Riner v. Commonwealth

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indictment for arson and murder was later superseded by an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,

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
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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

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.
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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 different 2 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

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.
- 24 -
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
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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.

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