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. 
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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 
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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 
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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 

 

 1Because 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). 
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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. 
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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 
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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 
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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.