COURT OF APPEALS OF VIRGINIA
Present: Judges Bent on, Clements and Beales Argued at Richmond, Virginia

JOHN EDWARD STEWART MEMORANDUM OPINION * BY v. Record No. 2355-05-2 JUDGE JEAN HARRISON CLEMENTS JANUARY 16, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF NOTTOWAY COUNTY Thomas V. Warren, Judge Keith N. Hurley (Keith N. Hurl ey, P.C., on brief), for appellant. Karen Misbach, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
John Edward Stewart (appellant ) was convicted in a bench trial of two counts of uttering checks knowing them to have been forged and two counts of forgery, in violation of Code § 18.2-172. On appeal, he contends the trial court erred in (1) refusing to grant a mistrial when the Commonwealth failed to disc lose exculpatory information until af ter the presentation of appellant’s evidence and (2) admitting photocopies of th e subject checks into evidence. 1 We agree with appellant that the trial court erre d in not granting a mistrial, and therefore reverse his convictions. As the parties are fully co nversant with the record in this case, and because this memorandum opinion carries no precedential value, th is opinion recites only those facts and

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Appellant was also granted appellate review on the issue of whether the evidence was sufficient to prove he altered the checks. Howe ver, because he did not address this issue on brief, we will not consider it here. See Rule 5A:20(e); Bu chanan v Buchanan , 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992 ) (holding that claims of error “u nsupported by argume nt, authority, or citations to the record do not merit appellate consideration”).- 2 - incidents of the proceedings as ar e necessary to the parties’ unders tanding of the disposition of this appeal.
I. BACKGROUND Appellant was charged with forging and utteri ng two checks, one dated September 24, 2004, which had been altered from $144 .00 to $444.00 (check 1), and a nother dated September 17, 2004, which had been altered from $280 .00 to $880.00 (check 2). Appellant had received check 1 and check 2, along with three other payroll checks, in paym ent for wages earned wh ile an employee of Donald Lewis of Lewis Construction. Lewis had employed appellant for approximately one and a half months during the late summ er and early fall of 2004. Appellant cashed the checks at Baldwin Auto Sales (BAS), where he had bought several cars in the years leading up to the events in question. Over the same period of time, various BAS employees had cashed more than twenty-five payr oll checks a year for appellant, although no records of those transactions were kept. After BAS deposited check 1 and check 2 into its account at the bank, the bank return ed the checks to BAS becau se they had been altered. Deputy Robert Jones of the Nottoway Sheriff’s Department questioned appellant in two separate interviews, during each of which appellan t denied having altered the checks. Appellant told Deputy Jones that “no one el se had handled the checks” betw een the time he received them from Lewis and the time he cashed them at BAS. He also told the deputy that he had received only the proper, original amounts in exchange for the checks when he cashed them at BAS. At appellant’s request, Deputy Jones sent check 2 to the “state lab” fo r handwriting analysis. A pretrial discovery order was entered, di recting the Commonwealth to “provide the defendant with all information of whatever form , source or nature that tends to exculpate the defendant either through indication of his innoc ence or through the potential impeachment of any government witness.” The Commonwealth was to provide such information “in writing not less- 3 - than fifteen (15) days prior to [trial].” The prosecutor inform ed defense counsel that “there wasn’t any” such exculpatory evidence. At trial on June 1, 2005, the Commonwealth sought to in troduce into evidence copies of each check. The first doc ument was a photocopyof check 1, which was at tached to the notice from the bank indicating that the amoun t of the check had been altered. Together with the notice from the bank, the photocopy of the check was marked for identification as “Commonwealth’s Exhibit #1” (exhibit 1). Lewis identified exhibit 1 as a paycheck from his co mpany made payable to appellant for work appellant had done while in Le wis’s employ. Lewis tes tified, without objection, that the check had been written for $144.00, not the $444.0 0 amount reflected in exhibit 1. During Lewis’s testimony, appellant’s counsel objected on hearsay grounds to the admission of any evidence regarding notices received from the bank stating that the check had been altered. The prosecutor asserted that such evidence was “not offered to prove that [the check] was altered because [Lewis had] alread y testified it was altered.” The trial judge overru led the objection on that basis. Mike Baldwin, treasurer of BAS, testified on direct examination as follows regarding exhibit 1: [THE PROSECUTOR]: I’ m going to show you [a] check marked for identification as number one and ask you as treasurer if you had any business with that particular -- A: Yes, sir. I . . . k now about that chec k and how it was cashed and that it came back and we had to pa y for this check also.
THE COURT: Ca shed it for how much? THE WITNESS: This was the four hundred and forty-four dollar check. THE COURT: Did you cash that one or did your father cash it, or do you know? THE WITNESS: I do not know.- 4 - THE COURT: But, your re cords show that it was cashed by your company. THE WITNESS: Our comp any cashed it, but we don’t know which one of us cashed it. Asked on cross-examination if there was any writ ten record of the transaction, Mike Baldwin responded: “No, sir. No more than the check its elf that we did cash it.” William Baldwin, Mike Baldwin’s father and a salesman at the busine ss, testified that he received a photocopy of check 1 when it was returned from the bank , but not the original. Deputy Jones testified that, despite his attempt to retrieve it, the bank was not ab le to provide him with check 1 in its original form. The second document was a facs imile from the state lab of ch eck 2. It was marked for identification as “Commonwealth’s Exhibit #2” (exhibit 2). Lewi s identified exhibit 2 as a paycheck from his company made payable to appellant. Lewis te stified the check had been written for $280.00, not the $880. 00 that appeared on exhi bit 2. Exhibit 2 showed that check 2 had been stamped by the bank “returned not paid . . . altered. ” Mike Baldwin testified that he saw his father cash check 2 for appellant but did not see how much it was cashed for. Al though he could not recall the date the check was ca shed, he remembered the transaction because appellant expressed interest that day in purchasing a car, de spite still owing BAS a balance on another vehicle. Mike Baldwin stated that, as treasurer of the company, he was aware th at check 2 had been deposited into BAS’s bank account for $8 80.00 because, when check 2 was returned from the ba nk unpaid, BAS had to pay the bank $880.00 to cove r the check. He also testified that he was unaware th e check had been altered until it was returned by the bank. After being shown exhi bit 2, William Ba ldwin testified that he personally cashed check 2 for appellant for $880.00. He admitted on cross-examination, however, that he had no record of that transactio n and recalled the amount on ly because he read it- 5 - off the copy of the ch eck he was just shown. 2 William Baldwin also testif ied that he could not tell the check had been altered when he cashed it for appellant. Deputy Jones te stified that he received the original check from W illiam Baldwin befo re sending it to th e state lab. The or iginal was still at the lab at the time of the trial. During the direct examinatio n of William Baldwin, appellant ’s counsel objected to the admission of exhibit 2, ex plaining: “[M]y objection is not to th e photocopy of the check, [but to the stamp] on it. . . . I don’t want th e check [itself] to serve as proof that it was altered.” The trial judge responded, “I don’t consider this stamp that says altered, as somebody at the bank testifying to the truth of it [having] been altered.” The prosecutor agreed, st ating, “[W]e’re relying not on [the stamp] at all, but on the maker of the check indicating that he wr ote it for a diff erent amount and, ipso facto, somebody alte red the check.” Defense counsel replied, “That’s fine.” After the trial judge reiterated that the stamp on exhibit 2 would not serve as proof that check 2 had been altered, the direct testimony of William Baldwin continued. Exhibit 2 wa s not introduced into evidence at that time. Later, after Deputy Jones was recalled as a witness, the Commonwea lth offered exhibit 1 and exhibit 2 into evidence. Appe llant objected to the admission of exhibit 1, arguing that, in the absence of testimony by bank personnel, the best evidence rule preclude d the admission of the photocopy of check 1 and the hear say rule precluded the admission of the attached notice from the bank. The court overruled the objection, admitti ng exhibit 1 into evidence as a “bus iness record . . . [and] despite the best evidence rule .” Appellant made no objection to the admission of exhibit 2 at the time.

2 The Commonwealth expressly c oncedes in its appellate brief that this is the correct recitation of William Baldwin’s testimony.- 6 - At the close of the Commonwealth’s evidence , appellant moved to st rike the evidence on the ground that the Commonwealth failed to prove the checks had been altered when he cashed them. The evidence did not prove, appellant’s counsel argued, “what happened—how [the checks] got altered . . . [,] at what stage [they] got altered,” or who altere d them. The trial judge denied the motion, stating: “The checks that were handed to [appe llant were] one hundred forty-four and two hundred eighty. As to whet her or not he altered them or somebody else altered them or what, it’s obvious to me they were altered at the time [appellant] cashed the checks.” Appellant testified in his own defense. He did not dispute that he had received the checks or that he had cashed them, but maintained he had neither altered nor fraudu lently negotiated either check. He testified that the checks had not been altered at th e time he negotiated them to BAS and that he had received from Willia m Baldwin the original, proper value in exchange for each. After listening to appellant’s direct testimony, the prosecutor became aware that he was in possession of information potentially relevant to appellant’s testimony and to appellant’s guilt or innocence. The prosecuto r immediately informed appellant and the trial judge that, in January 2005, the Commonwealth received a complaint from BAS pe rsonnel that an employee named Jones, who was not authorized to access the cash drawer, had been “ caught in the act of trying to steal the money from the cash drawer.” Jones, according to the pros ecutor, was a “multiple convicted felon and a thief,” wh o had worked at BAS since befo re September 20 04. There had been no money missing from the cash drawer, an d a grand jury had refused to indict on the complaint. The prosecutor explai ned that the information may nevertheless have been exculpatory because Jones “was in fact working [at BAS] at th e same time” appellant ca shed the checks at BAS and “[Jones] could have stolen the m oney and forged the checks himself.”- 7 - Upon receiving the information, appellant’s attorney moved for a mistrial on the ground that he “should have had that information before, [as] that would have put thin gs in a diff erent light, certainly, as far as the trial goes.” The prosec utor opposed the motion. When asked by the trial judge how such information was relevant, the prosecutor explained that, without the disclosu re of the new informatio n, the trial judge would have had only two theories to choose from: “Either [appellant] . . . forged [t he checks] and got the mone y or the Baldwins gave him the original [amounts] and changed [the checks ] themselves.” With th e disclosure of the new information, however, the prosec utor continued, defense counsel could now “conceivably argue it was another employee who could have st olen the money and altered the checks.” The trial judge denied the motion for a mistrial , stating: “I don’t think it’s exculpatory. I think it’s one of those things that ’s a stretch . . . . [The crime charged against appellant occurred in September 2004, so] I don’t think that would be exculpatory evidence that there’s somebody in [BAS] that was charged with stealing money in January [2005].” Appellant recalled Mike Baldwin. He testified that Jone s was working at BAS in September 2004. Baldwin explained that Jo nes cleaned “floors and things lik e that” for the company, “but [they] tried not to ever leave him in [the office with the cash draw er] by himself at all.” However, Baldwin further testified, Jones was in the o ffice helping him stuff envelopes one day when Baldwin left the room. “A nd,” Baldwin continued, “s omething just told me to go back and check, and I did. . . . I went b ack and looked, and . . . Jone s was in my money drawer just going at it. And, when I walked in, he dro pped the money that was in the drawer.” Baldwin testified that the checks they cashed “would be kept in the same drawer ” as the money. Baldwin fired Jones after the incident, although Baldwin was unabl e to say with certainty when th e incident occurred. Baldwin did not know whether Jone s “ever attempted to cashany checks that were wr itten to the business.”- 8 - Appellant than renewed his moti on to strike, and the trial ju dge denied the motion. After closing arguments, the judge addr essed appellant, stating in part: Again, I acknowledge it hasn’t been as pretty as they usually are in so far as connec ting up everything, every i being dotted and every t being crosse d and checked and so forth. What also sort of doesn’t tie in the way I wish it had -- I wish the way it would, so it would be a better or clearer picture, is who cashed the check exactly, a log and so forth. I’m reluctant to say that either Mr. Baldwin is not a good business man . . . but how they cash checks is somewhat problematic. And, I’m frankly surprised that they don’t have more trouble. . . .
* * * * * * * As to [your] suggestion that maybe this other person that was a dishonest person somehow had something to do with this is just a grand stretch in so far as I’m concerned. The notion that maybe after Mr. Baldwin cashed th e check that [this dishonest employee] would have altered it for some reason . . . , that suggestion doesn’t make any sens e at all to me. You said steadfastly you took the checks there, you cashed them for one hundred forty-four and you cashed them for two hundred eighty, but just because you insist that’s what you did and just because you steadfastly said that, doesn’t mean that it’s so. Mr. Baldwin said to the contrary. Why would they lie about one of their customers? W hy would they say that we gave Stewart eight hundred eighty dollars . . . ? We gave Stewart four hundred forty-four dollars . . . ? Why would they do that? Why would they say that if they didn’ t do it? Why would they give you the two hundred eighty and one hundred forty-four and then they -- maybe Mr. Baldwin altered the ch eck. Why would he do it? Why would anybody do it but you? It doesn’t make any sense whatsoever why anybody would do this but you, Mr. Stewart. The trial judge foun d appellant guilty as charged, and this appe al followed.
II. MOTION FOR MISTRIAL Appellant claims the trial court erred in de nying his motion for a mistrial. He argues that the Commonwealth’s failure to timely disclose the information about Jones denied him his constitutional rights under Brady v. Maryland , 373 U.S. 83 (1963). We agree.- 9 - “[W]hether a trial court should grant a mistri al is a matter resting within its discretion, and absent a showing of abuse of discretion, the court’s ruling will not be disturbed on appeal.” Cheng v. Commonwealth , 240 Va. 26, 40, 393 S.E.2d 599, 607 (1990). However, “by definition, when the trial court makes an error of law, an abuse of discretion occurs.” Bass v. Commonwealth , 31 Va. App. 373, 382, 523 S.E.2d 534, 539 (2000). “We review [appellant’s claim] under sett led constitutional principles concerning the disclosure of exculpatory evidence.” Lovitt v. Warden , 266 Va. 216, 244, 585 S.E.2d 801, 817 (2003). “In Brady . . . , the Supreme Court held that a due process violation occurs when the prosecution suppresses evidence favorable to an accuse d that is material either to guilt or to punishment, irrespective whether the prosecution acted in good faith or bad faith.” Id. (citing Brady , 373 U.S. at 87). Here, there is no question that the prosecuto r suppressed evidence that was favorable to appellant. The prosecutor acknowle dged at trial that he did not timely inform appellant that the Commonwealth had rece ived information that Jo nes, a “multiple convicte d felon and a thief” who worked at BAS since befo re September 2004, had be en “caught in the act of trying to steal the money from the cash drawer ” in January 2005. The prosecutor further acknowledged that the withheld information showed that Jones “was in fa ct working [at BAS] at the same time ” appellant cashed the checks at BAS and that “[Jones] could have stolen the money and forged the checks himself.” Thus, the suppressed information clearly lent support to the defense’s theory that someone at BAS forged the checks after they had been cashed by appellant and before they were deposited in the company’s bank account. The question remains, however, whether the information about Jones was material to appellant’s guilt or punishment. “‘ [I]mplicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.’” United States v. Bagley ,- 10 - 473 U.S. 667, 674-75 (1985) (quoting United States v. Agurs , 427 U.S. 97, 104 (1976)). “[E]vidence is material only if there is a reas onable probability that, had the evidence been disclosed to the defense, the result of the proc eeding would have been different. A ‘reasonable probability’ is a probability sufficient to unde rmine confidence in the outcome.” Id. at 682. “At the heart of this inquiry is a determination whet her the evidence favorable to the defendant could reasonably be considered as placing the entire case in such a different light that confidence in the verdict is undermined.” Lovitt , 266 Va. at 244, 585 S.E.2d at 817 (citing Strickler v. Greene , 527 U.S. 263, 290 (1999)). Indeed, as the Un ited States Supreme Court has stated: The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the c ontext of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. Agurs , 427 U.S. at 112-13 (footnotes omitted). “[ T]he determination whether undisclosed exculpatory evidence was material must be made by considering its cumulative effect.” Lovitt , 266 Va. at 244, 585 S.E.2d at 817 (citing Kyles v. Whitley , 514 U.S. 419, 436 n.10 (1995)). Here, the defense’s theory of the case does not contradict the Co mmonwealth’s evidence that the two checks were at some point altered. Rather, appellant’s theory of the case challenges only the Commonwealth’s claim that he was the one who altered them. Consistent with his contention that the checks were not altered whil e in his possession, appellant testified on his own behalf that he did not alter the checks and that he received only the proper amount in return for each check when he cashed them at BAS.- 11 - The trial judge made a contrary factual de termination based on th e testimony of William and Mike Baldwin that appellant cashed the checks for $444.00 and $880.00—the altered amounts. However, the testimony offered by Wi lliam and Mike Baldwin regarding the amount appellant received from BAS in exchange for the two checks was equivocal at best. When asked how much check 1 was cashed for, Mike Baldwin obliquely responded, “This was the four hundred and forty-four dollar check.” He furthe r testified that he di d not know who at BAS cashed the check for appellant and that the c opy of the returned, altered check for $444.00 was the only record they had of cashing the check. Additionally, while William Baldwin testified initially that he cashed check 2 for $880.00, he admitted on cross-examination that he had no independent recollection of the amount and re called that it was $880.00 only because he had just read it off the copy of the $880.00 check he was show n at trial. In finding appellant guilty as charged, the trial judge himself acknowledged the Commonwealth’s evidence regarding the cashing of the checks was not as clear and complete as he would have preferred. The strength of the Commonwealth’s case is fu rther diminished by the fact that the check alterations went undetected by BAS personnel until the checks were returned by the bank. William Baldwin testified he could not tell check 2 had been altered when he cashed it for appellant. Conversely, the prosecu tor described the alterations as being immediately apparent to anyone who looked at them. The trial judge char acterized them as bei ng “pretty obvious” to him. Indeed, the trial judge commented that the checks were so carelessly altered and suspicious looking he did not know why BAS personnel had cas hed them. Having reviewed exhibit 1 and exhibit 2 in the record, we do not disagree with the trial judge’s assessmen t of the alterations. Plainly, William Baldwin’s testimony that he could not tell check 2 had been altered and the fact that the checks were obviously altered supports a ppellant’s theory that the checks were altered only after he cashed them.- 12 - Given the evident weakness of the Common wealth’s case, we conclude that the information withheld by the prosecutor about Jone s is “sufficient to undermine confidence in the outcome” of the case. Bagley , 473 U.S. at 682. As previously mentioned, Jones, a “mu ltiple convicted felon and a thief,” was working at BAS when appellant cas hed the checks. Mike Baldwin testified that, sometime af ter the checks were cashed, he caught Jones trying to steal money from the cash drawer. Mike Baldwin further testified that they “tried not to ever leave [Jones] in [the office with the cash drawer] by hi mself at all.” Howeve r, as evinced by the reported incident, Jones was indeed sometimes left in the office by himsel f. Mike Baldwin also te stified that the cashed checks were kept in the cash dr awer and that he was unsure whet her Jones had “ever attempted to cash any checks that were written to the business.” Clearly, the suppressed eviden ce reveals that Jones had the motive and opportunity to commit the offens es attributed to appellant. Because of its tenuous nature, the Commonwealth’s evidence does not exclude the reasonable hypothesis of innocence that Jones altered th e checks cashed by appellant an d stole the corresponding money from the cash drawer. Accordingl y, the withheld information “could reasonably be considered as placing the entire case in such a di fferent light that confidence in the verdict is undermined.” Lovitt , 266 Va. at 244, 585 S.E.2d at 817. We hold, therefore, that the suppressed evidence about Jones was material to appellant’s guilt. The Commonwealth asserts that, even if the withheld information was exculpatory and material, “any due process violation was cure d by the prosecutor’s disclosure” of that information at trial. Thus, the Commonwealth argues, the trial judge did not err in denying appellant’s motion for a mistrial because appellant was not prejudi ced by the belated disclosure of the evidence regarding Jones. We disagree. Late disclosure does not take on constitutional proportions unless an accused is prejudiced by the discovery violations depriving him of a fair trial. So long as exculpatory evidence is obtained in time that it can be us ed effectively by the defendant,- 13 - and there is no showing that an accused has been prejudiced, there is no due process violation. It is the defendant’s ability to utilize the evidence at trial, and not the timing of the disclosure, that is determinative of prejudice. Moreno v. Commonwealth , 10 Va. App. 408, 417, 392 S.E.2d 836, 842 (1990) (citations omitted). Thus, where the suppressed exculpator y evidence is provided to the defense during trial, the defendant must show “‘that the failure to earlier disclose prejudiced him because it came so late that the information disclosed could not be effectively used at trial.’” Read v. Va.
State Bar , 233 Va. 560, 564-65, 357 S.E.2d 544, 546-47 (1987) (emphasis omitted) (quoting United States v. Darwin , 757 F.2d 1193, 1201 (11th Cir. 1985)). Here, the prosecutor provided the informati on regarding Jones to the defense only after appellant had concluded his direct ex amination. As we noted in Moreno : The constitutional right to r eceive exculpatory evidence is not fulfilled, and a prosecutor’s duty is not satisfied, simply by disclosure; timely disclosure is required. “This right guarantees an accused sufficient time to investigate and evaluate the evidence in preparation for trial.” Where a defendant is forced, to his prejudice, to proceed ill prepared or in undue haste because of the prosecutor’s untimely disclosure, his constitutional right is impaired, and his conviction must be reversed. 10 Va. App. at 417, 392 S.E.2d at 842 (citati ons omitted) (quoting Lomax v. Commonwealth , 228 Va. 168, 172, 319 S.E.2d 763, 765 (1984)). In this case, the prosecutor’s belated disclosure denied appellant the opportunity to utilize the exculpatory evidence in his preparation for trial. Indeed, by the time the exculpatory evidence was disclosed, defense counsel had cross-examined several witnesses and appellant had already testified in his ow n defense, thus potentially compromising whatever alternativ e trial strategy the ev idence might have suggested. We hold, therefore, that the prosecutor’s belated disclosure of evidence that was probative of a theory that someone other than appellant had altered the chec ks in question prejudiced appellant and, thus, constituted a Brady violation.- 14 - Accordingly, the trial judge abused his discretion in denying appellant’s motion for a mistrial. Consequently, we reve rse appellant’s convictions and remand for a new trial, if the Commonwealth be so advised. 3
Reversed and remanded.

3 “Because the case will be remanded and the evidence well may be presented differently upon a new trial, we will not give an advisory opinion regarding” appellant’s remaining claims of error. Commonwealth v. Cary , 271 Va. 87, 102, 623 S.E.2d 906, 914 (2006). While we do not discount [appellant ’s] assertions on these issues and recognize that they may likely r ecur in the event of a new trial, it is also likely that the presenta tion of evidence will be sufficiently different that any expression by this Court as to th e correctness of the rulings of the trial court in th e former trial . . . would not be relevant and advisory only. Id.