James Donald Dickenson, II v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: April 15, 2003
• Docket: 1095021
• Status: Unpublished

Opinion

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]

- 2 - 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.

- 3 - 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

- 4 - 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

- 5 - 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.

- 6 - 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.

- 7 - 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.

- 8 - 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

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.

- 9 -