                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia


VERNICE F. EVANS
                                        MEMORANDUM OPINION * BY
v.        Record No. 0771-96-4        JUDGE JERE M. H. WILLIS, JR.
                                            FEBRUARY 4, 1997
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                    Quinlan H. Hancock, Judge
          Ann H. Potter, Assistant Public Defender
          (Office of the Public Defender, on brief),
          for appellant.

          Richard B. Smith, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     On appeal from her convictions of obtaining money in excess

of $200 by false pretenses, Vernice Evans contends that the trial

court erred (1) in refusing to grant her a recess to procure

civilian clothing, (2) in refusing to admit into evidence the tax

records of a prosecution witness, and (3) in admitting into

evidence the tuition payment records of a private school.    We

find no error and affirm the judgments of the trial court.

     Louise Hart owned and operated an antiques business in

Fairfax County.    Ms. Hart testified that in the fall of 1982,

Evans approached her about purchasing goods comprising an estate

in Philadelphia, Pennsylvania, and, in 1989, approached her about

purchasing goods comprising an estate in Reiserstown, Maryland.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Ms. Hart stated that she made numerous payments to Evans for the

purchase of the estates, writing her checks made payable to cash

and paying her thousands of dollars at a time in cash.

     Investigator Athing testified that at his request Ms. Hart

arranged a meeting in September of 1992 to transfer money to

Evans.   When Evans and Ms. Hart met in a car in a mall parking

lot, Athing approached and asked Evans to step from the vehicle.

Athing stated that Evans denied any knowledge of purchasing

estates for Ms. Hart's antiques business.   Evans told Athing that

Ms. Hart wanted to give her money to purchase food for her

family, and that Ms. Hart often gave her hams and turkeys.    At

trial, Evans testified that she neither told Ms. Hart about any

estates, nor received money from Ms. Hart for the purchase of any

estates.
                                I.

     At the commencement of trial, defense counsel asked the

court for a thirty minute recess so that Evans' family members

could purchase civilian clothing for her to wear at the jury

trial.   The trial court advised counsel that Evans had signed a

document acknowledging that civilian clothing was available and

stating that she did not want to wear civilian clothing.   Defense

counsel told the court that Evans' civilian clothing was

"mildewed and smells"; thus, she had chosen not to wear it.    The

trial court ruled that if Evans wanted to wear the civilian

clothes she had at the jail, he would continue the matter long




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enough for her to change her clothes.    The trial court stated

further that: "I am familiar with the shopping area, if you will,

immediately adjacent to the area where this Courthouse is

situated and I don't know of any clothing store where they're

going to be able to purchase clothes for her within thirty

minutes."   Evans elected to wear jail issue clothing.

     We note at the outset that this is not a question concerning

the state's requiring a criminal defendant to stand trial before

a jury in prison attire.    See Estelle v. Williams, 425 U.S. 501,

512 (1976).   The trial court stated that it would permit Evans to

change into available civilian clothing.   It merely denied her

request for a recess so that her family could shop for, and

purchase, additional clothing for her.

     The record contains no description of the jail issue

clothing worn by Evans at trial.    Thus, we are unable to

determine whether the clothing had characteristics identifying it

as prison attire or whether it had characteristics such that

Evans' appearance while wearing it would in any way prejudice her

defense.

     The decision to grant or deny a recess lies within the sound

discretion of the trial court, and will not be reversed on

appeal, absent a showing of both prejudice and an abuse of

discretion.   Lowery v. Commonwealth, 9 Va. App. 304, 306-07, 387

S.E.2d 508, 509 (1990).    Given its knowledge of the surrounding

merchant districts, the trial court found that it would be



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impossible for Evans' family to secure additional clothing within

the requested thirty minutes.   Defense counsel did not dispute

the trial court's conclusion, asserting only that "[T]here is

 . . . the possibility, the likelihood that since there are a

number of stores close by that the family could get her something

within a half hour . . . ."

     Moreover, after having indicated her desire to wear jail

attire, Evans failed to request a recess to purchase civilian

clothing until the commencement of her trial.   Her failure to

move timely for the opportunity to acquire other clothing

militates strongly in favor of the trial court's decision.    Thus,

under the circumstances, we cannot say that the trial court

abused its discretion. 1

     On appeal, Evans argues also that the trial court's denial

of the requested recess amounted to violations of due process,

equal protection and the presumption of innocence.   We will not

consider these arguments on appeal, because they were not made to

the trial court.   Jacques v. Commonwealth, 12 Va. App. 591, 593,

405 S.E.2d 630, 631 (1991) (citing Rule 5A:18).

                                II.

     Evans next contends that the trial court erred in refusing

to admit into evidence the 1990, 1991 and 1992 federal income tax

     1
      Because we find that the trial court did not abuse its
discretion, we do not address whether Evans showed prejudice.
Lowery v. Commonwealth, 9 Va. App. 304, 306-07, 387 S.E.2d 508,
509 (1990).




                                - 4 -
returns of Ms. Hart, the prosecution's chief witness.    During

cross-examination of Ms. Hart, defense counsel introduced, for

purposes of identification, copies of Ms. Hart's 1990, 1991 and

1992 income tax returns.   These were marked for identification as

Defendant's Exhibit Nos. 3, 4 and 5.     The following dialogue

occurred at the time that the exhibits were marked for purposes

of identification:
     [Defense Counsel]:    Before I forget, let me just ask
                           you if you can identify these tax
                           returns . . .
                  *    *     *    *      *   *    *

     [Defense Counsel]:    May we have [Hart's 1990 income tax
                           return] marked as Exhibit 3? I've
                           got a copy. We could use the
                           original, but if we don't have any
                           objection to the copy?

     [Commonwealth]:       I may have an objection to this,
                           Your Honor, as to why it's
                           relevant.

     [Defense Counsel]:    I'll show that it's relevant later.

     The Court:            Well, all he's asked at this point
                           is to have it marked; isn't that
                           right?

     [Defense Counsel]:    That's correct.


     After the exhibits were properly marked, defense counsel did

not further cross-examine Ms. Hart concerning her tax returns or

the information contained therein.

     After the Commonwealth completed its case-in-chief, defense

counsel sought the admission of the tax returns into evidence to

show a possible bias or motive for Ms. Hart to testify falsely.




                                 - 5 -
Counsel argued that Ms. Hart might fear prosecution for

underreporting her income and that the lack of itemized business

deductions on her tax returns relating to payments made on the

estates contradicted her testimony that she made payments to

Evans.    After hearing the representations of counsel, the trial

court denied the motion.   It ruled that the tax returns were not

admissible under the circumstances and noted additionally that a

prior discovery order requesting Ms. Hart's tax records had been

denied.
     A party offering evidence must show its relevance and must

lay a foundation for its introduction into evidence.    Lucas v.

HCMF Corp., 238 Va. 446, 451, 384 S.E.2d 92, 95 (1989).    Despite

defense counsel's identification of the returns and independent

assertions as to the relevance of the tax returns, the record is

devoid of any attempt to lay a foundation for the introduction of

the tax returns into evidence.    While reliance solely upon the

earlier discovery order would not support the trial court's

decision to deny the admission of the tax records, the record at

the time of the ruling supports the decision to reject the

records into evidence.

     On appeal, Evans contends also that the trial court's

refusal to admit Ms. Hart's tax records violated her right to

confront and cross-examine her accuser in derogation of the Sixth

Amendment to the United States Constitution and Article I, § 8 of

the Virginia Constitution.   Evans did not raise these issues at



                                 - 6 -
trial.    She is barred from asserting them for the first time on

appeal.   Rule 5A:18.

                                 III.

     Evans asserts that the trial court erred in allowing the

Commonwealth to introduce evidence showing that Evans sent three

children to a private school between 1989 and 1992, that the

tuition bills for the three year period exceeded $19,000, and

that almost all of the tuition payments were made in cash.      Evans

asserts that this evidence was both immaterial and irrelevant.
     "'[E]very fact, however remote or insignificant, that tends

to establish a probability or improbability of a fact in issue is

admissible.'    Of course, the weight to be given such

circumstantial evidence is an issue for the jury."       Cheng v.

Commonwealth, 240 Va. 26, 39, 393 S.E.2d 599, 606 (1990)

(citation omitted).

     "A trial judge's ruling on the admissibility of evidence

'will not be disturbed on appeal in the absence of an abuse of

discretion.'"    Hunter v. Commonwealth, 15 Va. App. 717, 724, 427

S.E.2d 197, 202 (1993) (citation omitted).

     The school tuition payment records were relevant

circumstantial evidence showing a pattern of large cash payments

being made at the same time that Ms. Hart was transferring large

amounts of cash to Evans, and impeaching Evans' credibility by

contradicting her statements to Investigator Athing that she

needed money to purchase food.    The weight of this evidence was




                                 - 7 -
for the jury to determine.   Accordingly, the trial court did not

abuse its discretion in admitting the tuition records.

     The judgments of the trial court are affirmed.

                                                   Affirmed.




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