COURT OF APPEALS OF VIRGINIA

Present: Judges Causey, Lorish and White

CYNTHIA ANN BROWN

MEMORANDUM OPINION*

v. Record No. 0134-23-2 PER CURIAM

MARCH 26, 2024

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF AMELIA COUNTY

Paul W. Cella, Judge

(David G. Moss; The Law Office of David G. Moss, PLLC, on 

brief), for appellant.

(Jason S. Miyares, Attorney General; Stephen J. Sovinsky, Assistant 

Attorney General, on brief), for appellee.

Cynthia Ann Brown appeals her convictions of five counts of felonious uttering a check 

under Code § 18.2-172 and one count of feloniously obtaining money by false pretenses under 

Code § 18.2-178. She argues on appeal that the trial court erred in admitting Wells Fargo 

business records into evidence. After examining the briefs and record in this case, the panel 

unanimously holds that oral argument is unnecessary because “the appeal is wholly without 

merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a). Finding no error, we affirm the trial court’s 

judgment.

BACKGROUND

Cynthia Ann Brown was indicted in Amelia County Circuit Court on five counts of 

felonious uttering a check under Code § 18.2-172 and one count of feloniously obtaining money 

by false pretenses under Code § 18.2-178. During the bench trial, the Commonwealth moved 

* This opinion is not designated for publication. See Code § 17.1-413(A).

UNPUBLISHED
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copies of the alleged fraudulent checks into evidence, relying on a business record certificate of 

authenticity from Wells Fargo Bank. Brown objected to the fraudulent checks being admitted 

into evidence and argued that the Commonwealth failed to comply with the authentication

requirements of Code § 8.01-390.3(B).1 The trial court overruled her objection and admitted the 

evidence after defense counsel acknowledged that the Commonwealth provided him with the 

documents in the course of discovery while the case was pending in the general district court. 

The five checks in question were drawn on the account of Preston A. Richardson, were payable 

to Cynthia A. Brown in amounts ranging from $45 to $782, bore Richardson’s purported 

signature, and were endorsed and cashed by Brown. The checks were cashed while Richardson 

was incarcerated. Richardson testified that he did not give Brown the authority to write and sign 

his name on the checks in question.2 

After the Commonwealth rested, Brown testified on direct examination about why she 

wrote and cashed the checks and claimed that she did so with Richardson’s permission. Brown 

identified each of the five checks by its number, the amount of each check, and the purpose for 

1 Under Code § 8.01-390.3(A), authentication of a business record and the foundation 

required by Virginia Rule of Evidence 2:803(6) may be laid by “(i) witness testimony, (ii) a 

certification of the authenticity of and foundation for the record” by either a record custodian or 

other qualified witness, “or (iii) a combination of witness testimony and a certification.” Code 

§ 8.01-390.3(B) requires a proponent of a business record to

(i) give written notice to all other parties if a certification under 

this section will be relied upon in whole or in part in authenticating 

and laying the foundation for admission of such record and 

(ii) provide a copy of the record and the certification to all other 

parties, so that all parties have a fair opportunity to challenge the 

record and certification. The notice and copy of the record and 

certification shall be provided no later than 15 days in advance of 

the trial or hearing, unless an order of the court specifies a different 

time.

2 Richardson testified that he authorized Brown to use his checking account only one 

time, to write a check to his attorney. 
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which Richardson authorized it. She admitted that she wrote the checks to herself and cashed 

them. At the close of trial, the court found Brown guilty of all the offenses and sentenced her to 

30 years of incarceration with 29 years and 4 months suspended. This appeal follows. 

ANALYSIS

Brown argues on appeal that although the Commonwealth provided her with copies of 

the records and the certificate, the failure to provide written notice of its intent to authenticate 

those records using that certificate rendered that evidence inadmissible under Code 

§ 8.01-390.3(B). Brown asserts that the trial court’s improper overruling of her objection is 

reversible error. 

“When ‘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 [the appellate court] cannot reverse for the alleged error.’” Stevens v. 

Commonwealth, 72 Va. App. 546, 557 (2020) (alteration in original) (quoting Hubbard v. 

Commonwealth, 243 Va. 1, 9 (1992)). The defendant “‘cannot . . . avail[]’ himself of an 

objection to evidence if he ‘has at some other time during the trial,’ either ‘voluntarily elicited 

the same evidence’ or ‘permitted it to be brought out by [the opposing party] without objection.’” 

Id. (alterations in original) (quoting Burns v. Bd. of Supervisors of Stafford Cnty., 227 Va. 354, 

363 (1984)). This “same-evidence principle” applies to not only “exactly the same evidence” but 

also evidence involving “the same subject,” “the same character,” or “similar to that to which the 

objection applies.” Id. (quoting Isaac v. Commonwealth, 58 Va. App. 255, 260 (2011)).

“An exception to the same-evidence principle exists for evidence elicited ‘during 

cross-examination of a witness or in rebuttal testimony.’” Isaac, 58 Va. App. at 261 (quoting 

Zektaw v. Commonwealth, 278 Va. 127, 134 (2009)). However, “Virginia courts have applied 

the rebuttal exception in very limited circumstances,” and it “does not apply when the defendant 
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presents in his case in chief the same or similar evidence he previously objected to in order to 

explain it away or to offer a more favorable interpretation.” Id. at 261-62. For instance, a

defendant who testifies that he had no knowledge of a letter is rebutting testimony that he sent 

such a letter; a defendant explaining why he wrote a letter is not. See Snead v. Commonwealth, 

138 Va. 787, 801 (1924) (defendant’s testimony denying knowledge of a letter was rebuttal 

testimony for purposes of same-evidence principle); Moore Lumber Corp. v. Walker, 110 Va. 

775, 778-79 (1910) (defendant waived his parol evidence objection under same-evidence 

principle when he provided his own parol evidence testimony). 

During Brown’s case-in-chief, while testifying on direct examination, Brown went through 

the five checks and explained that she wrote and cashed them, the reasons why she did do so, and 

how the owner gave her permission to write those checks for those purposes. Her testimony 

authenticated “the same or similar evidence [s]he previously objected to in order to explain it away 

or to offer a more favorable interpretation.” Isaac, 58 Va. App. at 262. Under the same-evidence 

principle, Brown waived her objection to the introduction of the checks when she affirmatively used 

their content in her own case-in-chief to develop her defense, and neither the cross-examination nor 

rebuttal testimony exceptions apply. Accordingly, we decline to consider her waived objection on 

appeal.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.