James Donald Dickenson, II v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia
JAMES DONALD DICKENSON, II
MEMORANDUM OPINION * BY
v. Record No. 1095-02-1 JUDGE D. ARTHUR KELSEY
APRIL 15, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
John D. Konstantinou (Williamsburg Law Group,
PLC, on brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
James Dickenson claims that the trial court abused its
discretion by overruling his motion for the appointment of a
handwriting expert at his trial for forgery and uttering. For
the reasons that follow, we affirm the trial court's decision.
I.
On appeal, we review the evidence "in the light most
favorable to the Commonwealth" and "accord the Commonwealth the
benefit of all inferences fairly deducible from the evidence."
Morrisette v. Commonwealth, 264 Va. 386, 389, 569 S.E.2d 47, 50
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
(2002); see also Holsapple v. Commonwealth, 39 Va. App. 522,
528, 574 S.E.2d 756, 758-59 (2003) (en banc). That principle
requires us to "discard the evidence of the accused" which
conflicts, either directly or inferentially, with the
Commonwealth's evidence. Holsapple, 39 Va. App. at 528, 574
S.E.2d at 758-59 (citation omitted); see also Wactor v.
Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).
Around May 20, 2001, James Dickenson asked his friend,
Perry Meredith, if he could stay with Meredith for a week.
Dickenson was having problems with his girlfriend at the time
and believed staying with Meredith would remedy the situation.
Meredith agreed.
During Dickenson's six-day stay with Meredith, the two men
smoked at least "two or three hundred dollars worth" of cocaine
daily. Using Meredith's tax return to fund the cocaine binge,
Meredith usually went with Dickenson to "go in and purchase" the
cocaine. Though Meredith admitted handing Dickenson cash to buy
cocaine at times during the week, he unequivocally declared that
he "never wrote him any checks."
While heading to work one morning during Dickenson's stay,
Meredith stopped by his bank's ATM to withdraw cash. To his
surprise, Meredith learned that his account had much less money
than he had expected. He returned home, called a bank
representative, and, upon learning that unauthorized checks had
been drawn on his account, "went over to where [he] kept [his]
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checkbook, and it wasn't there." Meredith informed the bank
that his checkbook was missing and ordered the bank to "close
the account." On May 30, Meredith visited his bank, filed a
complaint, and executed affidavits of fraudulent transactions
for his missing funds.
Cathy Forrest, a fraud investigator for SunTrust Bank,
began investigating Meredith's complaint. From the bank's
files, Forrest recovered the records for Meredith's missing
checks (numbered 711 and 714). The files indicated that check
number 711, for $150, was "negotiated on May 22nd at 2:17 in the
afternoon," and check number 714, also in the amount of $150,
"was negotiated on May the 24th at 4:17 in the afternoon."
Forrest also presented photographs taken by the bank's security
camera, which showed the "individual who passed the checks."
The photographs also showed bank tellers Kellee Manning and
Kristy Maynor cashing, respectively, checks 711 and 714. Both
checks were made payable to, and endorsed by, Dickenson.
A "couple of weeks later," Meredith's checkbook was still
missing, so Meredith "went down to the Newport News Police
Department" and reported the unauthorized use of his checks.
Meredith received a phone call a "couple of days later" from "a
girl named Sharon." Identifying herself as Dickenson's
girlfriend, Sharon informed Meredith that his checkbook was at
her townhouse. Meredith went to her house, recovered the
checkbook, and returned the unused checks to the bank.
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Before trial, Dickenson filed a motion requesting the
appointment of a handwriting expert. "What we want is an
expert, and it can be an employee of the Division of Forensic
Science," Dickenson's counsel requested, "to examine this
gentleman's handwriting and the handwriting on the checks to see
if this man, in his opinion, signed and wrote those checks."
Dickenson's counsel also mentioned the possibility of such
an expert examining Meredith's signature "if the Court deems it
appropriate." Counsel, however, immediately added: "But, I
mean, as far as I'm concerned, if they examine my client's
handwriting and the handwriting on the checks, that would be
sufficient for my point of view." An expert appointed to
examine Dickenson's handwriting, counsel noted in conclusion,
"in fairness" should also look at examples of Meredith's
handwriting.
The trial court denied the motion for a handwriting expert,
holding that Dickenson had not shown a "particularized need."
The case proceeded to trial without any handwriting experts for
either side. Meredith testified that, despite smoking cocaine
on a daily basis during Dickenson's stay, he was "absolutely
certain" that he neither signed his checks nor authorized anyone
to sign on his behalf. Then, viewing the photographs from the
bank's security camera, Meredith identified Dickenson as the
individual who presented the fraudulent checks to the bank. In
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one photograph, in fact, Meredith recognized that Dickenson was
wearing Meredith's "black Budweiser tee-shirt."
Following the presentation of evidence, the trial court
noted that the Commonwealth, by proving that Dickenson had
presented forged checks to the bank, provided prima facie
evidence of Dickenson's guilt for both forgery and uttering.
With the defense unable to rebut the Commonwealth's evidence,
the court found Dickenson guilty of the two forgery charges as
well as the two uttering charges. The trial court then
sentenced Dickenson to prison for forty years (ten years for
each offense), suspending thirty-seven years and two months of
the sentence.
II.
"An indigent defendant's constitutional right to the
appointment of an expert, at the Commonwealth's expense, is not
absolute." Lenz v. Commonwealth, 261 Va. 451, 462-63, 544
S.E.2d 299, 305 (2001). A defendant "must demonstrate that the
subject which necessitates the assistance of the expert is
'likely to be a significant factor in his defense'" and that
depriving the expert's assistance will be prejudicial. Lenz,
261 Va. at 462, 544 S.E.2d at 305 (quoting Husske v.
Commonwealth, 252 Va. 203, 211, 476 S.E.2d 920, 925 (1996), and
Ake v. Oklahoma, 470 U.S. 68, 82-83 (1965)).
Meeting this burden requires the defendant to show more
than "'mere hope or suspicion that favorable evidence is
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available'" through the expert. Barksdale v. Commonwealth, 31
Va. App. 205, 211, 522 S.E.2d 388, 390 (1999) (quoting Husske,
252 Va. at 212, 476 S.E.2d at 925-26). Instead, the defendant
must show a "particularized need" for the expert's testimony.
Bailey v. Commonwealth, 259 Va. 723, 737, 529 S.E.2d 570, 578
(2000); see also Vinson v. Commonwealth, 258 Va. 459, 467, 522
S.E.2d 170, 175-76 (1999).
A particularized need is "one which is material to the
preparation of his defense . . . and that the denial of such
services would result in a fundamentally unfair trial." Bailey,
259 Va. at 737, 529 S.E.2d at 578. "[W]hether a defendant has
made the requisite showing of a particularized need lies within
the discretion of the circuit court." Lenz, 261 Va. at 462, 544
S.E.2d at 305 (citing Husske, 252 Va. at 212, 476 S.E.2d at
926). Though the trial court has broad discretion, it "must be
exercised reasonably and not arbitrarily or capriciously."
Leitao v. Commonwealth, 39 Va. App. 435, 438, 573 S.E.2d 317,
319 (2002).
The trial court did not abuse its discretion in overruling
Dickenson's request for a handwriting expert "to examine
[Dickenson's] handwriting and the handwriting on the checks to
see if this man, in his opinion, signed and wrote the checks."
Neither forgery nor uttering, the two crimes upon which
Dickenson was tried and convicted, requires direct proof that
the defendant personally forged or altered the checks.
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Under Virginia law, "'possession of a forged check by an
accused, which he claims as a payee, is prima facie evidence
that he either forged the instrument or procured it to be
forged.'" Oliver v. Commonwealth, 35 Va. App. 286, 295, 544
S.E.2d 870, 874-75 (2001) (quoting Fitzgerald v. Commonwealth,
227 Va. 171, 174, 313 S.E.2d 394, 395 (1984)). Meredith's
unequivocal testimony disclaiming the drawer signature on the
check as his own established the forgery predicate for the
inference based upon possession. Dickenson's possession of the
forged check, claiming himself as payee, raised a sufficient
inference of guilt to support his conviction —— despite the lack
of evidence that he personally forged the check. That so, the
denial of an expert to examine Dickenson's handwriting in an
effort to disprove him as the forger did not "result in a
fundamentally unfair trial." Bailey, 259 Va. at 737, 529 S.E.2d
at 578.
Similarly, the offense of uttering, defined as "an
assertion by word or action that a writing known to be forged is
good and valid," Oliver, 35 Va. App. at 295, 544 S.E.2d at
874-75 (citation omitted), contains no requirement that the
defendant forge the writing. See Dillard v. Commonwealth, 32
Va. App. 515, 519, 529 S.E.2d 325, 327 (2000) (requiring only
that known forged writing be passed as valid). Here again, not
having an expert to examine Dickenson's handwriting did not
preclude him from receiving a fundamentally fair trial.
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We do not address whether the denial of an expert to
examine Meredith's handwriting resulted in a fundamentally
unfair trial because Dickenson failed to preserve that issue for
appeal. 1 When addressing the trial court, Dickenson's counsel
focused on the need to examine Dickenson's own handwriting. As
an aside, he said that the expert could also examine Meredith's
handwriting —— but that, as he put it, "as far as I'm concerned,
if they examine my client's handwriting and the handwriting on
the checks, that would be sufficient for my point of view." A
reasonable trial judge would understand that remark to be an
abandonment of any specific, freestanding request for expert
analysis of Meredith's handwriting. See, e.g., Buchanan v.
Commonwealth, 238 Va. 389, 416, 384 S.E.2d 757, 773 (1989)
(holding that counsel's remark, "That would be fine," after
trial judge denied request abandoned the earlier request).
All the more, having conceded the point away in the trial
court, Dickenson can hardly now claim that the absence of expert
analysis of Meredith's handwriting resulted in a fundamentally
unfair trial. Put another way, after taking the position that
it was "sufficient" to have an expert examine his own
1
Under Rule 5A:18, we will not "consider an argument on
appeal which was not presented to the trial court." Morrison v.
Commonwealth, 37 Va. App. 273, 279 n.1, 557 S.E.2d 724, 727 n.1
(2002) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308, 494
S.E.2d 484, 488 (1998)). We also do not address whether the
"good cause" or "ends of justice" exceptions to Rule 5A:18
apply, given that Dickenson does not argue on appeal for either.
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handwriting —— but not Meredith's —— Dickenson cannot reverse
course on appeal and claim it was constitutionally insufficient
to proceed to trial without an expert analysis of Meredith's
handwriting.
III.
In sum, we hold that the trial court did not abuse its
discretion by denying Dickenson's request for an expert to
examine his handwriting to determine if he personally forged the
checks. We offer no opinion on whether an expert evaluation of
Meredith's handwriting should have been ordered, treating the
issue as having been abandoned in the trial court and thus
waived on appeal.
Affirmed.
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