COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Fitzpatrick Argued at Alexandria, Virginia
VERNICE F. EVANS MEMORANDUM OPINION * BY v. Record No. 0771-96-4 JUDGE JERE M. H. WILLIS, JR. FEBRUARY 4, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Quinlan H. Hancock, Judge Ann H. Potter, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
On appeal from her convictions of obtaining money in excess
of $200 by false pretenses, Vernice Evans contends that the trial
court erred (1) in refusing to grant her a recess to procure
civilian clothing, (2) in refusing to admit into evidence the tax
records of a prosecution witness, and (3) in admitting into
evidence the tuition payment records of a private school. We
find no error and affirm the judgments of the trial court.
Louise Hart owned and operated an antiques business in
Fairfax County. Ms. Hart testified that in the fall of 1982,
Evans approached her about purchasing goods comprising an estate
in Philadelphia, Pennsylvania, and, in 1989, approached her about
purchasing goods comprising an estate in Reiserstown, Maryland. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Ms. Hart stated that she made numerous payments to Evans for the
purchase of the estates, writing her checks made payable to cash
and paying her thousands of dollars at a time in cash.
Investigator Athing testified that at his request Ms. Hart
arranged a meeting in September of 1992 to transfer money to
Evans. When Evans and Ms. Hart met in a car in a mall parking
lot, Athing approached and asked Evans to step from the vehicle.
Athing stated that Evans denied any knowledge of purchasing
estates for Ms. Hart's antiques business. Evans told Athing that
Ms. Hart wanted to give her money to purchase food for her
family, and that Ms. Hart often gave her hams and turkeys. At
trial, Evans testified that she neither told Ms. Hart about any
estates, nor received money from Ms. Hart for the purchase of any
estates. I.
At the commencement of trial, defense counsel asked the
court for a thirty minute recess so that Evans' family members
could purchase civilian clothing for her to wear at the jury
trial. The trial court advised counsel that Evans had signed a
document acknowledging that civilian clothing was available and
stating that she did not want to wear civilian clothing. Defense
counsel told the court that Evans' civilian clothing was
"mildewed and smells"; thus, she had chosen not to wear it. The
trial court ruled that if Evans wanted to wear the civilian
clothes she had at the jail, he would continue the matter long
- 2 - enough for her to change her clothes. The trial court stated
further that: "I am familiar with the shopping area, if you will,
immediately adjacent to the area where this Courthouse is
situated and I don't know of any clothing store where they're
going to be able to purchase clothes for her within thirty
minutes." Evans elected to wear jail issue clothing.
We note at the outset that this is not a question concerning
the state's requiring a criminal defendant to stand trial before
a jury in prison attire. See Estelle v. Williams, 425 U.S. 501,
512 (1976). The trial court stated that it would permit Evans to
change into available civilian clothing. It merely denied her
request for a recess so that her family could shop for, and
purchase, additional clothing for her.
The record contains no description of the jail issue
clothing worn by Evans at trial. Thus, we are unable to
determine whether the clothing had characteristics identifying it
as prison attire or whether it had characteristics such that
Evans' appearance while wearing it would in any way prejudice her
defense.
The decision to grant or deny a recess lies within the sound
discretion of the trial court, and will not be reversed on
appeal, absent a showing of both prejudice and an abuse of
discretion. Lowery v. Commonwealth, 9 Va. App. 304, 306-07, 387
S.E.2d 508, 509 (1990). Given its knowledge of the surrounding
merchant districts, the trial court found that it would be
- 3 - impossible for Evans' family to secure additional clothing within
the requested thirty minutes. Defense counsel did not dispute
the trial court's conclusion, asserting only that "[T]here is
. . . the possibility, the likelihood that since there are a
number of stores close by that the family could get her something
within a half hour . . . ."
Moreover, after having indicated her desire to wear jail
attire, Evans failed to request a recess to purchase civilian
clothing until the commencement of her trial. Her failure to
move timely for the opportunity to acquire other clothing
militates strongly in favor of the trial court's decision. Thus,
under the circumstances, we cannot say that the trial court
abused its discretion. 1
On appeal, Evans argues also that the trial court's denial
of the requested recess amounted to violations of due process,
equal protection and the presumption of innocence. We will not
consider these arguments on appeal, because they were not made to
the trial court. Jacques v. Commonwealth, 12 Va. App. 591, 593,
405 S.E.2d 630, 631 (1991) (citing Rule 5A:18).
II.
Evans next contends that the trial court erred in refusing
to admit into evidence the 1990, 1991 and 1992 federal income tax
1 Because we find that the trial court did not abuse its discretion, we do not address whether Evans showed prejudice. Lowery v. Commonwealth, 9 Va. App. 304, 306-07, 387 S.E.2d 508, 509 (1990).
- 4 - returns of Ms. Hart, the prosecution's chief witness. During
cross-examination of Ms. Hart, defense counsel introduced, for
purposes of identification, copies of Ms. Hart's 1990, 1991 and
1992 income tax returns. These were marked for identification as
Defendant's Exhibit Nos. 3, 4 and 5. The following dialogue
occurred at the time that the exhibits were marked for purposes
of identification: [Defense Counsel]: Before I forget, let me just ask you if you can identify these tax returns . . . * * * * * * *
[Defense Counsel]: May we have [Hart's 1990 income tax return] marked as Exhibit 3? I've got a copy. We could use the original, but if we don't have any objection to the copy?
[Commonwealth]: I may have an objection to this, Your Honor, as to why it's relevant.
[Defense Counsel]: I'll show that it's relevant later.
The Court: Well, all he's asked at this point is to have it marked; isn't that right?
[Defense Counsel]: That's correct.
After the exhibits were properly marked, defense counsel did
not further cross-examine Ms. Hart concerning her tax returns or
the information contained therein.
After the Commonwealth completed its case-in-chief, defense
counsel sought the admission of the tax returns into evidence to
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Fitzpatrick Argued at Alexandria, Virginia
VERNICE F. EVANS MEMORANDUM OPINION * BY v. Record No. 0771-96-4 JUDGE JERE M. H. WILLIS, JR. FEBRUARY 4, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Quinlan H. Hancock, Judge Ann H. Potter, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
On appeal from her convictions of obtaining money in excess
of $200 by false pretenses, Vernice Evans contends that the trial
court erred (1) in refusing to grant her a recess to procure
civilian clothing, (2) in refusing to admit into evidence the tax
records of a prosecution witness, and (3) in admitting into
evidence the tuition payment records of a private school. We
find no error and affirm the judgments of the trial court.
Louise Hart owned and operated an antiques business in
Fairfax County. Ms. Hart testified that in the fall of 1982,
Evans approached her about purchasing goods comprising an estate
in Philadelphia, Pennsylvania, and, in 1989, approached her about
purchasing goods comprising an estate in Reiserstown, Maryland. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Ms. Hart stated that she made numerous payments to Evans for the
purchase of the estates, writing her checks made payable to cash
and paying her thousands of dollars at a time in cash.
Investigator Athing testified that at his request Ms. Hart
arranged a meeting in September of 1992 to transfer money to
Evans. When Evans and Ms. Hart met in a car in a mall parking
lot, Athing approached and asked Evans to step from the vehicle.
Athing stated that Evans denied any knowledge of purchasing
estates for Ms. Hart's antiques business. Evans told Athing that
Ms. Hart wanted to give her money to purchase food for her
family, and that Ms. Hart often gave her hams and turkeys. At
trial, Evans testified that she neither told Ms. Hart about any
estates, nor received money from Ms. Hart for the purchase of any
estates. I.
At the commencement of trial, defense counsel asked the
court for a thirty minute recess so that Evans' family members
could purchase civilian clothing for her to wear at the jury
trial. The trial court advised counsel that Evans had signed a
document acknowledging that civilian clothing was available and
stating that she did not want to wear civilian clothing. Defense
counsel told the court that Evans' civilian clothing was
"mildewed and smells"; thus, she had chosen not to wear it. The
trial court ruled that if Evans wanted to wear the civilian
clothes she had at the jail, he would continue the matter long
- 2 - enough for her to change her clothes. The trial court stated
further that: "I am familiar with the shopping area, if you will,
immediately adjacent to the area where this Courthouse is
situated and I don't know of any clothing store where they're
going to be able to purchase clothes for her within thirty
minutes." Evans elected to wear jail issue clothing.
We note at the outset that this is not a question concerning
the state's requiring a criminal defendant to stand trial before
a jury in prison attire. See Estelle v. Williams, 425 U.S. 501,
512 (1976). The trial court stated that it would permit Evans to
change into available civilian clothing. It merely denied her
request for a recess so that her family could shop for, and
purchase, additional clothing for her.
The record contains no description of the jail issue
clothing worn by Evans at trial. Thus, we are unable to
determine whether the clothing had characteristics identifying it
as prison attire or whether it had characteristics such that
Evans' appearance while wearing it would in any way prejudice her
defense.
The decision to grant or deny a recess lies within the sound
discretion of the trial court, and will not be reversed on
appeal, absent a showing of both prejudice and an abuse of
discretion. Lowery v. Commonwealth, 9 Va. App. 304, 306-07, 387
S.E.2d 508, 509 (1990). Given its knowledge of the surrounding
merchant districts, the trial court found that it would be
- 3 - impossible for Evans' family to secure additional clothing within
the requested thirty minutes. Defense counsel did not dispute
the trial court's conclusion, asserting only that "[T]here is
. . . the possibility, the likelihood that since there are a
number of stores close by that the family could get her something
within a half hour . . . ."
Moreover, after having indicated her desire to wear jail
attire, Evans failed to request a recess to purchase civilian
clothing until the commencement of her trial. Her failure to
move timely for the opportunity to acquire other clothing
militates strongly in favor of the trial court's decision. Thus,
under the circumstances, we cannot say that the trial court
abused its discretion. 1
On appeal, Evans argues also that the trial court's denial
of the requested recess amounted to violations of due process,
equal protection and the presumption of innocence. We will not
consider these arguments on appeal, because they were not made to
the trial court. Jacques v. Commonwealth, 12 Va. App. 591, 593,
405 S.E.2d 630, 631 (1991) (citing Rule 5A:18).
II.
Evans next contends that the trial court erred in refusing
to admit into evidence the 1990, 1991 and 1992 federal income tax
1 Because we find that the trial court did not abuse its discretion, we do not address whether Evans showed prejudice. Lowery v. Commonwealth, 9 Va. App. 304, 306-07, 387 S.E.2d 508, 509 (1990).
- 4 - returns of Ms. Hart, the prosecution's chief witness. During
cross-examination of Ms. Hart, defense counsel introduced, for
purposes of identification, copies of Ms. Hart's 1990, 1991 and
1992 income tax returns. These were marked for identification as
Defendant's Exhibit Nos. 3, 4 and 5. The following dialogue
occurred at the time that the exhibits were marked for purposes
of identification: [Defense Counsel]: Before I forget, let me just ask you if you can identify these tax returns . . . * * * * * * *
[Defense Counsel]: May we have [Hart's 1990 income tax return] marked as Exhibit 3? I've got a copy. We could use the original, but if we don't have any objection to the copy?
[Commonwealth]: I may have an objection to this, Your Honor, as to why it's relevant.
[Defense Counsel]: I'll show that it's relevant later.
The Court: Well, all he's asked at this point is to have it marked; isn't that right?
[Defense Counsel]: That's correct.
After the exhibits were properly marked, defense counsel did
not further cross-examine Ms. Hart concerning her tax returns or
the information contained therein.
After the Commonwealth completed its case-in-chief, defense
counsel sought the admission of the tax returns into evidence to
show a possible bias or motive for Ms. Hart to testify falsely.
- 5 - Counsel argued that Ms. Hart might fear prosecution for
underreporting her income and that the lack of itemized business
deductions on her tax returns relating to payments made on the
estates contradicted her testimony that she made payments to
Evans. After hearing the representations of counsel, the trial
court denied the motion. It ruled that the tax returns were not
admissible under the circumstances and noted additionally that a
prior discovery order requesting Ms. Hart's tax records had been
denied. A party offering evidence must show its relevance and must
lay a foundation for its introduction into evidence. Lucas v.
HCMF Corp., 238 Va. 446, 451, 384 S.E.2d 92, 95 (1989). Despite
defense counsel's identification of the returns and independent
assertions as to the relevance of the tax returns, the record is
devoid of any attempt to lay a foundation for the introduction of
the tax returns into evidence. While reliance solely upon the
earlier discovery order would not support the trial court's
decision to deny the admission of the tax records, the record at
the time of the ruling supports the decision to reject the
records into evidence.
On appeal, Evans contends also that the trial court's
refusal to admit Ms. Hart's tax records violated her right to
confront and cross-examine her accuser in derogation of the Sixth
Amendment to the United States Constitution and Article I, § 8 of
the Virginia Constitution. Evans did not raise these issues at
- 6 - trial. She is barred from asserting them for the first time on
appeal. Rule 5A:18.
III.
Evans asserts that the trial court erred in allowing the
Commonwealth to introduce evidence showing that Evans sent three
children to a private school between 1989 and 1992, that the
tuition bills for the three year period exceeded $19,000, and
that almost all of the tuition payments were made in cash. Evans
asserts that this evidence was both immaterial and irrelevant. "'[E]very fact, however remote or insignificant, that tends
to establish a probability or improbability of a fact in issue is
admissible.' Of course, the weight to be given such
circumstantial evidence is an issue for the jury." Cheng v.
Commonwealth, 240 Va. 26, 39, 393 S.E.2d 599, 606 (1990)
(citation omitted).
"A trial judge's ruling on the admissibility of evidence
'will not be disturbed on appeal in the absence of an abuse of
discretion.'" Hunter v. Commonwealth, 15 Va. App. 717, 724, 427
S.E.2d 197, 202 (1993) (citation omitted).
The school tuition payment records were relevant
circumstantial evidence showing a pattern of large cash payments
being made at the same time that Ms. Hart was transferring large
amounts of cash to Evans, and impeaching Evans' credibility by
contradicting her statements to Investigator Athing that she
needed money to purchase food. The weight of this evidence was
- 7 - for the jury to determine. Accordingly, the trial court did not
abuse its discretion in admitting the tuition records.
The judgments of the trial court are affirmed.
Affirmed.
- 8 -