COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felt on, 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, Ch amplin, Foreman & Rockecharlie, on brief), for appellant. Leah A. Darron, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.
Deandre Tydrell Gay, s/k/a Deandre Tydnell Ga y, (“appellant”) appeal s his convictions for two charges of distribution of cocai ne and two charges of distribution of heroin in violation of Code § 18.2-248(C). He contends the trial court erred in (1) findi ng the evidence sufficient to sustain his convictions, (2) not allowing him to cross-examine a Commonwea lth’s witness, a confidential informant, about the nature of his prior felony convictions, and (3) refusi ng 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 conversan t with the record in this cas e, we recite only those facts and incidents of the proceedings as are n ecessary to the dispos ition of this appeal.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - SUFFICIENCY OF THE EVIDENCE Appellant contends the eviden ce 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 Commonwealt h, 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 convic tion, the Court will affirm the judgment unless the judgment is plainly wrong or w ithout 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 wa s given $60 and dropped o ff on 25th Street in the City of Richmond. Stevens purchased three ba gs of cocaine and provided a description of the seller to Detective Black. St evens identified appellant as th e person who sold the drugs to him. On October 20, 2008, Detective Black dropped St evens off at the same location with $160 and instructions to purchase drugs from appella nt. 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 tr ansported Stevens to 25th Street with instructions to buy drugs from appellant. Within six minutes of being dropped off, Stevens- 3 - 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 oc curred through the audio equipment. He also viewed the videos of the transa ctions at a later time. Detect ives 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 tran sactions between Stevens and a ppellant. Stevens identified appellant as the dealer in the video. Detectives Black and Wooten each te stified in depth as to the strict procedures followed for each “buy-wal k.” 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 trie d for that offense. He also ac knowledged 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 disabili ty benefits. The pa rties stipulated that Stevens had been previously convicted of nine felonies. “The credibility of the witnesses and the wei ght 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 i ssues of witness credibility ‘may only be disturbed on appeal if- 4 - this Court finds that [the witness’] . . . testim ony was inherently incredible, or so contrary to human experience as to rende r it unworthy of belief.’” Moyer v. Commonwealth , 33 Va. App. 8, 28, 531 S.E.2d 580, 590 (2000) ( en banc ) (alteration in or iginal) (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 th e trial court’s finding that the Commonwealth’s evidence was competent, not inherently incred ible, and sufficient to prove appellant’s guilt beyond a reasonable doubt. STEVENS’ PRIOR F ELONY 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 St evens’ prior convictions, appellant failed to proffer the evidence which he sought to admit. Consequently, there is no evidence in the reco rd 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 convicti ons. If “‘testimony is rej ected before it is delivered, an appellate court has no basis for adjudication unless the record reflect s 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 Steven s’ prior felony convictions to the trial court, we are unable to conclude from the record on appeal that the tria l court erred in denying appellant the opportunity to cr oss-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).- 5 - REQUEST TO CONSOLIDATE INDICTMENTS Appellant further contends the trial court e rred in refusing to merge indictment No. CR08-F-6927, distribution of co caine 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 prosecutio n 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 tr ansaction or occu rrence 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 baggi es of cocaine for $100 on October 20, 2008. He also testified that he purchased one bag of he roin 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 char ged appellant with selling “a schedule II controlled substance to-wit: Cocaine” on Oc tober 20, 2008. Indictment No. CR08-F-6928 charged appellant with selling “a schedule I cont rolled substance, to-wi t: Heroin” on October 20, 2008.

2 For the first time in his brie f on appeal, appellant argues th at the single larceny doctrine should be applied. We “will not consider an argument on ap peal 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.- 6 - The record proved that appellant made two sepa rate and distinct sales of different drugs on the same day. One sale involved cocaine, and the other in volved heroin. The sa me 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 tr ial court did not err in finding the evidence sufficient to convict appellant of two indict ments charging distribution of cocaine and two indictments charging distribution of heroin. We ar e unable to conc lude from the re cord on appeal that the trial court erred in denying appellant the opportunity to cross-exam ine Stevens regarding the nature of his prior felony convictions because appella nt failed to proffer the na ture of Stevens’ prior felony convictions to the trial court. Finally, we hold that th e trial court did not err in refusing appellant’s motion to me rge two separate indict ments arising out of the October 20, 2008 drug transaction with Stevens, one charging distribut ion of heroin and one ch arging distribution of cocaine, into a single indictment charging a single offense for tr ial. Accordingly, we affirm appellant’s convictions. Affirmed.