COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, McClanahan and Petty 

Argued at Salem, Virginia 

WESLEY EUGENE BAKER, II 

 MEMORANDUM OPINION* BY 

v. Record No. 2611-07-3 JUDGE WILLIAM G. PETTY 

FEBRUARY 17, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Mosby G. Perrow, III, Judge 

 Keith Orgera, Assistant Public Defender (Office of the Public 

Defender, on briefs), for appellant. 

 Susan M. Harris, Assistant Attorney General (Robert F. McDonnell, 

Attorney General, on brief), for appellee. 

 The trial court convicted Wesley Eugene Baker, II, of four counts of forgery in violation of 

Code § 18.2-172, and one count of obtaining money by false pretense in violation of Code 

§ 18.2-178. Baker appeals these convictions, arguing that the trial court erred by (1) denying his 

request to remove his attorney due to a conflict of interest, and (2) admitting evidence over his 

objection. For the reasons explained below, we disagree with Baker and affirm his convictions. 

 Because the parties are fully conversant with the record in this case and this 

memorandum opinion carries no precedential value, we recite only those facts and incidents of 

the proceedings as are necessary to the parties’ understanding of the disposition of this appeal. 

Upon familiar principles, we view those facts and incidents on appeal in the light most favorable to 

the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Bailey 

v. Commonwealth, 38 Va. App. 794, 797, 568 S.E.2d 440, 442 (2002). 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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I. 

 First, Baker argues that the trial court erred in denying his request to remove his attorney 

because of a conflict of interest. We review the trial court’s determination to inquire into an 

asserted conflict of interest for abuse of discretion. See Johnson v. Commonwealth, 50 Va. App. 

600, 606, 652 S.E.2d 156, 159 (2007). Baker contends that the trial court had a duty to determine 

whether an actual conflict of interest existed when he informed the court that he had written a letter 

to the Virgnia Bar Association complaining about his attorney. We hold that the trial court had no 

duty to conduct an inquiry into the asserted conflict of interest on these facts. 

 Immediately prior to trial, the court denied Baker’s motions to suppress evidence and 

exclude evidence by a handwriting analysis expert from the state forensic laboratory. Baker then 

asked the trial court to continue his case so he could be tried by a jury, but the court denied that 

motion noting that Baker had signed a written jury trial waiver some six months earlier.1 During 

the pretrial colloquy, Baker stated that he was not satisfied with his lawyer’s services. He explained 

he was so dissatisfied with his lawyer’s services that he had written a letter to the “Virginia B

Association”

ar 

 

2

 (the VBA letter) two weeks prior to trial. When the trial court asked why Baker was 

dissatisfied with his attorney, Baker stated that he had not met with counsel in person before trial. 

Baker also felt that he had not had time to prepare for trial because he received copies of motions 

1

 As we have long noted, “a last minute request for a jury trial may cause hardships and 

scheduling difficulties, but we . . . believe that it is not a problem without a solution.” Wright v. 

Commonwealth, 4 Va. App. 303, 309, 357 S.E.2d 547, 551 (1987). Here, the trial court 

employed an effective solution by obtaining a waiver of jury trial from the defendant well in 

advance of the actual trial date. 

2

 We note that Baker sent his complaint to the “Virginia Bar Association,” rather than the 

Virginia State Bar, the agency charged with investigating allegations of attorney misconduct. 

See Code § 54.1-3909 and Rule 6, § 1 (“[T]he Virginia State Bar, as the Administrative agency 

of the Supreme Court of Virginia, carries forward the responsibility for the discipline of lawyers 

and the investigation of persons practicing law in the Commonwealth without proper 

authority.”). 
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only a week before trial. The trial court asked Baker “[w]hat preparation was needed other than 

what’s been done . . . ?” Baker replied that he felt the pretrial motions were not filed in a timely 

manner because he did not “even [get] a chance to look at the discovery stuff a week before trial[.]” 

 The trial court then asked Baker’s attorney, Colin Drabert, whether he had opportunity to 

confer with Baker. Drabert explained that Baker had been held “near Charlottesville” and that they 

had discussed his case over the telephone. Drabert stated he had received a letter from Baker 

requesting that he make certain pretrial motions and that he had responded to the letter 

approximately two weeks before trial “with all the information that [Baker] requested.” Drabert 

also stated that he had been to the Commonwealth Attorney’s office twice to review Baker’s file 

under the Commonwealth’s open file policy. In his answer to the trial court’s inquiry, Drabert also 

stated that he was ready to proceed with the trial, explaining, “if Mr. Baker is unhappy with me . . . 

he has a right to be so, Your Honor, but I believe I could try the case today.” Drabert also indicated 

that he had not recieved a copy of the VBA letter. 

 Based on this discussion, the trial court determined that Drabert was competent, had “ably 

represented” Baker, had “presented motions . . . above and beyond the call of duty,” and had 

adequately prepared for trial. The trial court declined to replace Drabert or continue the case. 

 When “the possibility of a conflict of interest is apparent, a trial court has a duty to conduct 

further inquiry to determine if an actual conflict exists.” Dowell v. Commonwealth, 3 Va. App. 

555, 559, 351 S.E.2d 915, 917 (1987); see also Wood v. Georgia, 450 U.S. 261, 272 (1981). 

However, “[t]he mere possibility of a conflict of interest, which is not apparent or to which no 

objection is made, prompts no need for a trial court to conduct further inquiry.” Dowell, 3 Va. App. 

at 559, 351 S.E.2d at 917. 

 We have previously addressed what types of situations create apparent conflicts of interest. 

Apparent conflicts of interest typically arise in the context of multiple representations. See, e.g., id.
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at 555, 351 S.E.2d at 915 (holding that appellant did not receive the effective assistance of counsel 

when her attorney also represented her two codefendants who testified against her at trial); accord

Johnson, 50 Va. App. 600, 652 S.E.2d 156 (concluding that the trial court had correctly disqualified 

defense counsel prior to trial when counsel also represented a key Commonwealth’s witness on 

unrelated drug charges). However, apparent conflicts of interest can also arise in other situations in 

which a “defendant shows that his counsel actively represented actual conflicting interests that 

adversely affected his counsel’s performance . . . .” Carter v. Commonwealth, 11 Va. App. 569, 

574, 400 S.E.2d 540, 543 (1991) (citations omitted) (vacating conviction and remanding when trial 

court failed to “conduct an inquiry to determine the extent and effect of an alleged conflict of 

interest raised in defense counsel’s motion to withdraw” when the Commonwealth accused the 

defense of unethical behavior). 

 These facts in this case stand in sharp contrast with those in Carter, 11 Va. App. at 569, 

400 S.E.2d at 540. In Carter, we vacated and remanded for a new trial because of an 

uninvestigated apparent conflict of interest. Id. We concluded that an apparent conflict of 

interest existed in Carter because the trial court denied the defense attorneys’ motion to withdraw 

after the Commonwealth threatened to file a Bar complaint against them for alleged witness 

tampering in a criminal trial. Id. at 571-72, 400 S.E.2d at 541-42. We concluded that an 

apparent conflict of interest existed based on the following facts: 

[The defense attorneys] were required to conduct an effective 

defense of the accused in an atmosphere where a potential defense 

witness possibly had been compromised, where the prosecutor had 

made allegations of misconduct and still held open the possibility 

of bringing ethical charges, and where the trial judge declared in 

open court that the prosecutor had the discretion to bring those 

charges. 

Id. at 574, 400 S.E.2d at 543. The situation we described in Carter obviously would have 

affected the attorneys’ ability to zealously represent their client. 
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 Here, Baker merely notified the trial court that he wanted a new lawyer and that he was 

unsatisfied with his lawyer’s performance. To illustrate the level of his frustration with his 

attorney, he stated he had written a letter about his lawyer to the Virginia Bar Association. 

Based on Baker’s assertions, the trial court inquired into defense counsel’s communication with 

Baker and preparation for the case. After making its inquiries, the trial court noted that Drabert 

had adequately conferred with Baker and had appropriately prepared for trial by reviewing the 

Commonwealth’s file and filing appropriate pretrial motions. Further, the trial court gave 

Baker’s attorney an opportunity to make the court aware of any difficulties he had in 

representing Baker. The record also shows that Drabert had not received a copy of Baker’s letter 

to the Virginia Bar Association, and there is nothing in the record revealing the contents of the 

letter or whether the Virginia Bar Association took any action on it. Drabert acknowledged 

Baker’s frustration, but assured the court that he was “ready to try the case.” At no time did 

Baker or his attorney suggest that any conflict of interest existed. 

 The facts before us do not rise to the level of an apparent and obvious conflict of interest. 

Moreover, in light of all the circumstances of the case, including the immediately preceding 

motions to continue the case on other grounds and defense counsel’s assurances to the trial court, 

the trial court could have reasonably concluded that Baker’s complaints were aimed at obtaining 

a new lawyer in order to delay his trial. See, e.g., Johnson v. Commonwealth, 51 Va. App. 369, 

657 S.E.2d 812 (2008) (holding that the trial court did not err by refusing to allow a continuance 

and substitution of counsel on the day trial was scheduled when five previous continuances had 

been allowed). 

 We reject Baker’s argument that the mere allegation that a criminal defendant’s writing a 

letter to the Virginia Bar Association creates an apparent conflict of interest. Instead, in the 

absence of specific facts indicating an apparent and obvious conflict of interest, we rely upon the 
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trial court’s “instinct and judgment based on experience in making its decision.” Wheat v. 

United States, 486 U.S. 153, 163 (1988). Accordingly, we conclude that the trial court did not 

abuse its discretion when it refused to conduct further inquiry into defense counsel’s alleged 

conflict of interest. 

II. 

 Second, Baker argues that the trial court erred in admitting evidence over his objections.

 Baker argued at trial that Commonwealth’s Exhibits 1, 2, 3, 4B, and 4C were not properly 

authenticated as business records and were therefore inadmissible.3 “The admissibility of 

evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on 

appeal in the absence of an abuse of discretion.” Blain v. Commonwealth, 7 Va. App. 10, 16, 

371 S.E.2d 838, 842 (1988). We conclude that the trial court did not abuse its discretion when it 

admitted these exhibits into evidence because they were properly authenticated. 

 At trial, Edward Williams testified that he lost his wallet in August 2006. His wallet 

contained his Social Security card, birth certificate, and driver’s license. Shortly after losing his 

wallet, Williams received telephone calls from Rent-A-Center, Colortyme Rental, Aaron’s 

Rental, and Friedman Jewelers advising him that his credit applications had been approved. 

Williams had not, however, applied for credit at those stores. Accordingly, he was afraid that 

“somebody was using [his] identity information” to obtain credit. 

 3

 These documents were: 

1. Rent-A-Center delivery checklist, lease purchase agreement, and rental order 

(Exhibit 1); 

2. Colortyme rental order and rental purchase agreement (Exhibit 2); 

3. Aaron’s lease order form (Exhibit 3); 

4. Friedman Jewelers credit application (Exhibit 4B); and 

5. Friedman Jewelers loan contract (Exhibit 4C). 
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 The assistant Commonwealth’s attorney then showed Williams documents from each store, 

and Williams testified that the signature on each document was not his and that he had not 

attempted to purchase anything at the stores during the pertinent time. He also denied knowing 

Baker and testified that he had never given Baker permission to sign his name. The Commonwealth 

called employees from each store to authenticate the documents. On appeal, Baker argues that the 

documents were not adequately authenticated. 

A. Rent-A-Center4

 Baker posits that the Rent-A-Center agreement was hearsay that did not meet the 

requirements for the business record exception, and was therefore inadmissible. Specifically, 

Baker argues that the agreement was not properly authenticated because the Commonwealth’s 

witness, John Berger, was not a proper custodian of the record. Thus, Baker reasons, the 

Commonwealth did not establish that the document met the requirements of the business record 

exception and the trial court erred by admitting it. We disagree. 

 The Commonwealth relied on the testimony of John Berger, the manager at the 

Rent-A-Center store at the relevant time, to authenticate the document. Mr. Berger identified the 

document as being a Rent-A-Center record, and also recognized Baker as a customer who was 

inside the Rent-A-Center store on August 28, 2006, the date the agreement was signed. Mr. Berger 

did not, however, remember seeing Baker actually sign the lease purchase agreement. 

 It is well settled that “Virginia follows the modern ‘shopbook’ rule or business records 

exception to the hearsay rule, which allows introduction ‘into evidence of verified regular [business] 

entries without requiring proof from the original observers or record keepers.’” Sparks v. 

 4

 For the purposes of this opinion, we assume, without deciding, that the Rent-A-Center 

agreement was hearsay when offered to prove that Baker signed it. The Commonwealth 

concedes this point on brief. Cf. Hamm v. Commonwealth, 16 Va. App. 150, 155-56, 428 

S.E.2d 517, 521 (1993). 
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Commonwealth, 24 Va. App. 279, 282, 482 S.E.2d 69, 71 (1997). Because the trustworthiness of 

documents admitted under the business record exception arises from their nature as records kept in 

the normal course of business, “Automatic” Sprinkler Corp. v. Coley & Patterson, Inc., 219 Va. 

781, 792, 250 S.E.2d 765, 773 (1979), these documents must be “‘verified by testimony of the 

[entrant of the record] or of a superior who testifies to the regular course of business,’” Sparks, 24 

Va. App. at 282, 482 S.E.2d at 71 (alteration in original) (quoting Ford Motor Co. v. Phelps, 239 

Va. 272, 276, 389 S.E.2d 454, 457 (1990)). 

 Here, the witness identified himself as the manager of the Rent-A-Center store at the 

relevant time. He was therefore in a position to know whether the document was an authentic 

Rent-A-Center document. The witness verified that the exhibit consisted of authentic 

Rent-A-Center documents. Accordingly, the trial court did not abuse its discretion when it admitted 

the exhibit. 

B. Other Documents 

 Commonwealth’s Exhibits 2, 3, 4B, and 4C were also properly authenticated. Initially, 

we note that these documents were not hearsay. Our Supreme Court has long-defined hearsay 

evidence as: 

[T]estimony in court, or written evidence, of a statement made out 

of court, the statement being offered as an assertion to show the 

truth of the matters asserted therein, and thus resting for its value 

upon the credibility of the out-of-court asserter. 

Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781 (1977) (quoting 

McCormick on Evidence § 246, at 584 (2d ed. 1972)). The evidentiary value of these documents 

does not rest “upon the credibility of [an] out-of-court asserter.” Id. Instead, the individuals 

called to authenticate the documents were present at their respective workplaces at the relevant 

time and saw Baker sign the documents in question. Accordingly, the hearsay rule is not 

implicated in this case. 
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 However, regardless of its hearsay or non-hearsay character, it is axiomatic that a 

document must be authenticated, or shown to be genuine, before it can be admitted into 

evidence. Proctor v. Commonwealth, 14 Va. App. 937, 938, 419 S.E.2d 867, 868 (1992). The 

proponent of the document needs to supply “an evidentiary basis sufficient for the trier of fact to 

conclude that the writing came from the source claimed.” Walters v. Littleton, 223 Va. 446, 451, 

290 S.E.2d 839, 841 (1982). A document may be authenticated by circumstantial evidence. 

Bain v. Commonwealth, 215 Va. 89, 91, 205 S.E.2d 641, 643 (1974). “The amount of evidence 

sufficient to establish authenticity will vary according to the type of writing and the 

circumstances attending its admission, but generally proof of any circumstances which will 

support a finding that the writing is genuine will suffice.” Walters, 223 Va. at 451, 290 S.E.2d at 

842. 

 Here, the Commonwealth presented direct evidence as to the documents’ authenticity in 

the form of “witnesses testifying as to the origin or execution of [the] document[s].” Jackson v. 

Commonwealth, 13 Va. App. 599, 602, 413 S.E.2d 662, 665 (1992). Monique Payne, a 

Colortyme employee, identified Baker as the individual who signed the rental purchase agreement 

(Commonwealth’s Exhibit 2) on August 28, 2006, which she then countersigned as a witness. 

Marjorie Purcell Maddox, a clerk at Aaron’s Rental, identified Baker as a customer in the store on 

August 28, 2006. She testified that she watched Baker walk to a table, write, and then bring a lease 

order form (Commonwealth’s Exhibit 3) to her, signed “Edward J. Williams.” April Sullivan, the 

manager at Friedman Jewelers, testified that Baker was a customer in the store on August 31, 2006. 

On that date, she saw Baker sign Williams’ name on a credit application and loan contract 

(Commonwealth’s Exhibits 4B and 4C). 

 The witnesses were employees of the respective stores at the relevant time, and the 

witnesses actually saw or took part in the execution of the documents in question. “[O]ne who 
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has actually observed the execution of the document . . . may, by his or her testimony, provide 

the strongest possible evidence of authenticity.” Charles E. Friend, The Law of Evidence in 

Virginia § 15-1 (6th ed. 2003). Accordingly, the Commonwealth presented an adequate basis 

from which the trial court could determine that each document was “what its proponent claims it 

to be.” Owens v. Commonwealth, 10 Va. App. 309, 311, 391 S.E.2d 605, 607 (1990). 

III. 

For the reasons stated above, we affirm Baker’s convictions. 

Affirmed.