Deshawn Reynolds v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Friedman, Callins and White
DESHAWN REYNOLDS
MEMORANDUM OPINION*
v. Record No. 0508-22-3 PER CURIAM
JULY 18, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
(Matthew S. T. Clark, on brief), for appellant.
(Jason S. Miyares, Attorney General; Jason D. Reed, Assistant
Attorney General, on brief), for appellee.
Following a bench trial, the trial court convicted Deshawn Reynolds of two counts of
distributing cocaine as a third or subsequent offense and sentenced him to forty years’ incarceration
with twenty years suspended.1 Reynolds contends that the evidence was insufficient to sustain his
convictions because the testimony of two confidential informants was inherently incredible as a
matter of law. Reynolds also argues that the trial court erroneously admitted two certificates of
analysis at trial because “the Commonwealth failed to establish chain of custody of the purported
drugs.” After examining the briefs and record in this case, the panel unanimously holds that oral
argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a);
Rule 5A:27(a). For the following reasons, we affirm the trial court’s judgment.
*
This opinion is not designated for publication. See Code § 17.1-413(A).
1
The trial court dismissed three counts of possessing a firearm while distributing cocaine,
two counts of possessing a firearm after conviction of a violent felony, and one count of
distributing cocaine.
BACKGROUND
On appeal, we review the evidence “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)). Doing so requires us to “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 November 28, 2018, Henry County Sheriff’s Investigator Ben Whitlock and
Lieutenant Timothy Brummit met two paid confidential informants, Patrick Golden and Eric
Ellerbee, to conduct an undercover narcotics investigation of Reynolds, a suspected cocaine
dealer. At Investigator Whitlock’s direction, Golden called Reynolds and arranged to meet him
at a car wash to purchase an “eight ball” of cocaine.2 Investigator Whitlock gave Golden $170 of
“Henry County Sheriff’s Office funds” to make the purchase and instructed Ellerbee to drive
Golden to the car wash. Golden wore a recording device that transmitted an audio and video
recording to Investigator Whitlock in “real time.”3 Golden kept the device concealed in his
pocket while traveling to and from the car wash, removing it only during the drug transaction
with Reynolds.4
2
According to Golden’s trial testimony, the term “eight ball” is a colloquialism referring
to 3.5 grams of cocaine.
3
At trial, Investigator Whitlock testified that he did not instruct Golden “how to
manipulate the device or turn it on and off.” Golden also testified that he did not “know how to
turn the [recording] device on or off or manipulate it.”
4
At trial, Golden acknowledged that the video from the recording device was “blacked
out” while it remained in his pocket, but he maintained that was “the only time it would be
blacked out” because Golden removed the device from his pocket when “doing the deal.”
-2-
Before allowing them to depart, Investigator Whitlock searched Golden and Ellerbee to
confirm that they did not have narcotics.5 Lieutenant Brummit also searched Ellerbee’s car and
verified that it did not contain drugs.6 Ellerbee then got in his car and drove Golden directly to
the car wash to meet Reynolds. Investigator Whitlock and Lieutenant Brummit followed the
informants to the car wash and parked on a hill nearby.
At the car wash, Ellerbee saw Reynolds waiting in a vehicle and parked behind it.
Golden got into the front passenger seat of Reynolds’ car, paid him $170 for an “eight ball” of
cocaine, placed the drugs in his pocket, and returned to Ellerbee’s vehicle. Investigator Whitlock
and Lieutenant Brummit then followed Ellerbee and Golden back to their original “meet
location.” When they arrived, Golden handed Investigator Whitlock the recording device and a
clear plastic bag containing a “white powder substance.” Investigator Whitlock searched Golden
and Ellerbee and confirmed that they did not have any remaining cash or narcotics. Lieutenant
Brummit also searched Ellerbee’s car and verified that it did not contain drugs. Subsequent
forensic testing established that the white powder substance, including innermost packaging,
weighed 4.426 grams and contained cocaine, a Schedule II controlled substance.
On December 13, 2018, Investigator Darrell Foley and Lieutenant Brummit had Golden
and Ellerbee perform another “controlled buy” from Reynolds at the car wash using the same
procedure as before. After searching the informants to confirm that they did not have any
narcotics,7 Investigator Foley gave Golden a recording device and $170 to purchase cocaine from
5
Investigator Whitlock testified at trial that he searched the informants’ “[o]uter clothing
garments . . . from head to toe,” including “any jacket, shoes, hats . . . .”
6
Lieutenant Brummit testified at trial that he searched the “interior and exterior” of
Ellerbee’s car, including the “trunk compartment,” by “starting on the driver’s side” and
“working . . . around to the passenger side in a counterclockwise motion.”
7
Investigator Foley testified at trial that he searched Ellerbee and Golden “from top to
bottom, head to toe,” but did not search their underwear.
-3-
Reynolds. Lieutenant Brummit also searched Ellerbee’s car and verified that it did not contain
any drugs.8 Ellerbee got in his car and drove Golden to the car wash while the investigators
followed them from a safe distance. Golden kept the recording device in his pocket and removed
it only during the subsequent drug transaction.
At the car wash, Ellerbee parked and Golden approached Reynolds’ vehicle. Golden paid
Reynolds $170 for an “eight ball,” placed it in his pocket, and returned to Ellerbee’s car.
Investigator Foley and Lieutenant Brummit then followed Ellerbee and Golden back to the “meet
location,” where Golden handed Investigator Foley the recording device and a clear plastic
baggie containing an “off-white chunk substance.” Investigator Foley searched the informants
again and confirmed that they did not have any remaining cash or drugs. Lieutenant Brummit
also searched the vehicle and verified that it did not contain any drugs. Forensic testing
established that the “off-white chunk substance,” including innermost packaging, weighed three
grams and contained cocaine, a Schedule II controlled substance.
The audio and video recordings from the recording device Golden wore during each
controlled buy established that at some point during this first outing, Golden stated, “[T]his shit
is wasting everywhere.” Golden also mentioned paying someone $120. In addition, during the
return trip from the first controlled buy, Ellerbee’s car stopped, a car door opened, and someone
said, “I’ll see you later.”
8
Lieutenant Brummit testified at trial that he searched Ellerbee’s car in the same manner
as during the first undercover investigation.
-4-
At trial, Golden and Ellerbee testified9 that they did not “make any stops” when traveling
to and from the car wash for each controlled buy. Golden also denied altering the drugs he
purchased from Reynolds or withholding any of the funds the investigators provided to purchase
them. Admitting that he told Ellerbee “this shit is wasting everywhere,” Golden explained that
he did so because Reynolds had “had coke and shit everywhere in his car” when Golden bought
drugs from him. Golden also maintained that he paid Reynolds $170, not $120, during each
controlled buy, although Reynolds had mentioned previously selling “a crackhead a fifty dollar
piece of rock for a hundred and twenty” dollars. In addition, Golden denied knowing that the
recording device he wore would transmit only “blacked out” video images to the investigators
unless he removed the device from his pocket, although Investigator Foley testified that Golden
was aware of this. Golden also denied knowledge of the drug trade, even though Investigator
Whitlock testified that Golden was familiar with drug transactions.
Investigator Whitlock testified that he did not see Ellerbee stop his car when driving to
and from the first controlled buy, although he sometimes lost sight of Ellerbee’s car for a “split
second.” He also watched and listened to the transmission from Golden’s recording device while
following Ellerbee. Investigator Brummit testified that he did not see the informants make any
unscheduled stops during the first undercover investigation. Nevertheless, he stated, “[T]he area
we met in before this deal and after was at that time secured by a gate and a guard,” so it was
“[p]ossible that [the informants] stopped to get us ahead so that they could follow us there.” In
9
During their testimony, Golden and Ellerbee acknowledged their criminal records:
Golden, a prior misdemeanor conviction from 2018 for providing false identification to law
enforcement; Ellerbee, eight felony convictions and two misdemeanor convictions for offenses
involving moral turpitude. Ellerbee and Golden also testified that police paid them for
performing each controlled buy.
-5-
addition, Investigator Foley testified that Ellerbee and Golden drove directly to and from the
second controlled buy and Foley monitored Golden’s recording device as they did so.10
Reynolds objected to the certificates of analysis for the two purchases.11 At the
conclusion of the evidence, Reynolds moved to strike the charges, arguing that Golden and
Ellerbee’s testimony was inherently incredible as a matter of law. The trial court denied the
motions in relevant part and convicted Reynolds of two counts of distributing cocaine as a third
or subsequent offense. Reynolds appeals.
ANALYSIS
I. Sufficiency
Reynolds contends that the evidence was insufficient to sustain his convictions for
distributing cocaine as a third or subsequent offense because Golden and Ellerbee’s testimony
was inherently incredible as a matter of law. Reynolds does not dispute that the informants’
testimony, if believed, was sufficient to prove the elements of cocaine distribution beyond a
reasonable doubt. Rather, he asserts that Golden and Ellerbee’s criminal records, motive to
fabricate their claims, and inconsistencies in their accounts rendered their testimony unworthy of
belief. We disagree.
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original)
10
At trial, the Commonwealth also introduced certified copies of Reynolds’ prior
convictions from 2008 for distributing cocaine and three counts of distributing cocaine as a
second offense. In addition, the Commonwealth introduced the audio and video recordings from
the recording device Golden wore during each undercover investigation. Finally, the
Commonwealth introduced images from the video recordings that depicted Reynolds packaging
the cocaine he sold to Golden.
11
The Commonwealth asserts that the objections were too vague to preserve Reynolds’
chain of custody arguments and that Reynolds failed to obtain any specific ruling to this point.
-6-
(quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does
not ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204,
228 (2018)). “Rather, the relevant question is whether ‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v.
Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193
(2009)). “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.’” McGowan, 72 Va. App. at 521 (quoting Chavez v.
Commonwealth, 69 Va. App. 149, 161 (2018)).
Such deference stems, in part, from the trial court’s “opportunity to observe the testimony
and demeanor of all witnesses.” Lopez v. Commonwealth, 73 Va. App. 70, 81 (2021).
Accordingly, settled principles dictate that “[d]etermining the credibility of witnesses . . . is
within the exclusive province of the [fact finder], which has the unique opportunity to observe
the demeanor of the witnesses as they testify.” Dalton v. Commonwealth, 64 Va. App. 512, 525
(2015) (second alteration in original) (quoting Lea v. Commonwealth, 16 Va. App. 300, 304
(1993)). “[T]he conclusions of the fact finder on issues of witness credibility may be disturbed
on appeal only when we find that the witness’ testimony was ‘inherently incredible, or so
contrary to human experience as to render it unworthy of belief.’” Ragsdale v. Commonwealth,
38 Va. App. 421, 429 (2002) (quoting Ashby v. Commonwealth, 33 Va. App. 540, 548 (2000)).
“Evidence is not ‘incredible’ unless it is ‘so manifestly false that reasonable men ought not to
believe it’ or ‘shown to be false by objects or things as to the existence and meaning of which
reasonable men should not differ.’” Gerald v. Commonwealth, 295 Va. 469, 487 (2018) (quoting
Juniper v. Commonwealth, 271 Va. 362, 415 (2006)).
-7-
The record supports the trial court’s finding that Golden and Ellerbee’s testimony was not
inherently incredible. At trial, Golden testified that he purchased cocaine from Reynolds on two
separate occasions. Consistent with that testimony, Golden’s video recorded Reynolds holding
and packaging the cocaine he sold to Golden. See Lambert v. Commonwealth, 70 Va. App. 740,
759-60 (2019) (holding that witness’s testimony was not inherently incredible when corroborated
by other evidence). The balance of the evidence also corroborated Golden’s testimony that he
did not alter the cocaine Reynolds sold to him or steal any of the money the investigators
provided to purchase it. At trial, Investigators Whitlock and Foley testified that they thoroughly
searched Golden and Ellerbee before and after each drug transaction and confirmed that neither
informant had withheld any cash or narcotics. Lieutenant Brummit also searched Ellerbee’s
vehicle before and after each drug deal and verified that it did not contain drugs. The
investigators further mitigated any risk of Golden or Ellerbee improperly disposing of the drugs
or money by following them to and from the car wash for each controlled buy and ensuring that
Ellerbee and Golden did not deviate from their mission.
Although Golden and Ellerbee were paid informants with criminal records, that
circumstance did not render their testimony inherently incredible. See Yates v. Commonwealth, 4
Va. App. 140, 144 (1987) (holding accomplice’s testimony pursuant to a plea agreement was not
inherently incredible despite his felony record and self-interest in testifying). Rather, the trial
court was entitled to consider that circumstance and weigh Golden and Ellerbee’s testimony
accordingly. Id. Moreover, the trial court was not required to accept Golden’s testimony in toto.
To the contrary, a “fact finder’s evaluations of credibility are not limited to choosing between
competing accounts offered by different witnesses,” but include “resolving conflicts in a single
witness’s testimony, accepting that part of the testimony it deems credible and rejecting the
portion it deems incredible.” Commonwealth v. McNeal, 282 Va. 16, 22 (2011) (first citing
-8-
Hamilton v. Commonwealth, 279 Va. 94, 105 (2010); and then citing Hopkins v. Commonwealth,
230 Va. 280, 293 (1985)). Thus, the trial court could reject Golden’s explanations concerning
the “blacked out” video and his denial of knowledge of the drug trade as implausible while
accepting the rest of his testimony as credible. Id.In sum, the record supports the conclusion that Golden and Ellerbee’s testimony was not
inherently incredible as a matter of law. Therefore, a reasonable finder of fact could rely on the
informants’ testimony and conclude beyond a reasonable doubt that Reynolds was guilty of two
counts of distributing cocaine as a third or subsequent offense. Accordingly, the trial court did
not err in denying Reynolds’ motion to strike.
II. Chain of Custody
Reynolds argues that the trial court erred in admitting the certificates of analysis at trial
because “the Commonwealth failed to establish chain of custody of the purported drugs.”
Specifically, Reynolds asserts that chain of custody was not established because Golden’s testimony
that he did not alter the drugs he purchased from Reynolds was inherently incredible due to
Golden’s criminal history, motive to fabricate the allegations, and inconsistencies in his account.
Reynolds’ arguments regarding chain of custody are based on mere speculation. When
considering an admissibility issue, this Court must “view the evidence in the light ‘most
favorable to the Commonwealth as the prevailing party on this issue in the circuit court.’” Fields
v. Commonwealth, 73 Va. App. 652, 672 (2021) (quoting Grattan v. Commonwealth, 278 Va.
602, 617 (2009)). “The determination on a chain of custody challenge lies with the trial court’s
broad discretion and will not be overturned on appeal absent an abuse of that discretion.” Pope
v. Commonwealth, 60 Va. App. 486, 511 (2012) (citing Crews v. Commonwealth, 18 Va. App.
115, 118 (1994)). Additionally, as to chain of custody, the party offering the evidence must
show with reasonable certainty that there has been no alteration or substitution of the evidence,
-9-
“[b]ut the burden is not absolute that ‘all possibility of tampering’ be eliminated.” Robinson v.
Commonwealth, 212 Va. 136, 138 (1971).12
Reynolds essentially argues that there is a possibility of tampering because there was a
time when Golden was monitored by law enforcement via audio, rather than video. However,
this argument is mere speculation. See Reedy v. Commonwealth, 9 Va. App. 386, 391 (1990)
(finding that mere speculation does not amount to “an abuse of discretion to admit the evidence
and let what doubt there may be go to the weight to be given the evidence”). “The
Commonwealth is not required to exclude every conceivable possibility of substitution,
alteration, or tampering.” Id. at 392 (quoting Pope v. Commonwealth, 234 Va. 114, 121 (1987)).
Moreover, “[w]hether or not Golden deviated in some minor way from investigators’ procedures,
as alleged by Reynolds, would go the weight rather than the admissibility of the evidence.” See
Pope, 60 Va. App. at 511.
The evidence presented here included the thorough steps taken by investigators to search
both Golden and Ellerbee before and after each purchase as well as the steps taken to monitor
Golden and Ellerbee as they travelled to and from the controlled buys. The evidence presented
by the prosecution was sufficient to lay a foundation of admissibility. The trial court properly
rejected Reynolds’ speculative attack on the chain of custody.
CONCLUSION
For the above reasons, we affirm the trial court’s judgment.
Affirmed.
12
The Commonwealth claims the chain of custody objections were waived below. We
assume without deciding that the objections are preserved.
- 10 -