Brian Lee Cheatham v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 22, 2022
• Docket: 0293222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Senior Judges Clements, Haley and Petty

BRIAN LEE CHEATHAM MEMORANDUM OPINION* v. Record No. 0293-22-2 PER CURIAM NOVEMBER 22, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY Joseph Michael Teefey, Jr., Judge

(Steven P. Hanna, on brief), for appellant. Appellant submitting on brief.

(Jason S. Miyares, Attorney General; Mason D. Williams, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Following a bench trial, the trial court convicted Brian Lee Cheatham of possession of

heroin. The trial court sentenced Cheatham to five years’ incarceration with four years suspended.

Cheatham argues that the evidence was insufficient to support the conviction because “the

Commonwealth failed to introduce the actual controlled substance into evidence.”

Cheatham’s counsel has moved for leave to withdraw in accordance with Anders v.

California, 386 U.S. 738, 744 (1967). The motion to withdraw is accompanied by a brief referring

to the part of the record that might arguably support this appeal. A copy of that brief has been

furnished to Cheatham with sufficient time for him to raise any matter that he chooses, along with a

motion requesting an extension of time to allow him to file pro se supplemental pleadings.

Cheatham has not filed any pro se supplemental pleadings.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. After examining the briefs and record in this case, the panel has determined that this appeal

is wholly frivolous and 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 trial court’s

judgment.

BACKGROUND

We recite the facts “in the ‘light most favorable’ to the Commonwealth, the prevailing party

in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting

Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Therefore, we “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 and all fair inferences to be drawn therefrom.” Cady, 300 Va. at

329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

On August 15, 2018, Dinwiddie County Sheriff’s Corporal Ty Moore responded to a report

of shoplifting at a Dollar General in Dinwiddie County. Police previously detained Cheatham as he

was leaving the store in his vehicle. Corporal Moore reviewed the store’s video surveillance and

identified the backpack Cheatham used in the larceny. Cheatham possessed the backpack when he

entered the store, exited the store, and upon his arrest. Corporal Moore also reviewed Dollar

General’s video surveillance on July 23, 2018, and August 9, 2019, which showed that Cheatham

used the same backpack to commit larcenies on those dates.

Inside the backpack, Corporal Moore found store merchandise and returned it to the store.

At the police station, Corporal Moore also found in the backpack an Altoids tin, containing a folded

lottery ticket, a partial red straw, and a white powdery substance. Corporal Moore submitted the

items found in the tin to the Department of Forensic Science.

-2- At trial, the Commonwealth introduced the certificate of analysis without objection from

Cheatham. The certificate indicates that the Department of Forensic Science examined “one folded

lottery paper . . . with residue” and determined that it contained heroin.

During Corporal Moore’s cross-examination, he stated that another person was driving

Cheatham’s vehicle during the larceny. Corporal Moore admitted that when he searched the

backpack, he initially did not notice the Altoids tin. Corporal Moore remembered the backpack

from the previous video surveillance because he reviewed his notes and the general district court

recently had heard Cheatham’s larceny case. Corporal Moore’s memory did not diminish with

respect to the backpack. Corporal Moore, however, was unable to remember what Cheatham was

wearing during any of the previous larcenies.

After the Commonwealth presented its evidence, Cheatham moved to strike, arguing that the

Commonwealth failed to prove that the residue was heroin because it only introduced into evidence

the certificate of analysis and not the heroin itself. The trial court denied the motion.

Cheatham testified that his friend gave him a ride to the Dollar General. Cheatham

explained that he did not bring his own bag, so he took a backpack from the van, unaware that it

contained the Altoids tin. On cross-examination, Cheatham denied that he used that same backpack

to shoplift on the two previous occasions. He did not tell Corporal Moore about the backpack when

he was arrested because Corporal Moore did not ask him about it. Cheatham also admitted that he

previously had been convicted of felonies.

At the conclusion of the evidence, Cheatham argued that the evidence was insufficient to

support the conviction. The trial court did not find Cheatham credible, based in part on Cheatham’s

possession of the backpack during the previous larcenies. The trial court convicted Cheatham of

possession of heroin and sentenced him to five years’ incarceration, with four years suspended.

Cheatham appeals.

-3- ANALYSIS

Cheatham argues that the Commonwealth failed to introduce the actual heroin into

evidence, which was “instrumental in proving the corpus delicti of the crime.” He asserts that

introducing the certificate of analysis without introducing the heroin itself is “legally insufficient.”

“On review of the sufficiency of the evidence, ‘the judgment of the trial court is presumed

correct and will not be disturbed unless it is plainly wrong or without evidence to support it.’”

Ingram v. Commonwealth, 74 Va. App. 59, 76 (2021) (quoting Smith v. Commonwealth, 296 Va.

450, 460 (2018)). The Court “does not ‘ask itself whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt.’” Cady, 300 Va. at 329 (quoting Williams v.

Commonwealth, 278 Va. 190, 193 (2009)). Instead, we ask “whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Sullivan v.

Commonwealth, 280 Va. 672, 676 (2010)). “If there is evidentiary support for the conviction, ‘the

reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from

the conclusions reached by the finder of fact at the trial.’” Eberhardt v. Commonwealth, 74

Va. App. 23, 31 (2021) (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)). “The

nature of [an] illegal substance . . . need not be proved by direct evidence but can be demonstrated

by circumstantial evidence.” Hill v. Commonwealth, 8 Va. App. 60, 63 (1989); see Reed v.

Commonwealth, 36 Va. App. 260, 269-70 (2001) (holding that a certificate of analysis was

sufficient to convict defendant).

In the instant case, Corporal Moore’s testimony and the introduction of the certificate of

analysis were sufficient to prove that the substance found in the Altoids tin was heroin. It was the

Commonwealth’s prerogative to select how it wished to prove that the substance was heroin. See

Dunaway v. Commonwealth, 52 Va. App. 281, 301 (2008) (“Indeed ‘lay testimony and

circumstantial evidence may be sufficient, without the introduction of an expert chemical analysis’

-4- to establish the identity of an illegal drug.” (quoting United States v. Dolan, 544 F.2d 1219, 1221

(4th Cir.1976))). In the Altoids tin, Corporal Moore found a folded lottery ticket and white powdery

substance alongside a straw—an apparatus commonly used to consume heroin. In addition, the

substance was found in an Altoids tin—an innocuous container that appeared to contain breath

mints, but in this case, actually contained an illicit substance. A reasonable factfinder could

determine that a person would use this type of container to store illicit substances discreetly. The

certificate of analysis corroborated Corporal Moore’s testimony and identified the substance as

heroin. Here, the record supports the factfinder’s determination that the item in question was heroin

without the introduction of the substance into evidence.

CONCLUSION

Accordingly, we affirm the trial court’s judgment and grant the motion for leave to

withdraw. See Anders, 386 U.S. at 744. This Court’s records shall reflect that Brian Lee Cheatham

is now proceeding without the assistance of counsel in this matter and is representing himself on

any further proceedings or appeal.

Affirmed.

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