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] 

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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. 

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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 

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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 

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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. 

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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. 

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 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. 

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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 

handwriting. 

 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. 

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