COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, AtLee and Senior Judge Bumgardner Argued at Norfolk, Virginia

TONY LAMONT PUGH MEMORANDUM OPINION * BY v. Record No. 1299-16-1 JUDGE RICHARD Y. ATLEE, JR. MAY 23, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT O F THE CITY OF SUFFOLK Dean W. Sword, Jr., Judge Designate Sean Domer, Assistant Public Defender, for appellant. Aaron J. Campbell, Assistant Attorney General (Mark R. Herrin g, Attorney General, on br ief), for appellee.
A jury in the Circuit Court of t he City of Suffolk (“trial cour t”) convicted appellant Tony Lamont Pugh of obtaining money or property by false pretenses, forging counterfeit bills, uttering counterfeit bills, and i dentity theft. The jury recom mended, and the trial court imposed, two years in prison for each convi ction, yielding a total activ e sentence of eight years. On appeal, Pugh argues: (1) there was insufficient evidence of hi s intent to defraud, an element of each crime for which he was convi cted, and (2) the trial court erred in admitting a copy of the forged check over his best evi dence objection. For the followi ng reasons, we disagree and affirm.
I. F ACTS “When examining a challenge to t he sufficiency of the evidence , an appellate court must review the evidence in the lig ht most favorable to the prevaili ng party at trial and consider any

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - reasonable inferences from the facts proved.” Thomas v. Common wealth, 279 Va. 131, 155-56, 688 S.E.2d 220, 234 (2010). “The judgmentof the trial court i s presumed to be correct and will be reversed only upon a showing tha t it is ‘plainly wrong or wi thout evidence to s upport it.’” Id. at 156, 688 S.E.2d at 234 (quoting Viney v. Commonwealth, 269 V a. 296, 299, 609 S.E.2d 26, 28 (2005)). So viewed, the evidence show s that on October 8, 2013, Pugh ent ered a Walmart store to cash a check for $1,376.12. The chec k listed “BBISSETTE’S CONC RETE CO.” as the payor and Pugh as the payee. A Walmart employee wrote Pugh’s license identification number in the endorsement area on the back, t hen scanned and cashed the check

. At trial, an employee of a Chesa peake-based business named Biss ette Construction testified that no business named “ Bbissette’s Concrete Co.” exi sts and that the routing information on the check Pugh cashed was not affiliated with he r company. Instead, the check drew from a PNC bank account aff iliated with a chain of salons, “Hair Salon LP.” The day Pugh cashed the check, the owner of Hai r Salon LP saw that a check s he had not issued had drawn from her account. She had not hear d of Pugh or Bissette Constr uction. She reported the fraudulent transaction and c ontacted the police. Using video s urveillance from Walmart, police identified Pugh as the person w ho cashed the fraudulent check. Pugh was arrested when officers discovered multiple warrants for his arrest during a traffic st op approximately one month later. Pugh testified that he cashed t he check in question, but mainta ined that he received the check as payment for the sale of a vehicle. He stated he had p osted a Craigslist advertisement and met with a prospective buyer in the Walmart parking lot. T he buyer arrived with the check made out to Pugh. Although they had agr eed to a sale price of $1,400, Pugh stated he accepted the check for a lesser amount as he was eager to sell the vehic le. He did not provide the buyer’s name at trial, but described hi m as a “clean shaven, black guy, little taller than me. Casually- 3 - dressed.” Pugh claimed that the buyer told him the check was f rom his employer, who was loaning him the money to purchase the vehicle. At the buyer’s suggestion, he and Pugh entered the Walmart so Pugh could cash the check at the store’s “money center.” After the check cleared, Pugh said he signed the title over to the buyer. DMV records associated with the automobile showed that on Octob er 10, 2013, Pugh transferred title to someone named Iris Nicole Carver, and list ed a sale price for $1,300. Pugh admitted at trial that he had been previously convicted of a do zen felonies, including stealing car stereos, possessing burglary tools , and twice signing his broth er’s name on a traffic ticket. The trial court took a recess before closing arguments, after which Pugh did not return, so he was not present for the remainder of the proceedings.
II. ANALYSIS A. Evidence of Intent Pugh does not contest that he presen ted a forged check; rather, he argues there was inadequate evidence that he kne w it was forged, and thus the Co mmonwealth failed to prove intent to defraud, an element of each of his convictions. “Possession of a forged chec k by an accused, which he claims as a payee, is prima facie evidence that he either forged t he instrument or procured it to be forged.” Walker v. Commonwealth, 25 Va. App. 50, 58-59, 486 S.E.2d 126, 131 (1997) (emphasis omitted) (quoting Fitzgerald v. Commonwealth, 227 Va. 171, 174, 313 S.E. 2d 394, 395 (1984)). “Such a prima facie showing of guilt does n ot rise to the level of a co nclusive presumption, and it may be rebutted, but it will warrant submission of the issue of guilt of forgery to the jury, and will support a verdict of guilty if th e jury so finds.” Fitzgerald, 227 Va. at 174, 313 S.E.2d at 395. It is undisputed that Pugh excha nged the forged check for cash. The only evidence Pugh presented to rebut the presumpti on that he forged the check, or procured its forgery, was his own- 4 - account of the sale. However, the re were numerous reasons the jury could, in its role of judging witness credibility, “disbelieve the self-serving testimony of the accused and . . . conclude that the accused is lying to conceal his guilt.” Marable v. Commonw ealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). Under Pugh’s theory of innocence, the buyer was the criminal ac tor, responsible for Pugh facing four felony charges. Acco rding to Pugh’s own testimony, he possessed, but did not provide, information about the buyer that would have supported his narrative. For example, he did not disclose the alleged buyer’s name, although he testifie d numerous times that the buyer gave it to him. He did not provi de any contact information for the buyer, despite testifying that he had screen shots of text messa ge exchanges containing the bu yer’s cell phone number. When asked if he attempted to contact the buyer afte r learning of th e charges against him, Pugh equivocated: “It’s a -- no. I mean well, later on,” but did n ot disclose whether he was successful despite numerous opportunities to do so. In light of this, a j ury reasonably could have questioned Pugh’s failure to provide more information about the buyer and concluded that he did not do so because he was being untruthful. Pugh also failed to present other evidence to corroborate his v ersion of events and rebut the presumption that he knew th e check was forged. He offered no proof that the Craigslist post advertising the sale of the vehicle existed. 1 He provided no evidence to s upport his claim that he met with the buyer in the parking lot, or that they entered the Walmart together, such as surveillance footage from whe n the sale allegedly took place. He did not explain the discrepancy between his descripti on of the buyer as mal e and the new title holder being female according to

1 Craigslist posts are managed either through a Craigslist accou nt, or via a link emailed to the poster, and thus would generally be available to the indivi dual who created it even after it was no longer viewable publicly. M oreover, Pugh testified that he regularly bought and sold cars and had “a long Craigslist a ccount,” suggesting that this failure is not due to his lack of familiarity with the website.- 5 - the DMV records. In short, the j ury was entitled to disbelieve Pugh, who had a dozen prior felony convictions, including for forgery, and to conclude that his hypothesis of innocence was not reasonable. Because Pugh failed to rebut the presumption t hat he knew the check was forged when he cashed it, we cannot sa y that the jury’s rejection of P ugh’s testimony and decision to convict were plainly wrong.
B. Best Evidence Pugh also argues that the trial court should have sustained his best evidence objection to a copy of the forged check obtained f rom Hair Salon LP’s online b ank account. The best evidence rule requires that “where the contents of a writing are desired to be proved, the writing itself must be produced or its absence sufficiently accounted for befo re other evidence of its contents can be admitted.” Brown v. Commonwealth, 54 Va. App. 107, 115, 676 S.E.2d 326, 330 (2009) (emphasis omitted) (quoting Bradshaw v. Commonwealth, 16 Va. Ap p. 374, 379, 429 S.E.2d 881, 885 (1993)). “A trial court’s decision to sustain or ove rrule a best evidence objection, like other decisions about the admissi bility of evidence, is reviewe d for abuse of discretion.” Jennings v. Commonwealth, 65 Va. App. 669, 673, 779 S.E.2d 864, 866 (2015). Pugh’s argument on appeal relies on Virginia Rule of Evidence 2 :1003, which addresses admissibility of “substitute check s” over best evidence objecti ons. The Rule was created in response to the “Check Clearing f or the 21st Century Act,” a fe deral law that enables banks to process checks electronically through the creation of “substitu te checks,” rather than physically moving original check s between banks. See Michael J. Weber & D ennis E. McDonnell, Check Please? The “Check 21” Act and Its Impact On Check Fraud Claims , 40 Tort & Ins. L.J. 941 (Spring 2005). The Rule states: (a) Admissibility generally. A substitute check created pursuant to the federal Chec k Clearing for the 21st Century . .

.- 6 - Act, 12 U.S.C. § 5001 et seq., shall be admissible in evidence in any Virginia legal proceeding, civ il or criminal, to the same e xtent the original check would be. (b) Presumption from designation and legend. A document received from a banking institu tion that is designated as a “substitute check” and that bear s the legend “This is a legal c opy of your check. You can use it th e same way you would use the original check” shall be presumed to be a substitute check crea ted pursuant to the Act applicable under subdivision (a) of this Ru le. Pugh argues that the copy of the check admitted here should hav e been excluded because it does not contain the exact l anguage set forth in quotation m arks in Rule 2:1003(b). Instead, the check image here contains th e following language: “This is an image of a check, substitute check or deposit ticket. Refer to your posted transactions to verify the status of the item. For more information about image delivery . . . ,” followed by cont act information for the bank. Pugh’s argument fails for numer ous reasons. First, Rule 2:1003 does not set out requirements for admissibility of any copy of a check under the best e vidence rule; rather, it establishes that “substitute ch ecks,” a technical term, are adm issible as originals, and sets forth conditions that create a presum ption of admissibility under the best evidence rule. Nothing in the record indicates that the check i mage here was a “substitute ch eck,” or that its admissibility is governed by Rule 2:1003. (In fact, the check image’s express l anguage indicates that it is “an image of a check, substitute check or deposit ticket” (emphasis added), belying any inference that it was necessarily a “substi tute check” because it was an electronically-generated check image.) In addition, even if the exhibit is a “substitute chec k,” the omission of the exact language from Rule 2:1003(b) should not require its exclusion — it simply would not receive the presumption of admissibility a s an original. Furthermore, “[t]his Court has no ted that proper circumstances exist to treat a photocopy as a duplicate original when the accuracy of the photocopy is n ot disputed.” Allocca v. Allocca, 23 Va. App. 571, 580, 478 S.E.2d 702, 706 (1996). On direct, P ugh admitted to cashing a check- 7 - with the same amount, payor, and pa yee as the check image depic ted. When asked “Did you cash that check, the check we’re all asking about?” he replied “Yes, sir.” Accordingly, “[w]hile this Court has long required proof of a case through the most r eliable evidence available, . . . [Pugh] has not challenged the cont ent of the [check] as represe nted in the photocopy.” Myrick v. Commonwealth, 13 Va. App. 333, 339, 412 S.E.2d 176, 179 (1991) (quoting Carmody v. F.W. Woolworth Co., 234 Va. 198, 200, 361 S.E.2d 128, 129 (1987)). The trial court did not abuse its discretion in ruling th at the check image was admissible over P ugh’s best evidence objection.
III. C ONCLUSION Finding no error, we affirm Pugh’s convictions. Affirmed.