop” went to the weight of the evidence, rather than its admissibility. See id. at 194, 349 S.E.2d at 154 (“It was the jury’s function to determine the weight of the circumstantial evid ence linking the calls to [Clatterbaugh].” (citing State v. Williams , 502 P.2d 770, 780 (Kan. 1972))).
D. Impeachment of Michelle Laman with Prior Inconsistent Statements Finally, Clatterbaugh contends the trial court erred when it allowed the Commonwealth to impeach its witness when she gave testim ony adverse to the Commonwealth’s case that,- 13 - Clatterbaugh alleges, the Commonwealth had reas on to expect. Because we determine that the Commonwealth only had reason to be lieve that the witness was relu ctant to testify, as opposed to notice that she would testify adve rsely, we conclude that the trial court properly allowed the Commonwealth to impeach the witn ess with her prior statement. According to Code § 8.01-403, which is applicable in both criminal and civil cases, “[a] party producing a witness . . . may, in case the w itness shall in the opinion of the court prove adverse, by leave of the court, prove that [the witness] has made at other times a statement inconsistent with his pr esent testimony . . . .” See Ragland v. Commonwealth , 16 Va. App. 913, 920, 434 S.E.2d 675, 680 (1993). “‘A party’s own witness proves adverse if the witness surprises the party by changing stories or becoming hostile on the stand.’” Wells v. Commonwealth , 32 Va. App. 775, 784, 531 S.E.2d 16, 20 (2000) (quoting Maxey v. Commonwealth , 26 Va. App. 514, 519, 495 S.E.2d 536, 539 (1998)). The determination of whether a witness is unwilling to testify or hostile is a matter that rests with the discretion of the trial court. Weller v. Commonwealth , 16 Va. App. 886, 892, 434 S.E.2d 330, 335 (1993). Laman was present at the scene of the crime, as she was one of the victim’s friends who was visiting him and helping him pack for his upcoming move. When law enforcement first interviewed Laman, she told them that she had been looking out of the house’s front window and had seen the assailant’s vehicle pull up in front of the house. She thought that the person who exited the car was Cabell Clatterbaugh, with whom she had attended middle school. In fact, she reported that, as she looked out the window that early morning, she said, “Cabell’s here.” She told law enforcement that she knew it was Cl atterbaugh because the individual was driving Clatterbaugh’s car and because he was wearin g the “thug-type” clothing that Clatterbaugh favored. Laman also told the officer that she wa s frightened to testify because of the “kind of- 14 - people they are” and that she did not want to testify because she had been retaliated against when she testified in another matter involving other parties. At trial, Laman testified that she was extremely intoxicated on the night and early morning of the crime, that she had not seen Clat terbaugh in seven years, and that she never saw the person closely. She testified that the indivi dual “could have been anyone” and that she no longer believed it to have been Clatterba ugh. Although the Commonwealth knew that Laman was reluctant to testify based on the March 3, 20 08 interview, it did not know that Laman was going to recant her previous statement and now te stify that the assailant was not Clatterbaugh. Accordingly, the trial court di d not abuse its discretion by determining that the Commonwealth’s witness had proven adverse and allowing the Co mmonwealth to impeach her with her prior inconsistent statement.
III. For the foregoing reasons, we affirm Clatterbaugh’s convictions. Affirmed.