Former Colonial Heights officer accused of transmitting explicit videos from arrestee's cellphone has charges withdrawn

On a written motion from Dinwiddie County Commonwealth’s Attorney Ann Cabell Baskervill, who oversaw a special grand jury that indicted former officer Bryan G. Drake, Judge Steven C. McCallum of Colonial Heights Circuit Court withdrew three counts each of misdemeanor embezzlement and obstructing execution of legal process.

In her motion, Baskervill asked the court to waive her appearance Tuesday because she currently is the only prosecutor left to handle cases in her elected jurisdiction, and she had a docket of cases to handle Tuesday in Dinwiddie Juvenile and Domestic Relations District Court. When Drake’s case was set for trial, her office had three prosecutors, she wrote.

“The commonwealth does not ask for a continuance because the matter has previously been continued,” Baskervill wrote. “The commonwealth respectfully submits that the inability to proceed with trial constitutes good cause in support of its motion” for withdrawing the charges.

Because the charges were withdrawn and not dismissed, Baskervill could reinstate them later.

Defense attorney Peter Eliades planned to fight the charges against his client in court Tuesday. He said Drake admitted a lapse of judgment but that his actions did not rise to the level of a criminal offense.

“Mr. Drake has acknowledged as early as when he was approached by his superiors that he made a mistake,” Eliades said after the hearing. “There was some fatigue involved, he was at the end of his shift, and obviously some impulsiveness was involved.”

“He shared these photos from the phone [of a criminal defendant] that had been seized, to his phone, that was in his car,” Eliades added. “When he finished his shift an hour or two later and went to his car, he deleted them — he realized that this was just a dumb mistake.”

Eliades said a forensic analysis of Drake’s phone would be able to “corroborate 100 percent” that the images he transmitted via text message “weren’t on his phone but for a matter of hours,” and he did not distribute them to anyone else.

Reached yesterday at her office, Baskervill said she had not decided whether to pursue the case further. “I will render a final decision via a report which I will submit to the court,” she said in an email.

Eliades believes the statute of limitations has expired for reinstatement of these particular misdemeanor charges. The general rule, he noted, is that misdemeanor offenses cannot proceed beyond one year from the date of offense.

However, Eliades said there is an exception for petit larceny — a new charge that potentially could be brought in the case.

Drake, 31, who resigned June 12 of last year, was accused of transmitting three videos — each about three to four seconds long — from the phone of a man arrested on drug charges to the officer’s personal phone after police confiscated the arrestee’s phone through a lawful search warrant in March 2017, police said at the time.

Colonial Heights police began a special investigation last June 7 after the arrestee made police aware of the videos. The arrestee, who was charged with possession of marijuana with the intent to distribute it, received the videos from his then-girlfriend. They contain nudity and sexually explicit material.

A special grand jury was empaneled to investigate the case, with Baskervill presenting evidence as a special prosecutor. Drake was suspended from duty pending the outcome of the investigation within 12 hours after police received the allegations against him; he resigned five days later.

Baskervill declined to identify the witness who was unavailable to testify Tuesday. Eliades said he believes it was a member of the Colonial Heights Police Department because the prosecutor previously advised that Drake was accused of embezzling the videos from the department, because the footage was in the agency’s possession when Drake transmitted it to his phone.

“My strong inference ... from the [prosecution’s] representation is that it would have been someone from the Colonial Heights Police Department who was not available today, which I thought was somewhat interesting,” Eliades said.

Eliades said Drake, who loved working as a police officer, has been unemployed since his arrest. He said Drake has tried to find another position in law enforcement without success.