                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Frank and Kelsey
Argued at Richmond, Virginia


DEANDRE TYDRELL GAY, S/K/A
 DEANDRE TYDNELL GAY
                                                              MEMORANDUM OPINION * BY
v.      Record No. 1430-09-2                              CHIEF JUDGE WALTER S. FELTON, JR.
                                                                  NOVEMBER 30, 2010
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                Margaret P. Spencer, Judge

                  Susan L. Parrish (Bowen, Champlin, Foreman & Rockecharlie, on
                  brief), for appellant.

                  Leah A. Darron, Senior Assistant Attorney General (Kenneth T.
                  Cuccinelli, II, Attorney General, on brief), for appellee.


        Deandre Tydrell Gay, s/k/a Deandre Tydnell Gay, (“appellant”) appeals his convictions for

two charges of distribution of cocaine and two charges of distribution of heroin in violation of Code

§ 18.2-248(C). He contends the trial court erred in (1) finding the evidence sufficient to sustain his

convictions, (2) not allowing him to cross-examine a Commonwealth’s witness, a confidential

informant, about the nature of his prior felony convictions, and (3) refusing to merge indictments

charging distribution of cocaine and distribution of heroin arising out of a single sale. For the

following reasons, we affirm the judgment of the trial court.

        As the parties are fully conversant with the record in this case, we recite only those facts

and incidents of the proceedings as are necessary to the disposition of this appeal.




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

       Appellant contends the evidence was not sufficient to support his four convictions. We

disagree. “‘Under well-settled principles of appellate review, we consider the evidence

presented at trial in the light most favorable to the Commonwealth, the prevailing party below.’”

Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v.

Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). “‘We also accord the

Commonwealth the benefit of all inferences fairly deducible from the evidence.’” Id. (quoting

Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004)). “‘When reviewing the

sufficiency of the evidence to support a conviction, the Court will affirm the judgment unless the

judgment is plainly wrong or without evidence to support it.’” Id. (quoting Bolden, 275 Va. at

148, 654 S.E.2d at 586).

       At trial, the evidence showed that a paid confidential informant (“Stevens”) engaged in a

series of “buy-walk” controlled purchases of illegal narcotics for Richmond City Police Detective

Brandon Black. On October 9, 2008, Stevens was given $60 and dropped off on 25th Street in

the City of Richmond. Stevens purchased three bags of cocaine and provided a description of

the seller to Detective Black. Stevens identified appellant as the person who sold the drugs to

him.

       On October 20, 2008, Detective Black dropped Stevens off at the same location with

$160 and instructions to purchase drugs from appellant. Stevens returned to the police vehicle a

few minutes later. He gave Detective Black four rocks of cocaine, totaling one gram, and a bag

of heroin, totaling 0.049 gram that he had purchased from appellant for $125.

       On October 23, 2008, Detective Black again transported Stevens to 25th Street with

instructions to buy drugs from appellant. Within six minutes of being dropped off, Stevens




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returned and gave Detective Black four bags of heroin, which he had purchased from appellant

for $60.

       On each of the three occasions that Stevens purchased drugs from appellant, he was

outfitted with audio and video recording equipment that recorded the transactions. Detective

Wooten monitored the transactions as they occurred through the audio equipment. He also

viewed the videos of the transactions at a later time. Detectives Black and Wooten thoroughly

searched Stevens before releasing him to make drug purchases from appellant, and again

searched him when he returned with the drugs he purchased from appellant.

       The trial court admitted the three video clips, as well as still photographs taken from the

videos, depicting the drug transactions between Stevens and appellant. Stevens identified

appellant as the dealer in the video. Detectives Black and Wooten each testified in depth as to

the strict procedures followed for each “buy-walk.” Stevens’ testimony of his drug purchases

from appellant was supported by the testimony of the detectives and the video clips and still

photographs of the drug transactions.

       The trial court was well aware of the doubts raised regarding Stevens’ credibility.

Stevens admitted at trial that he became an informant after he was arrested for possessing

cocaine and that he was never tried for that offense. He also acknowledged to the trial judge that

he regularly used cocaine. He testified that he was paid $100 for each buy and that he had no

other income except for disability benefits. The parties stipulated that Stevens had been

previously convicted of nine felonies.

       “The credibility of the witnesses and the weight accorded the evidence are matters solely

for the fact finder who has the opportunity to see and hear that evidence as it is presented.”

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). “The

conclusions of the fact finder on issues of witness credibility ‘may only be disturbed on appeal if

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this Court finds that [the witness’] . . . testimony was inherently incredible, or so contrary to

human experience as to render it unworthy of belief.’” Moyer v. Commonwealth, 33 Va. App. 8,

28, 531 S.E.2d 580, 590 (2000) (en banc) (alteration in original) (quoting Robertson v.

Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417, 419 (1991)) (internal quotation marks

omitted). The record on appeal supports the trial court’s finding that the Commonwealth’s

evidence was competent, not inherently incredible, and sufficient to prove appellant’s guilt

beyond a reasonable doubt.

                           STEVENS’ PRIOR FELONY CONVICTIONS

        Appellant contends that the trial court erred by not allowing him to cross-examine Stevens

about the nature of his prior felony convictions. 1 However, after the trial court rejected appellant’s

attempt to elicit the nature of Stevens’ prior convictions, appellant failed to proffer the evidence

which he sought to admit. Consequently, there is no evidence in the record from which we can

determine whether the trial court erred in failing to allow appellant to elicit testimony from Stevens

regarding the nature of his prior felony convictions. If “‘testimony is rejected before it is delivered,

an appellate court has no basis for adjudication unless the record reflects a proper proffer.’” Ray v.

Commonwealth, 55 Va. App. 647, 649, 688 S.E.2d 879, 880 (2010) (quoting Whittaker v.

Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977)).

        Because appellant failed to proffer the nature of Stevens’ prior felony convictions to the trial

court, we are unable to conclude from the record on appeal that the trial court erred in denying

appellant the opportunity to cross-examine Stevens regarding the nature of his prior felony

convictions.




        1
         A trier of fact is “entitled to know the number and nature” of a witness’ prior felony
convictions. Hummel v. Commonwealth, 217 Va. 548, 550, 231 S.E.2d 216, 217 (1977).
                                                   -4-
                         REQUEST TO CONSOLIDATE INDICTMENTS

        Appellant further contends the trial court erred in refusing to merge indictment No.

CR08-F-6927, distribution of cocaine on October 20, 2008, and indictment No. CR08-F-6928,

distribution of heroin on October 20, 2008. He argues that because the drugs were sold in a single

transaction and violated Code § 18.2-248(C) and that the sale of heroin and cocaine are punished

equally, the trial court erred in merging the two indictments.2 We disagree.

        “It is well settled that two or more distinct and separate offenses may grow out of a single

incident or occurrence, warranting the prosecution and punishment of an offender for each.” Jones

v. Commonwealth, 208 Va. 370, 375, 157 S.E.2d 907, 910 (1967).

                A test of the identity of acts or offenses is whether the same evidence
                is required to sustain them; if not, then the fact that several charges
                relate to and grow out of one transaction or occurrence does not
                make a single act or offense where two separate acts or offenses are
                defined by statute as in the instant case.

Hundley v. Commonwealth, 193 Va. 449, 451, 69 S.E.2d 336, 337 (1952).

        Stevens testified that he bought four baggies of cocaine for $100 on October 20, 2008.

He also testified that he purchased one bag of heroin from appellant for $25 during that visit.

The Commonwealth obtained two indictments against appellant for the October 20, 2008

transactions. Indictment No. CR08-F-6927 charged appellant with selling “a schedule II

controlled substance to-wit: Cocaine” on October 20, 2008. Indictment No. CR08-F-6928

charged appellant with selling “a schedule I controlled substance, to-wit: Heroin” on October 20,

2008.




        2
          For the first time in his brief on appeal, appellant argues that the single larceny doctrine
should be applied. We “will not consider an argument on appeal which was not presented to the
trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998); see
Rule 5A:18.
                                                    -5-
        The record proved that appellant made two separate and distinct sales of different drugs on

the same day. One sale involved cocaine, and the other involved heroin. The same evidence is not

required to sustain both charges. Hundley, 193 Va. at 451, 69 S.E.2d at 337. Accordingly, we

conclude the trial court did not err in refusing to merge the separate indictments charging sales of

different drugs into a single indictment.

                                            CONCLUSION

        For the foregoing reasons, we hold that the trial court did not err in finding the evidence

sufficient to convict appellant of two indictments charging distribution of cocaine and two

indictments charging distribution of heroin. We are unable to conclude from the record on appeal

that the trial court erred in denying appellant the opportunity to cross-examine Stevens regarding the

nature of his prior felony convictions because appellant failed to proffer the nature of Stevens’ prior

felony convictions to the trial court. Finally, we hold that the trial court did not err in refusing

appellant’s motion to merge two separate indictments arising out of the October 20, 2008 drug

transaction with Stevens, one charging distribution of heroin and one charging distribution of

cocaine, into a single indictment charging a single offense for trial. Accordingly, we affirm

appellant’s convictions.

                                                                                          Affirmed.




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