COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Elder and 

 Senior Judge Hodges 

Argued at Salem, Virginia 

CHARLES DOUGLAS RINER 

 OPINION BY 

v. Record No. 2260-01-3 JUDGE LARRY G. ELDER 

 MAY 6, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF WISE COUNTY 

J. Robert Stump, Judge 

 Roger D. Groot (Thomas R. Scott, Jr.; School 

of Law, Washington & Lee University; Street 

Law Firm, on briefs), for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General; 

Paul C. Galanides, Assistant Attorney 

General, on brief), for appellee. 

 Charles Douglas Riner (appellant) appeals from his jury 

trial convictions for first degree murder, arson, and petit 

larceny. On appeal, he contends the trial court erroneously (1) 

denied a motion to change venue; (2) denied his motion for 

mistrial based on juror misconduct that resulted in dismissal of 

that juror; (3) allowed a private prosecutor with claimed 

conflicts of interest to participate in the trial; and (4) 

admitted the business records of a pawn shop as an exception to 

the hearsay rule without proof that the entrant was unavailable. 

To the extent these issues were preserved in the trial court and 
properly presented on appeal, we hold the trial court's rulings 

were not error. Thus, we affirm. 

I. 

BACKGROUND 

 Appellant was charged with the instant offenses following 

the death of his wife (the victim) on August 12, 1998, in a fire 

in the house they shared with their three children. Appellant 

and the children escaped the fire without serious injury. 

 After the fire, members of the victim's family attempted to 

remove appellant as the administrator of the victim's estate and 

to obtain visitation with or custody of the children. When 

appellant failed to appear for estate proceedings on August 11, 

1999, the court removed him as administrator of the estate and 

issued a capias for his appearance. 

 In November 1999, while the capias was still outstanding, 

appellant falsely told school officials he was taking the 

children to Pennsylvania to attend a funeral but eventually went 

with the children to Panama. While appellant was in Panama, a 

Wise County grand jury indicted him for arson and murder. He 

was arrested in Panama and returned to Virginia. The original 

indictment for arson and murder was later superseded by an 

indictment for arson, robbery and capital murder. 

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II. 

MOTION FOR CHANGE OF VENUE 

 Prior to trial, appellant moved for a change in venue, 

alleging that "exhaustive media coverage" within the previous 

year, including extensive "misinformation" about appellant and 

the case, left him "unable to receive a fair and impartial 

trial" in that jurisdiction. That information included but was 

not limited to the fact that appellant left the country with his 

children and traveled to Panama, which the media implied was 

flight to avoid prosecution. The trial court denied the motion. 

 After appellant was tried and convicted, he noted an appeal 

and timely filed a petition for appeal which did not include a 

challenge to the trial court's denial of his venue motion. 

Before this Court had acted on appellant's original petition, he 

filed a motion to enlarge the petition to include such a 

challenge. This Court granted appellant's motion to enlarge his 

petition and ultimately granted appellant's petition for appeal 

as to that assignment of error as well as the others addressed 

in this opinion. 

A. 

JURISDICTION AND PRESERVATION FOR APPEAL 

1. Petition for Appeal

 "[A] petition for appeal must be filed . . . not more than 

40 days after the filing of the record with the Court of 

Appeals. An extension of 30 days may be granted on motion in 

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the discretion of the Court of Appeals in order to attain the 

ends of justice." Rule 5A:12(a). Rule 5A:3 provides that 

"[t]he times prescribed for filing the notice of appeal (Rule 

5A:6 and 5A:11) [and] a petition for appeal (Rule 5A:12) . . . 

are mandatory." We have expressly held that the "forty-day time 

limit in Rule 5A:12(a) for filing a petition for appeal is a 

jurisdictional requirement" and that a petition not filed within 

this time must be dismissed unless a motion for an extension of 

time is "filed[] and granted[] before the original deadline has 

passed." Long v. Commonwealth, 7 Va. App. 503, 505-06, 375 

S.E.2d 368, 369 (1988) (en banc); see Haywood v. Commonwealth, 

15 Va. App. 297, 298, 423 S.E.2d 202, 203 (1992) (en banc). 

Thus, in order for this Court to acquire jurisdiction over a 

criminal appeal, the petitioner must file a timely petition. 

 Here, appellant timely filed a petition containing three of 

the four assignments of error presently before us on appeal. 

Thus, this Court acquired jurisdiction to consider those three 

assignments of error, and the Commonwealth received notice that 

appellant intended to challenge his conviction. 

 The Commonwealth nevertheless contends this Court had no 

authority to allow appellant to enlarge his petition for appeal 

and, thus, that we lack jurisdiction to consider appellant's 

challenge to the denial of the motion for a change of venue. 

The Commonwealth relies on both the established principle that 

the timely filing of a petition for appeal is jurisdictional and 

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the provisions of Rule 5A:12(c), which state that "[t]he 

petition for appeal shall contain the questions presented" and 

that "[o]nly questions presented in the petition for appeal will 

be noticed by the Court of Appeals." The Commonwealth cites 

case law providing that, "[w]hen the word 'shall' appears in a 

statute it is generally used in an imperative or mandatory 

sense." Schmidt v. City of Richmond, 206 Va. 211, 218, 142 

S.E.2d 573, 578 (1965). 

 We reject the Commonwealth's argument. Although the timely 

filing of a petition for appeal is jurisdictional, nothing in 

the Rules of Court prevents us from exercising our inherent 

authority to allow the petitioner to present additional issues 

for our consideration when we have already acquired jurisdiction 

and have not yet acted on the original petition. See Yarbrough 

v. Commonwealth, 258 Va. 347, 361, 519 S.E.2d 602, 608 (1999) 

(recognizing "inherent authority [of court] to administer cases 

on its docket"); cf. Shooltz v. Shooltz, 27 Va. App. 264, 271, 

498 S.E.2d 437, 440 (1998) (recognizing inherent authority of 

court, in divorce case, to reopen record to take additional 

evidence). 

The mere fact that the rules state "[t]he petition for 

appeal shall contain the questions presented" does not compel 

the conclusion the Commonwealth advances. Rule 5A:12(c) 

(emphasis added). In Johnson v. Commonwealth, 1 Va. App. 510, 

511-13, 339 S.E.2d 919, 920-21 (1986), for example, we 

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interpreted the effect of the word "shall" as used in reference 

to a rule requiring mailing or delivery of a notice of appeal to 

the clerk of this Court. Johnson involved the interplay between 

Rules 5A:3 and 5A:6. Rule 5A:3, quoted more fully above, 

provides that the time for filing the notice of appeal is 

"mandatory," which we have interpreted in that context to mean 

"jurisdictional." Johnson, 1 Va. App. at 512, 339 S.E.2d at 

920. Rule 5A:6 provides that "No appeal shall be allowed 

unless, within 30 days after entry of final judgment . . . 

counsel files with the clerk of the trial court a notice of 

appeal, and at the same time mails or delivers a copy of such 

notice to . . . the clerk of the Court of Appeals." Rule 

5A:6(a) (emphasis added). 

We held in Johnson, despite use of the word "shall" in Rule 

5A:6(a), that the only activity in that rule necessary to give 

this Court jurisdiction over the appeal was the filing of the 

notice of appeal with the clerk of the trial court and not the 

mailing or delivering of the notice to the clerk of this Court. 

Johnson, 1 Va. App. at 512-13, 339 S.E.2d at 920. In so 

holding, we cautioned that 

we do not minimize the necessity of 

adherence to the mandate of the Rule by 

members of the bar. We consider the 

requirement in the Rule to be significant 

and one that should not be ignored. 

Litigants and their attorneys must read and 

comply with the plain language contained 

therein. Sanctions may be imposed unless an 

extension of time for complying with the 

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Rule is granted for good cause shown in 

accordance with Rule 5A:3(b). 

 

Id. at 513, 339 S.E.2d at 921. 

The filing of a timely petition for appeal under Rule 

5A:3(a), like the filing of a timely notice of appeal under that 

same rule, is jurisdictional. Nevertheless, the provisions of 

Rule 5A:12(c) stating what the petition "shall contain," like 

the provisions of Rule 5A:6(a) stating that "[n]o appeal shall 

be allowed" unless a copy of the notice of appeal is mailed or 

delivered to the clerk of the Court of Appeals, are not 

jurisdictional. They do not prevent us from exercising 

jurisdiction over assignments of error added to the petition, 

with leave of court, at a later date. In appellant's case, like 

in Johnson, "we do not minimize the necessity of adherence to 

the . . . Rule[s] by members of the bar." 1 Va. App. at 513, 

339 S.E.2d at 921. A petitioner who fails to include one or 

more issues in his petition for appeal and subsequently asks the 

Court for leave to enlarge the petition acts at his peril 

because the Court is not compelled to grant such leave.1 

Nevertheless, the text of the Rule does not prevent this Court, 

 

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1

 We note appellant's contention that the ruling in Thomas 

v. Commonwealth, 263 Va. 216, 559 S.E.2d 652 (2002), changed the 

law applicable to his motion to change venue and that an appeal 

of the venue issue was not appropriate prior to the issuance of 

Thomas. Nevertheless, this claimed change in the law would not 

have prevented appellant from assigning error to the denial of 

his motion based on the same reasoning applied in Thomas. Cf.

Commonwealth v. Jerman, 263 Va. 88, 92-94, 556 S.E.2d 754, 

756-58 (2002). We mention this possibility only to make clear 
in its discretion and pursuant to its inherent authority, see

Yarbrough, 258 Va. at 361, 519 S.E.2d at 608, from considering 

such additional issues as long as the Court has acquired 

jurisdiction over the appeal via timely filing of the original 

petition for appeal. 

2. Preservation in the Trial Court under Rule 5A:18

 Rule 5A:18 provides that "[n]o ruling of the trial court 

. . . will be considered as a basis for reversal unless the 

objection was stated together with the grounds therefor at the 

time of the ruling, except for good cause shown or to enable the 

Court of Appeals to attain the ends of justice." The purpose of 

the rule is to avoid unnecessary appeals, reversals, and 

mistrials by requiring litigants to inform the trial judge of 

the action complained of so that the judge has the opportunity 

to consider the issue intelligently and take timely corrective 

action. Robinson v. Commonwealth, 13 Va. App. 574, 576, 413 

S.E.2d 885, 886 (1992). 

 Appellant contends he sufficiently preserved for appeal his 

present challenge to the denial of his motion for a change of 

venue by filing a pretrial motion to change venue and renewing 

the motion after voir dire was complete. We hold that 

appellant's actions preserved his assignment of error only in 

 

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that we do not consider an actual or alleged change in the law a 

prerequisite to the court's exercise of its discretion to allow 

a petitioner to add assignments of error to a timely filed 

petition. 
part. Appellant's challenge to the trial court's denial of his 

venue motion is three-fold. He contends first that the evidence 

and the trial court's comments from the bench prevented a 

finding that the jury was impartial. He argues next that, even 

if the jury was impartial, the court applied an improper 

standard in denying his motion because it considered only the 

fact that a jury was selected rather than "the ease with which 

the jury had been selected," as required under Thomas v. 

Commonwealth, 263 Va. 216, 559 S.E.2d 652 (2002). Finally, he 

contends that under the Thomas standard, denial of the motion 

was error because the jury selection was "fraught with 

difficulty." 

 In the trial court, however, appellant did not contend the 

court applied an improper standard in denying the motion. 

Appellant contends that his moving for a change of venue was 

sufficient to preserve the issue of the proper standard for 

review of such a motion for appeal. Appellant contends that, 

like in Thomas, "[he] filed a pretrial motion seeking to change 

venue" and, "[f]ollowing voir dire, [he] again moved for a 

change of venue." Thomas, 263 Va. at 229-30, 559 S.E.2d at 659. 

Thus, argues appellant, this Court should consider whether the 

trial court applied the proper standard in ruling on his motion 

just as the Supreme Court did in Thomas. 

We disagree. Although appellant accurately repeats the 

procedural history set out in Thomas, the Supreme Court in 

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Thomas did not address a procedural bar issue. Id. at 229-33, 

559 S.E.2d at 659-61. Thus, the opinion in Thomas does not 

stand for the proposition that the facts recited therein 

established proper preservation of the key issue for appeal. 

Further, as the Supreme Court has held clearly in another 

context, the fact that the law in effect at the time of a trial 

sets out a particular method for proceeding does not prevent a 

defendant from arguing that method should be different2 and does 

not excuse him from registering an objection in order to comply 

with Rule 5A:18. See, e.g., Commonwealth v. Jerman, 263 Va. 88, 

92-94, 556 S.E.2d 754, 756-58 (2002) (holding fact that law at 

time of trial did not entitle defendant to instruction on 

abolition of parole in penalty phase of trial did not excuse 

defendant's failure to request parole instruction and, thus, 

that Rule 5A:18 barred consideration of issue in appeal that 

occurred after Court adopted rule that would have entitled 

defendant to such an instruction). "The perceived futility of 

an objection does not excuse a defendant's procedural default at 

trial." Id. at 94, 556 S.E.2d at 757. 

Thus, we hold appellant's failure specifically to object to 

the standard he believes the trial court erroneously applied to 

his motion for a change of venue bars this aspect of his appeal. 

 2

 For purposes of analyzing this issue, we merely assume 

without deciding that the holding in Thomas affected a change in 

the law. 

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Appellant's motion for a change of venue preserved only his 

general claim that he was unable to obtain a fair trial due to 

pretrial publicity and, thus, that the trial court abused its 

discretion in denying the motion. 

3. Waiving Objection by Presenting Evidence of Same Character

 The Commonwealth contends appellant waived his right to 

object to any bias resulting from pretrial publicity about his 

trip to Panama with his children when he introduced evidence at 

trial regarding media coverage of that trip. We disagree. 

 The principle cited by the Commonwealth provides "that 

'where an accused unsuccessfully objects to evidence which he 

considers improper and then on his own behalf introduces 

evidence of the same character, he thereby waives his objection, 

and we cannot reverse for the alleged error.'" Hubbard v. 

Commonwealth, 243 Va. 1, 9, 413 S.E.2d 875, 879 (1992) (quoting 

Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 

(1970)) (emphasis added). We hold this principle does not apply 

in appellant's case because appellant did not object to the 

Commonwealth's admission of evidence at trial. Rather he 

objected to the empanelment of jurors who had learned of his 

trip to Panama through extra-judicial channels during the year 

prior to trial. Further, he objected not merely because 

pretrial media coverage reported that he went to Panama but also 

because that coverage characterized his trip as flight to avoid 

prosecution, an interpretation he denied as inaccurate. When 

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information about his trip to Panama was introduced at trial, it 

was presented to the jurors in the form of evidence, and 

appellant had an immediate opportunity to provide evidence 

rather than media speculation as to the reason for his trip. 

The context in which the evidence was admitted at trial was far 

different than the context in which jurors encountered the 

information in the media. Thus, we hold that appellant's trial 

strategy to introduce evidence that he traveled to Panama did 

not constitute a waiver of his objection on the issue of juror 

impartiality. 

B. 

MERITS OF MOTION TO CHANGE VENUE 

 A ruling on a motion to change venue rests in the sound 

discretion of the trial court and will be upheld on appeal 

absent an abuse of that discretion. See, e.g., Kasi v. 

Commonwealth, 256 Va. 407, 420, 508 S.E.2d 57, 64 (1998). The 

law presumes a defendant will receive a fair trial in the 

jurisdiction in which the crimes occurred. Id. In order to 

overcome the presumption, a defendant must "demonstrat[e] that 

the feeling of prejudice on the part of the citizenry is 

widespread and is such that would 'be reasonably certain to 

prevent a fair trial.'" Mueller v. Commonwealth, 244 Va. 386, 

398, 422 S.E.2d 380, 388 (1992) (quoting Stockton v. 

Commonwealth, 227 Va. 124, 137, 314 S.E.2d 371, 380 (1984)). 

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In considering evidence of community 

prejudice based on pretrial publicity, 

widespread knowledge of the case alone is 

insufficient to overcome the presumption. 

Jurors need not be ignorant of the crime. 

In addition to the volume of publicity, 

factors identified as relevant in 

determining the impact of pretrial publicity 

on the defendant's ability to obtain a fair 

trial are whether the publicity is accurate, 

temperate, and non-inflammatory, and the 

timing of the publicity. Thus, publication 

of matters concerning the crime, the 

accused's prior criminal record, and even a 

confession of the accused, if factually 

accurate and non-inflammatory, is not 

improper and will not alone support a change 

of venue. 

A potential juror who has knowledge of 

the case, even if such person has formed an 

opinion about the case, is entitled to sit 

on the jury if that opinion can be set 

aside. But the difficulties that the trial 

court encounters when finding jurors who, 

despite having advanced knowledge of the 

case and, perhaps, even preformed opinions, 

can impartially judge the case are relevant 

to deciding a motion to change venue. The 

ease with which an impartial jury can be 

selected is a critical element in 

determining whether the prejudice in the 

community stemming from pretrial publicity 

is so wide-spread that the defendant cannot 

get a fair trial in that venue. Roach v. 

Commonwealth, 251 Va. 324, 342, 468 S.E.2d 

98, 109 (1996); Mueller, 244 Va. at 398, 422 

S.E.2d at 388. Thus, generally it will be 

necessary for a trial court to undertake the 

task of attempting to seat the jury. 

Thomas, 263 Va. at 230-31, 559 S.E.2d at 660 (citations 

omitted). 

 Appellant claims the pretrial media coverage was both 

extensive and inaccurate. He also contends the jury was not 

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impartial, as illustrated by both (a) the trial court's finding 

that the jury was aware of and could not ignore reports that he 

"fled" to Panama and (b) the Commonwealth's motion for a change 

of venue. Finally, he contends that even if the jury was 

impartial, denial of the motion to change venue was an abuse of 

discretion under the "ease of selection" standard. 

 We hold first that appellant's claims of media inaccuracy 

on brief did not involve true errors but rather involved (1) the 

omission of facts appellant claimed were important and (2) 

different ways of interpreting undisputed facts. The only 

claimed error appellant discussed in the portion of his brief 

challenging the denial of the venue motion was the media's 

characterization of his trip to Panama, based in part on quotes 

from Wise County officials, as appellant's "fleeing" the 

jurisdiction and "hiding out" in Panama. Appellant argued the 

fact that he obtained round-trip airline tickets for himself and 

his children in their true names and that they lived openly in a 

hotel they had visited previously on a church trip belied the 

characterization of the media and the quoted Wise County 

officials that he fled the country to avoid prosecution. He 

contended his passing of a polygraph examination was not 

reported by the newspapers and that he left Wise County after 

passing the polygraph to avoid friction over a visitation 

dispute with the victim's family. However, other evidence 

established that when appellant left the country, he falsely 

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told his employer and officials at his children's schools that 

he was taking the family to a funeral in Pennsylvania and that, 

when he spoke to his parents about three weeks later, he did not 

reveal his location to them. Further, at the time he left Wise 

County, a capias for his arrest remained outstanding as a result 

of his failure to appear over two months earlier for a hearing 

related to the settlement of his wife's estate. Thus, whether 

appellant was "hiding out" in Panama and "fled" to avoid 

prosecution were facts in dispute. The media's characterization 

of appellant's travel as "flight" did not constitute false or 

inaccurate reporting. 

Appellant contends on brief the trial court "stat[ed] its 

own belief that the jury knew about Panama and could not ignore 

it." Appellant misinterprets the trial court's statements. 

Appellant's reference to the statement implies the court found 

the jurors could not ignore the fact that appellant went to 

Panama. What the trial court actually said, however, was that 

at least some of the jurors probably knew appellant went to 

Panama and that the trial court itself could not ignore the fact 

that some of the jurors probably knew of the trip. The trial 

court never found that the jurors both were aware of and could 

not ignore the fact of appellant's trip to Panama. Further, all 

jurors on the venire panel who said they had heard or read 

something about appellant or the crime prior to trial also said 

they could ignore what they had heard and decide the case based 

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on the evidence presented at trial. The trial court's denial of 

the motion for a change of venue supports a conclusion that it 

believed those jurors who knew about the trip to Panama could 

nevertheless decide the case based on the evidence admitted at 

trial. 

Appellant's argument that the Commonwealth believed a 

change of venue was necessary based on juror partiality also is 

belied by the record. The Commonwealth joined in appellant's 

motion for a change of venue only after the venire panel had 

been selected and the trial court intimated it would allow 

appellant to offer evidence that he passed a polygraph 

examination before going to Panama in order to combat 

appellant's fear of jury bias based on media coverage of his 

trip. The Commonwealth expressed concern that the trial court's 

ruling on the admissibility of the polygraph evidence would 

amount to a ruling that the jury was not impartial. The 

Commonwealth never indicated that it held such a belief, and, 

for the reasons discussed above, the trial court's ruling on the 

admissibility of the evidence did not constitute a finding that 

the jury was not impartial. 

Lastly, we hold that an analysis of the level of ease with 

which the jury was selected does not compel a finding that the 

court's denial of the venue motion was an abuse of discretion. 

Jury selection, including on-the-record review of the jury 

questionnaires by court and counsel, began at 4:00 p.m. on 

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October 2, 2000, and selection of the venire was completed by 

mid-afternoon on October 5, 2000, with opening statements 

beginning on October 6, 2000. Thus, selection of the venire 

took no more than three days. 

The selection process began with the court's and the 

parties' examination of questionnaires from 87 potential jurors. 

Out of the original pool of 87, the trial court dismissed 13 for 

reasons related at least in part to bias and 8 for unrelated 

reasons. Of the remaining pool of 66, the court conducted 

detailed questioning of 42, dismissing 5 for bias and 12 for 

unrelated or unarticulated reasons. Thus, out of 87 potential 

venire people, the court released 18 due at least in part to 

bias and 20 for unrelated reasons before selecting a venire of 

25. At that time, a pool of 24 potential jurors remained who 

had survived review of their questionnaires but, due to lack of 

need, had not undergone individual voir dire. See, e.g., Kasi, 

256 Va. at 420-21, 508 S.E.2d at 64-65 (where "virtually all the 

prospective jurors indicated they had heard or read about the 

case" but the court "seated a panel of 24 jurors, following 

detailed questioning of only 58 persons," jury was selected with 

"relative ease" and "[d]efendant did not overcome the 

presumption that he could receive a fair trial"); Coleman v. 

Commonwealth, 226 Va. 31, 45, 307 S.E.2d 864, 871 (1983) 

(upholding denial of motion for change of venue where court 

struck 15 out of 42 jurors based on their having formed an 

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opinion or failing to understand the presumption of innocence); 

Brown v. Commonwealth, 28 Va. App. 315, 339-40, 405 S.E.2d 399, 

409-10 (1998) (upholding denial of motion for change of venue 

where 22 out of 60 jurors were discharged because they had 

formed an opinion based on pretrial publicity and 14 were 

discharged for unrelated reasons). 

The fact that five jurors had to be excused and 

replacements selected on the morning of October 5, 2000, after 

the trial court and the parties believed they had completed 

selection of a venire panel of 25 members, does not require a 

different result. Of those additional 5 released, the evidence 

established only that one of the replacements was necessitated 

by concerns over partiality. Further, although the court 

previously had released the remaining jurors and had to recall 

them, it still had a group of 30 from which to choose (reduced 

to 24 after the court questioned 6 more, released 1, and added 

the remaining 5 to the venire). The entire process was 

accomplished in 3 days and did not involve "unusual or 

unexpected difficulty in impaneling a jury free from bias." 

Coleman, 226 Va. at 45-46, 307 S.E.2d at 872. 

Although approximately 80% of the 42 jurors who underwent 

individual voir dire said they had heard or read something about 

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the case prior to trial,3 all of those jurors who remained on the 

panel said they would be able to ignore what they had heard and 

to decide the case based on the evidence presented at trial. 

Under these circumstances, we hold the trial court did not abuse 

its discretion in denying the motion for a change of venue. 

III. 

JUROR MISCONDUCT AND MISTRIAL MOTION 

A. 

BACKGROUND 

 Fifteen jurors, including three alternates, were selected. 

One of those jurors, whose surname was Gibson, engaged in 

misconduct both inside and outside the jury box. On the eighth 

day of trial, before court had reconvened, Gibson went to the 

Commonwealth's Attorney's office to report an error in one of 

the Commonwealth's exhibits, which said that appellant had found 

his wife's body when other testimony established he was 

receiving medical treatment at the hospital when his wife's body 

was found. The Commonwealth's Attorney immediately reported the 

incident to the court, and appellant moved for a mistrial 

because the juror ignored instructions from the court not to 

conduct an independent investigation. The court denied the 

 3

 The trial court did not permit questioning regarding 

precisely what the prospective jurors had heard about the case. 

Appellant did not specifically assign error to this ruling. 

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mistrial motion and again cautioned the entire jury not to 

engage in such conduct. 

 On the sixteenth day of trial, appellant moved for a 

mistrial based on what he described as Juror Gibson's 

"distractions, inattentiveness, and what I would suggest amounts 

to juror misconduct." Appellant's counsel noted that Gibson 

appeared to be ignoring testifying witnesses and talking to two 

of his fellow jurors during the presentation of the evidence. 

Counsel argued, "I don't know what's going on in the jury room, 

but if . . . he's doing that publicly in the courtroom, my 

common sense tells me that he's engaging in similar conduct [in 

the jury room]." The court and the Commonwealth confirmed they 

had observed some of the behavior about which appellant 

complained. 

 The court then questioned Gibson and the two jurors to whom 

he was seen speaking in the jury box. When the court questioned 

Juror Gibson under oath, he admitted commenting about the 

exhibits to Jurors Russell and Mullins while in the jury box and 

said he often did not watch the testifying witness because he 

was "looking for audience reaction and . . . lawyer reaction" to 

the testimony. 

The trial court released Juror Gibson from service, 

informed the remaining jurors of his release, asked which jurors 

had heard Gibson comment about the case "in the Jury's 

chambers," and questioned individually the additional eight 

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jurors who said they had. Appellant agreed that questioning of 

the remaining jurors was unnecessary. After questioning a total 

of ten jurors with whom Gibson had communicated about the case, 

each of whom indicated that she still had an open mind and could 

render an impartial verdict, the trial court denied appellant's 

mistrial motion. It then instructed the jury to ignore the 

comments Juror Gibson had made, both in the jury box and in the 

jury room during breaks, noting that "[s]ome of his assertions 

were not correct." 

 Trial continued with the remaining jurors, who convicted 

appellant for first degree murder, arson and petit larceny. 

 Appellant filed a motion to set aside the verdict in which 

he again challenged the trial court's denial of the motion for 

mistrial based on juror misconduct. The trial court denied the 

motion to set aside and imposed sentence. 

B. 

ANALYSIS 

 "[T]he mere fact of juror misconduct does not automatically 

entitle either litigant to a mistrial. Instead, the trial 

court, in the exercise of sound discretion, must determine 

whether such misconduct probably resulted in prejudice. And the 

burden of establishing that probability is upon the party moving 

for a mistrial." Robertson v. Metropolitan Washington Airport 

Auth., 249 Va. 72, 76, 452 S.E.2d 845, 847 (1995) (citation 

omitted). "Unless the record shows the contrary, it is to be 

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presumed that the jury followed an explicit cautionary 

instruction promptly given." LeVasseur v. Commonwealth, 225 Va. 

564, 589, 304 S.E.2d 644, 657 (1983) (applying principle in 

context of improper question or conduct of counsel); see Green 

v. Commonwealth, 26 Va. App. 394, 402, 494 S.E.2d 888, 892 

(1998) (applying principle in context of mid-trial challenge to 

juror impartiality). 

 Whether an irregularity has prejudiced a party and whether 

a juror remains fair and impartial are questions of fact to be 

resolved by the trial court and are entitled to deference on 

appeal. See Watkins v. Commonwealth, 229 Va. 469, 480, 331 

S.E.2d 422, 431 (1985); Lewis v. Commonwealth, 211 Va. 80, 

82-83, 175 S.E.3d 236, 238 (1970). "The denial of a motion for 

mistrial will not be overruled unless there exists a manifest 

probability that the denial of a mistrial was prejudicial." 

Harward v. Commonwealth, 5 Va. App. 468, 478, 364 S.E.2d 511, 

516 (1988). 

1. Misconduct Mooted by Gibson's Discharge from the Jury

 Appellant complains on brief about Gibson's attempt to 

communicate with the Commonwealth's Attorney by visiting his 

office and sending him a note in the courtroom during trial. 

However, no evidence established that Gibson was the author of 

the note addressed to the Commonwealth's Attorney. Further, 

even if Gibson was the author, Gibson was discharged from the 

jury, see United States v. Copeland, 51 F.3d 611, 613-14 (6th 

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Cir. 1995) (where juror whose partiality was questioned was 

removed prior to deliberations, holding "the defendant suffered 

no prejudice"), and no evidence even intimated that the 

remaining jurors were aware of Gibson's efforts or were in any 

way prejudiced by them. 

2. Distraction Due to Misconduct Inside the Jury Box

 Appellant contends Gibson annoyed the other jurors and 

generally distracted them from hearing the evidence while in the 

jury box. To the extent appellant preserved this argument for 

appeal, we hold the trial court did not abuse its discretion in 

denying the motion for mistrial on that ground. 

 When appellant moved for a mistrial and included as a basis 

the ground that Gibson was creating a distraction in the jury 

box, he stated that Gibson appeared to be ignoring testifying 

witnesses and talking to two of his fellow jurors during the 

presentation of evidence. He did not specifically contend that 

Gibson's talking to those two jurors prevented them or any of 

the other jurors from hearing or absorbing the evidence being 

offered. The trial court then questioned Jurors Russell and M. 

Mullins, the two jurors to whom Gibson had been speaking. Those 

jurors testified that they did not pay attention to what Gibson 

had said and asked him to be quiet. Both also testified that 

they remained open-minded and impartial about the case. 

Although the trial court gave counsel an opportunity to suggest 

questions that should be posed to the jurors, appellant did not 

- 23 -
ask the court to inquire specifically about whether Gibson's 

talking to them in the jury box prevented them from hearing or 

absorbing any of the evidence being offered. Appellant also did 

not ask the court to question any of the other jurors about 

whether Gibson's conversations in the jury box prevented them 

from hearing or absorbing the evidence.4

 After the court questioned Jurors Russell and M. Mullins 

individually, the following exchange took place: 

[APPELLANT'S COUNSEL]: I think that the 

comments in the jury room are the issue and 

we don't have such a problem with Ms. 

Russell or Ms. Mullins who seem to be pretty 

solid, straight-up open-minded jurors still. 

THE COURT: Yeah. 

[APPELLANT'S COUNSEL]: Although they may 

have been distracted by this, which is kind 

of a problem, but . . . 

THE COURT: Not much, but a possibility. 

[APPELLANT'S COUNSEL]: But I think the 

. . . serious thing is the kind of unknown 

comments he's made in the jury room . . . . 

 

Thus, appellant's argument focused on the activity that occurred 

outside the jury box and inside the jury room. The trial court, 

which itself had been in a position to observe Gibson's activity 

in the jury box, described the distractions as "not much" and 

 

- 24 -

4

 Juror Hylton later volunteered that Gibson's behavior in 

the jury box had been irritating, but she did not indicate it 

had prevented her from hearing or absorbing the evidence. 

Further, after hearing her testimony, appellant did not ask the 

court to inquire further of her or any of the other jurors. 
found merely "a possibility" rather than a probability that 

Gibson's activity in the jury box prevented Jurors Russell and 

M. Mullins from hearing or absorbing the evidence. Appellant 

did not dispute this conclusion until after the jury had 

returned its verdict and been discharged. We hold the evidence, 

or lack thereof, supported the trial court's conclusion and, 

thus, that the trial court's denial of the mistrial motion on 

this ground was not an abuse of discretion. 

3. Specific Incidents of Misconduct

 Appellant also challenges several of Gibson's statements 

based on their content and argues generally that these comments 

show the jury engaged in premature deliberations. 

a. Indirect Third-Party Contact and Newspaper Reports

 Appellant's most significant challenge is to Gibson's 

statement in the jury room that his wife allegedly told him 

about a newspaper article indicating the defense had moved for a 

mistrial because the jurors were taking notes. He asserts this 

constituted an unauthorized communication between a third party 

and a juror, that the content of the communication was likely to 

prejudice jurors against him and that, under these 

circumstances, he was entitled to a presumption of prejudice. 

 We addressed third-party communications in Scott v. 

Commonwealth, 11 Va. App. 516, 518-19, 399 S.E.2d 648, 649 

(1990) (en banc), in which the jury orientation officer made 

improper remarks to potential jury members, at least one of whom 

- 25 -
ultimately served on Scott's jury, that juries in that 

jurisdiction were known for their leniency and were looked down 

upon by neighboring jurisdictions as a result. In awarding 

Scott a new trial, we recognized the following test: 

"In a criminal case, any private 

communication, contact, or tampering, 

directly or indirectly, with a juror during 

a trial about the matter pending before the 

jury is, for obvious reasons, deemed 

presumptively prejudicial, if not made in 

pursuance of known rules of the court and 

the instructions and directions of the court 

made during the trial, with full knowledge 

of the parties. The presumption is not 

conclusive, but the burden rests heavily 

upon the Government to establish, after 

notice to and hearing of the defendant, that 

such contact with the juror was harmless to 

the defendant." 

Id. at 520, 399 S.E.2d at 650 (quoting Remmer v. United States, 

347 U.S. 227, 229, 74 S. Ct. 450, 451, 98 L. Ed. 654 (1954)) 

(emphasis omitted). We held the statements were "harmful" 

rather than "innocuous," thereby shifting the burden to the 

Commonwealth to prove the contact was harmless. Id. at 520-21, 

399 S.E.2d at 650-51. We held "[t]he mere fact that three of 

the twelve jurors said they were not influenced in their 

deliberations [was] insufficient, standing alone and in the 

absence of evidence that they were the only jurors who heard the 

remarks, to establish harmless error." Id. at 521, 399 S.E.2d 

at 651. 

 In appellant's case, we hold the challenged remarks were 

significantly less inflammatory than the remarks at issue in 

- 26 -
Scott. The information Juror Gibson obtained from his wife 

pertained to a newspaper article allegedly indicating that the 

defense had moved for a mistrial because the jurors were taking 

notes. We assume without deciding that these remarks were 

sufficient to shift the burden to the Commonwealth, but we hold 

the evidence supported the trial court's implicit finding that 

the remarks were harmless. 

 First, the evidence specifically established that only ten 

of the jurors heard Gibson say anything about the case and that 

only five of those jurors, K. Mullins, Beason, Harris, Gentry 

and Kobylareyk, heard Gibson reference any newspaper articles. 

Jurors Harris and Kobylareyk said they stopped Gibson before he 

was able to tell them what the article was about. Juror Gentry 

said she did not specifically recall what Gibson said about the 

article. Only Jurors Beason and K. Mullins knew or remembered 

that the article allegedly dealt with a defense motion for a 

mistrial, and only K. Mullins said the motion allegedly stemmed 

from the jurors' taking notes. 

 Second, under careful examination by the court, all ten 

jurors who had heard Gibson say anything about the case 

confirmed that they had not been influenced by Gibson's remarks 

and remained able to render an impartial verdict. The court 

specifically told Juror K. Mullins, the only juror who heard and 

remembered Gibson's claim that the mistrial motion supposedly 

was prompted by the jurors' taking notes, that Gibson's 

- 27 -
statement was untrue. Juror K. Mullins responded, "you could 

tell [Gibson] was kind of a blow bag." 

 Third, after discharging Gibson and consulting with 

counsel, the trial court expressly instructed the entire jury to 

ignore Juror Gibson's comments in the jury box and jury room, 

noting that "[s]ome of his assertions were not correct." 

 Under these circumstances, we hold the evidence supports 

the trial court's implicit finding that any indirect third party 

contact the jurors had with Gibson's wife was harmless. Thus, 

the trial court did not abuse its discretion in denying 

appellant's mistrial motion on this ground. 

b. Gibson's Other Comments

 Appellant also challenges specific statements Gibson made 

to Jurors Russell and Harris about the evidence. Appellant 

complains of a comment Gibson made to Russell about "Dr. Nida's 

report" but does not articulate how that comment prejudiced him. 

He also complains of Gibson's speculating to Harris that the 

victim may have been raped and criticizing the testimony of a 

witness who opined on the flammability of certain materials. 

Again, however, he has not articulated how these statements 

prejudiced him. To the extent these comments show Gibson 

attempted to engage in premature deliberations, all jurors who 

heard Gibson make any comments on the case or the evidence said 

they refused his efforts to engage them in conversation and 

attempted to ignore him. As discussed above, these jurors also 

- 28 -
testified that his statements did not cause them to form an 

opinion regarding the defendant's guilt or innocence and that 

they remained able to render an impartial verdict. 

 Lastly, appellant complains about sexually inappropriate 

comments Juror Beason reported Gibson made to her and other 

members of the jury in the jury room. However, appellant made 

no contemporaneous mention of this behavior as forming part of 

the basis for his mistrial motion and did not ask the court to 

inquire of jurors other than Beason as to how Gibson's behavior 

in the jury room may have impacted their ability to remain fair 

and impartial. Assuming this aspect of the assignment of error 

is preserved for appeal, we see no basis for inferring the 

probability of prejudice necessary to support the declaration of 

a mistrial. 

 Thus, we conclude appellant did not establish a probability 

of prejudice from Gibson's conduct and hold the trial court did 

not abuse its discretion in denying appellant's motion for 

mistrial. 

IV. 

PARTICIPATION OF PRIVATE PROSECUTOR 

 Prior to trial, the Commonwealth's Attorney moved the court 

to allow a private prosecutor, Guy M. Harbert, III, retained by 

the family of the victim, to participate in appellant's 

prosecution. Over appellant's objection, the trial court 

allowed Harbert to participate. 

- 29 -
On appeal, appellant contends the use of private 

prosecutors should be abolished. In the alternative, he 

contends the private prosecutor here had two conflicts of 

interest that should have disqualified him from serving and that 

the level of his participation exceeded that allowed by Cantrell 

v. Commonwealth, 229 Va. 387, 329 S.E.2d 22 (1985). 

 Whether to allow a private prosecutor to participate in a 

particular case "lies within the discretion and continuing 

control of the trial court." Id. at 392, 329 S.E.2d at 26. 

Factual findings related to that decision, like any factual 

findings made by a trial court, are binding on appeal unless 

plainly wrong or without evidence to support them. See Martin 

v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 

(1987). 

 "A conflict of interest on the part of the prosecution in 

itself constitutes a denial of a defendant's due process rights 

under art. I, § 11 of the Constitution of Virginia, and cannot 

be held harmless error." Cantrell, 229 Va. at 394, 329 S.E.2d 

at 26-27. The Supreme Court has recognized that "[a] lawyer who 

represents the victim of a crime, or the victim's family, in a 

civil case arising out of the occurrence which gives rise to a 

criminal prosecution, for which he is hired as a special 

prosecutor, necessarily incurs a conflict of interest. He 

cannot serve two masters." Id. at 393, 329 S.E.2d at 26. 

- 30 -
 We acknowledge appellant's argument that a conflict appears 

to exist based on the fact that a private citizen rather than 

the government pays a private prosecutor's fees. Nevertheless, 

this conflict is one not considered a disabling conflict at 

common law, as indicated by the very practice of allowing 

private prosecutors. Id. at 392, 329 S.E.2d at 25-26. Whatever 

wisdom we might see in discontinuing the practice, id. at 392, 

329 S.E.2d at 25 (recognizing "[t]he policy arguments advanced 

by the defendant for a total prohibition of privately employed 

prosecutors may have a sound basis in considerations of public 

policy"), it still exists at common law, and as the Supreme 

Court recognized in Cantrell, any decision to further limit or 

abrogate the practice must be made by the General Assembly 

rather than the courts, id. Thus, we are left to consider 

whether any cognizable conflicts of interest existed that 

prevented appellant from having a fair trial and whether the 

level of Harbert's participation exceeded the bounds of 

Cantrell. 

 Appellant contends that Harbert had a conflict of interest 

because he owed a duty of confidentiality to the Ringleys, the 

private citizens paying his fee, that conflicted with his duty 

as a prosecutor to turn over exculpatory evidence. For the same 

reasons we are not at liberty to prevent the service of private 

prosecutors, we must conclude that such a conflict exists 

neither at law nor under the specific facts of this case. 

- 31 -
Because the common law permits the employment of private 

prosecutors, the mere fact that a private citizen, most likely a 

member of a victim's family or someone with a similarly strong 

interest in the outcome of a case, pays the private prosecutor's 

fees does not support the conclusion that the private citizen is 

a client of the private prosecutor or that the private 

prosecutor owes any duty of confidentiality to the person who 

pays his fee. The Supreme Court recognized implicitly in 

Cantrell that no attorney-client relationship arises between a 

private prosecutor and the person who pays the fees incurred for 

that purpose. Only if the private prosecutor directly 

represents the person paying his fee in some other capacity does 

such a conflict arise. Id. at 393, 329 S.E.2d at 26 (noting 

private prosecutor represented family of victim in a child 

custody suit against the defendant). 

 Here, the evidence supports the trial court's implicit 

finding that Harbert had no legal relationship with the Ringleys 

that created a duty of confidentiality or other conflict of 

interest. The trial court accepted Harbert's statement that his 

retention letter indicated his "agreement with [the Ringleys] 

. . . to represent the Commonwealth" in return for the Ringleys' 

"paying [Harbert's] fee." (Emphasis added). Harbert stated his 

belief that he did not represent the Ringleys, that "there has 

been nothing the Ringleys have told me that I am holding in 

confidence" and "that everything that constituted [Brady] 

- 32 -
material has been turned over to the defense in this case." 

Harbert, an insurance defense lawyer, testified the relationship 

was much like the one that exists when an insurance company pays 

him to represent an insured involved in an auto accident. The 

trial court found these representations credible, and they 

support the conclusion that Harbert's relationship with the 

Ringleys was not a disqualifying conflict of interest. 

 Harbert's representations also support the trial court's 

implicit conclusion that neither Harbert nor his law firm had a 

contemporary, or even recent, attorney-client relationship with 

CIGNA, parent of LINA, the company liable on the victim's life 

insurance policy. In light of Harbert's representations that he 

had performed a conflict-of-interest check and that his firm had 

last represented CIGNA ten years previously, the court was 

entitled to credit his representations over a Martindale-Hubbell 

entry that listed CIGNA as one of the firm's representative 

clients. 

 The evidence also supports the trial court's conclusion 

that Harbert's participation did not exceed the bounds of 

Cantrell. Although the Supreme Court disposed of Cantrell on 

the conflict of interest issue, it described the role of the 

private prosecutor in assisting the prosecution: 

His role is more limited than that of the 

public prosecutor. By the weight of 

authority, he may not initiate a prosecution 

or appear before the grand jury; he may 

appear only by leave of the trial court; 

- 33 -
he may participate only with the express 

consent of the public prosecutor; he may 

make a closing jury argument only in the 

court's discretion; and he may take no part 

in a decision to engage in plea bargaining, 

deciding the terms of a plea bargain, or a 

decision to accept a plea of guilty to a 

lesser crime or to enter a nolle prosequi. 

Id. at 393, 329 S.E.2d at 26 (citations omitted). However, 

despite these limitations, as long as "the public prosecutor 

. . . remain[s] in continuous control of the case," "there is no 

arbitrary limitation as to the proportion of work which may be 

done by a private prosecutor." Id. (emphasis added). 

 Here, appellant makes no claim that the private prosecutor 

engaged in prohibited activities such as initiating the 

prosecution or plea bargaining. Rather, he contends that 

Harbert's "participation dominate[d] the case" and that he 

impermissibly controlled the arson prosecution, the means by 

which the Commonwealth proved the murder charge, as well. 

The Commonwealth represents Harbert conducted direct 

examination of just over 20% of the Commonwealth's witnesses in 

its case-in-chief and cross-examined 20% of appellant's 

witnesses during appellant's case-in-chief and surrebuttal. In 

the Commonwealth's rebuttal, Harbert did not examine any of the 

Commonwealth's five witnesses. Appellant does not expressly 

challenge the Commonwealth's calculations. In light of these 

calculations, we hold the Commonwealth's utilizing Harbert's 

admitted arson expertise by focusing his participation 

- 34 -
predominantly on the examination of witnesses related to the 

fire did not violate Cantrell. Permitting private prosecutors 

to handle only innocuous witnesses and evidentiary matters would 

effectively abrogate the common-law principle that still permits 

their appointment. As set out above, abrogation is a task for 

the General Assembly rather than the courts. In the absence of 

such abrogation, we hold Harbert's participation in appellant's 

prosecution did not violate the principles in Cantrell. 

Thus, we affirm both the trial court's decision to allow 

Harbert's participation and the level to which it permitted 

Harbert to participate. 

V. 

ADMISSIBILITY OF PAWN SHOP RECORDS 

 Police recovered three rings, one of which was a diamond 

anniversary band, from a pawn shop in Bristol, Tennessee. The 

Commonwealth sought to prove the rings had belonged to the 

victim and that appellant was the person who had sold them to 

the pawn shop. 

The Commonwealth offered evidence from the Riners' 

babysitter/housekeeper and one of the victim's co-workers that 

the victim "always wore" the diamond anniversary band and that 

she had that ring on at work on the day of the fire. 

 The Commonwealth offered testimony from Cheryl Brown, the 

manager of the pawn shop from which the rings were recovered. 

Brown identified Commonwealth's Exhibit 97-A as pawn shop 

- 35 -
records showing entries in both a journal and spiral notebook 

kept in the ordinary course of business. The spiral notebook 

indicated that, on March 11, 1999, Charles Douglas Riner of 159 

Bear Drive, Bluff City, Tennessee, sold the pawn shop "assorted 

merchandise," for which he received $230. The corresponding 

entry in the journal, assigned the number 1054, contained a more 

detailed description of the merchandise, including "three rings" 

and "four pocket watches." A tag bearing the number 1054 was 

then placed on each item and would have remained in place until 

each item was sold. 

 Appellant objected to admission of the logs, arguing the 

Commonwealth failed to subpoena the entrant and the evidence 

failed to prove the entrant was unavailable. The Commonwealth 

represented that the entrant was "elderly[,] . . . eighty (80) 

some years old and is not able [to come to court]." The trial 

court then observed, "You've got to tell me those things; I'm 

not a mind reader. . . . I'm going to have to have some 

evidence here, so I can make a ruling, but . . . inconvenience 

and unavailability, that's an issue, so I['ve] got to know, is 

this entrant unavailable or not?" 

 Witness Brown then testified that the employee who made the 

entries was seventy-nine years old, was "off on sick leave" 

because she had "suffered a back injury" and "is unable to get 

up right now." Appellant renewed his objection to admission of 

the records based on lack of proof of unavailability, arguing "I 

- 36 -
don't know whether she's in a wheelchair or not." The trial 

court observed, "I don't know whether she's in the hospital or 

is available or not." The parties then discussed briefly a 

second objection to the records, one not at issue in this 

appeal. After that discussion, the court ruled, "I'm going to 

allow [the records] and overrule your motion and find [them] to 

be an exception to the hearsay rule under the Shopbook Rule, the 

business records kept." 

 When appellant took the stand, he admitted he sold a bag of 

what he called "scrap" jewelry to the pawn shop, but he denied 

having seen the rings he sold that were identified as the 

victim's, either at the time he sold them or at any other time. 

Appellant claimed he found the bag of jewelry in the safe in the 

basement of the house he had shared with the victim, opened it 

enough to see just a few of the items, and "assumed" it 

contained rings and other jewelry he had collected since he was 

a teenager but would no longer wear because they were out of 

style. He testified that when he arrived at the pawn shop, one 

of the store's employees took the bag to a table behind the 

counter and examined each item individually, outside appellant's 

view, while appellant looked around the store. 

A. WAIVER OF OBJECTION BY PRESENTING EVIDENCE OF SAME CHARACTER 

 The Commonwealth contends appellant waived his right to 

object to the introduction of the pawn shop records on hearsay 

grounds because he presented evidence of the same character when 

- 37 -
he took the stand and admitted that he sold a bag of jewelry to 

the pawn shop. We disagree. 

 "Generally, when a party unsuccessfully objects to evidence 

that he considers improper and then introduces on his own behalf 

evidence of the same character, he waives his earlier objection 

to the admission of that evidence." Combs v. Norfolk & Western 

Ry., 256 Va. 490, 499, 507 S.E.2d 355, 360 (1998) (holding 

plaintiff waived objection where plaintiff objected to 

defendant's use of work bench as demonstrative exhibit because 

it differed from work bench plaintiff was using on day of injury 

and plaintiff subsequently "used the same exhibit[] in 

presenting demonstrative evidence on his own behalf"). However, 

[a]n objection to previously introduced 

testimony is not waived by "the mere 

cross-examination of a witness or the 

introduction of rebuttal evidence, either or 

both." A waiver does not result until the 

party objecting to the introduction of 

evidence actually introduces, on his own 

behalf, evidence that is similar to that to 

which the objection applies. 

McGill v. Commonwealth, 10 Va. App. 237, 244, 391 S.E.2d 597, 

691 (1990) (citation omitted) (quoting Snead v. Commonwealth, 

138 Va. 787, 801, 121 S.E. 82, 86 (1924)); see also Hubbard, 243 

Va. at 9-10, 413 S.E.2d at 879 (finding waiver where party 

objected to opponent's use of "reconstructed opinion evidence to 

prove speed" and then offered what the Court found was her own 

"reconstructed opinion evidence to prove speed"). 

- 38 -
 In McGill, which involved a charge of murdering a 

prostitute, the Commonwealth introduced evidence that the 

accused had assaulted a different prostitute earlier in the same 

evening during which the murder was committed. McGill, 10 

Va. App. at 243-44, 391 S.E.2d at 601. The accused objected to 

the admission of evidence of other crimes to prove the crime 

charged. Id. at 244, 391 S.E.2d at 601. When the accused took 

the stand, he "described his version of this assault." Id. We 

rejected the Commonwealth's claim that the accused's testimony 

constituted the introduction of evidence of the same character, 

holding that the accused "only attempted to rebut the 

Commonwealth's evidence by describing his version of how the 

other assault occurred and did not attempt to introduce similar 

evidence on his own behalf." Id.; see also Brooks v. Bankson, 

248 Va. 197, 207, 445 S.E.2d 473, 479 (1994) (holding that where 

"the Sellers made known to the trial court their objections to 

the court's interpretation of the contract, and to its 

evidentiary ruling predicated on that interpretation," "the 

Sellers were entitled to present evidence of their own on the 

same subject" "[i]n order to meet the Buyers' evidence of the 

condition of the crawl space introduced pursuant to these 

rulings"). 

Here, appellant was entitled to explain the challenged 

hearsay evidence that tended to indicate he had sold various 

items of jewelry to the pawn shop without waiving his objection 

- 39 -
to the admission of that hearsay evidence. Appellant did not 

use the pawn shop's records or any similar hearsay evidence with 

which to do so. Further, when appellant testified, he did not 

identify any of the rings to which the pawn shop records had 

connected him and said he merely glanced at the contents of the 

bag before selling them. Thus, appellant did not waive his 

right to object to the Commonwealth's hearsay evidence by 

introducing evidence of the same character. 

B. BUSINESS RECORDS: PROOF OF ENTRANT'S UNAVAILABILITY 

The business records exception to the hearsay rule requires 

proof of "actual" or "commercial" unavailability. Tickel v. 

Commonwealth, 11 Va. App. 558, 565, 400 S.E.2d 534, 538 (1991). 

It is well established that reasons for actual unavailability 

include illness. Id. The proponent of the hearsay evidence 

need not attempt to subpoena the witness as long as it provides 

a reasonable explanation for why a subpoena was not issued. 

McDonnough v. Commonwealth, 25 Va. App. 120, 129, 486 S.E.2d 

570, 574 (1997). Finally, "'the sufficiency of proof to 

establish the unavailability of a witness is largely within the 

discretion of the trial [judge], and, in the absence of a 

showing that such discretion has been abused, will not be 

interfered with on appeal.'" Bennett v. Commonwealth, 33 

Va. App. 335, 348, 533 S.E.2d 22, 29 (2000) (quoting Burton v. 

Oldfield, 195 Va. 544, 550, 79 S.E.2d 660, 665 (1954)). 

- 40 -
 Here, evidence in the record supports a finding that the 

employee who made the entry in the pawn shop's records was 

unavailable because she was out of work with a back injury that 

left her "unable to get up" at the time of trial. 

Notwithstanding the trial court's statement, "I don't know 

whether she's . . . available or not," made during counsel's 

argument prior to the court's ruling, the court later ruled that 

the evidence was admissible under "the Shopbook Rule, the 

business records kept [rule]." Although the trial court gave no 

contemporaneous explanation for its ruling, established 

precedent provides that, 

[a]bsent clear evidence to the contrary in 

the record, the judgment of a trial court 

comes to us on appeal with a presumption 

that the law was correctly applied to the 

facts. . . . [W]e will not fix upon 

isolated statements of the trial judge taken 

out of the full context in which they were 

made, and use them as a predicate for 

holding the law has been misapplied. 

Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 

291 (1977) (emphasis added); see also Bassett v. Commonwealth, 

13 Va. App. 580, 583-84, 414 S.E.2d 419, 421 (1992) (applying 

Yarborough to hold that "the trial court's remark is not, in and 

of itself, 'the full context' simply because it represents the 

only point at which the court [expressly] addressed the 

[factual] issue [in dispute]"). The trial court clearly stated 

during discussion on the motion that it needed to know whether 

the "entrant [was] unavailable or not" in order to rule on the 

- 41 -
motion. Thus, the trial court's statement, during earlier 

argument, that it did not know whether the entrant was "in the 

hospital or is available or not," does not constitute clear 

evidence that the court improperly applied the law. To the 

extent the trial court's earlier statement could be construed as 

a preliminary finding that the Commonwealth failed to prove the 

entrant's unavailability, we must presume the trial court's 

ultimate ruling constituted its reversal of this preliminary 

finding. Because the evidence supports a finding that the 

entrant was unavailable due to illness, we affirm the trial 

court's admission of the evidence. 

VI. 

 For these reasons, we hold the trial court did not 

erroneously (1) deny the motion to change venue; (2) deny 

appellant's motion for mistrial based on juror misconduct that 

resulted in dismissal of that juror; (3) allow a private 

prosecutor to participate in the trial; or (4) admit the 

business records of a pawn shop as an exception to the hearsay 

rule without proof that the entrant was unavailable. Thus, we 

affirm the challenged convictions. 

Affirmed.

- 42 -