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. 
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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). 
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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. 
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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.