                                                COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, AtLee and Senior Judge Bumgardner
UNPUBLISHED


              Argued at Norfolk, Virginia


              TONY LAMONT PUGH
                                                                               MEMORANDUM OPINION* BY
              v.        Record No. 1299-16-1                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                                     MAY 23, 2017
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                                             Dean W. Sword, Jr., Judge Designate

                                  Sean Domer, Assistant Public Defender, for appellant.

                                  Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
                                  Attorney General, on brief), for appellee.


                        A jury in the Circuit Court of the City of Suffolk (“trial court”) convicted appellant Tony

              Lamont Pugh of obtaining money or property by false pretenses, forging counterfeit bills,

              uttering counterfeit bills, and identity theft. The jury recommended, and the trial court imposed,

              two years in prison for each conviction, yielding a total active sentence of eight years. On

              appeal, Pugh argues: (1) there was insufficient evidence of his intent to defraud, an element of

              each crime for which he was convicted, and (2) the trial court erred in admitting a copy of the

              forged check over his best evidence objection. For the following reasons, we disagree and

              affirm.

                                                               I. FACTS

                        “When examining a challenge to the sufficiency of the evidence, an appellate court must

              review the evidence in the light most favorable to the prevailing party at trial and consider any


                        *
                            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
reasonable inferences from the facts proved.” Thomas v. Commonwealth, 279 Va. 131, 155-56,

688 S.E.2d 220, 234 (2010). “The judgment of the trial court is presumed to be correct and will

be reversed only upon a showing that it is ‘plainly wrong or without evidence to support it.’” Id.

at 156, 688 S.E.2d at 234 (quoting Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26,

28 (2005)).

       So viewed, the evidence shows that on October 8, 2013, Pugh entered a Walmart store to

cash a check for $1,376.12. The check listed “BBISSETTE’S CONCRETE CO.” as the payor

and Pugh as the payee. A Walmart employee wrote Pugh’s license identification number in the

endorsement area on the back, then scanned and cashed the check.

       At trial, an employee of a Chesapeake-based business named Bissette Construction

testified that no business named “Bbissette’s Concrete Co.” exists and that the routing

information on the check Pugh cashed was not affiliated with her company. Instead, the check

drew from a PNC bank account affiliated with a chain of salons, “Hair Salon LP.” The day Pugh

cashed the check, the owner of Hair Salon LP saw that a check she had not issued had drawn

from her account. She had not heard of Pugh or Bissette Construction. She reported the

fraudulent transaction and contacted the police. Using video surveillance from Walmart, police

identified Pugh as the person who cashed the fraudulent check. Pugh was arrested when officers

discovered multiple warrants for his arrest during a traffic stop approximately one month later.

       Pugh testified that he cashed the check in question, but maintained that he received the

check as payment for the sale of a vehicle. He stated he had posted a Craigslist advertisement

and met with a prospective buyer in the Walmart parking lot. The buyer arrived with the check

made out to Pugh. Although they had agreed to a sale price of $1,400, Pugh stated he accepted

the check for a lesser amount as he was eager to sell the vehicle. He did not provide the buyer’s

name at trial, but described him as a “clean shaven, black guy, little taller than me. Casually

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dressed.” Pugh claimed that the buyer told him the check was from his employer, who was

loaning him the money to purchase the vehicle. At the buyer’s suggestion, he and Pugh entered

the Walmart so Pugh could cash the check at the store’s “money center.” After the check

cleared, Pugh said he signed the title over to the buyer.

       DMV records associated with the automobile showed that on October 10, 2013, Pugh

transferred title to someone named Iris Nicole Carver, and listed a sale price for $1,300. Pugh

admitted at trial that he had been previously convicted of a dozen felonies, including stealing car

stereos, possessing burglary tools, and twice signing his brother’s name on a traffic ticket. The

trial court took a recess before closing arguments, after which Pugh did not return, so he was not

present for the remainder of the proceedings.

                                            II. ANALYSIS

                                       A. Evidence of Intent

       Pugh does not contest that he presented a forged check; rather, he argues there was

inadequate evidence that he knew it was forged, and thus the Commonwealth failed to prove

intent to defraud, an element of each of his convictions.

       “Possession of a forged check by an accused, which he claims as a payee, is prima facie

evidence that he either forged the instrument or procured it to be forged.” Walker v.

Commonwealth, 25 Va. App. 50, 58-59, 486 S.E.2d 126, 131 (1997) (emphasis omitted)

(quoting Fitzgerald v. Commonwealth, 227 Va. 171, 174, 313 S.E.2d 394, 395 (1984)). “Such a

prima facie showing of guilt does not rise to the level of a conclusive presumption, and it may be

rebutted, but it will warrant submission of the issue of guilt of forgery to the jury, and will

support a verdict of guilty if the jury so finds.” Fitzgerald, 227 Va. at 174, 313 S.E.2d at 395.

       It is undisputed that Pugh exchanged the forged check for cash. The only evidence Pugh

presented to rebut the presumption that he forged the check, or procured its forgery, was his own

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account of the sale. However, there were numerous reasons the jury could, in its role of judging

witness credibility, “disbelieve the self-serving testimony of the accused and . . . conclude that

the accused is lying to conceal his guilt.” Marable v. Commonwealth, 27 Va. App. 505, 509-10,

500 S.E.2d 233, 235 (1998).

       Under Pugh’s theory of innocence, the buyer was the criminal actor, responsible for Pugh

facing four felony charges. According to Pugh’s own testimony, he possessed, but did not

provide, information about the buyer that would have supported his narrative. For example, he

did not disclose the alleged buyer’s name, although he testified numerous times that the buyer

gave it to him. He did not provide any contact information for the buyer, despite testifying that

he had screen shots of text message exchanges containing the buyer’s cell phone number. When

asked if he attempted to contact the buyer after learning of the charges against him, Pugh

equivocated: “It’s a -- no. I mean well, later on,” but did not disclose whether he was successful

despite numerous opportunities to do so. In light of this, a jury reasonably could have questioned

Pugh’s failure to provide more information about the buyer and concluded that he did not do so

because he was being untruthful.

       Pugh also failed to present other evidence to corroborate his version of events and rebut

the presumption that he knew the check was forged. He offered no proof that the Craigslist post

advertising the sale of the vehicle existed.1 He provided no evidence to support his claim that he

met with the buyer in the parking lot, or that they entered the Walmart together, such as

surveillance footage from when the sale allegedly took place. He did not explain the discrepancy

between his description of the buyer as male and the new title holder being female according to

       1
          Craigslist posts are managed either through a Craigslist account, or via a link emailed to
the poster, and thus would generally be available to the individual who created it even after it
was no longer viewable publicly. Moreover, Pugh testified that he regularly bought and sold
cars and had “a long Craigslist account,” suggesting that this failure is not due to his lack of
familiarity with the website.

                                                -4-
the DMV records. In short, the jury was entitled to disbelieve Pugh, who had a dozen prior

felony convictions, including for forgery, and to conclude that his hypothesis of innocence was

not reasonable. Because Pugh failed to rebut the presumption that he knew the check was forged

when he cashed it, we cannot say that the jury’s rejection of Pugh’s testimony and decision to

convict were plainly wrong.

                                          B. Best Evidence

       Pugh also argues that the trial court should have sustained his best evidence objection to a

copy of the forged check obtained from Hair Salon LP’s online bank account. The best evidence

rule requires that “where the contents of a writing are desired to be proved, the writing itself

must be produced or its absence sufficiently accounted for before other evidence of its contents

can be admitted.” Brown v. Commonwealth, 54 Va. App. 107, 115, 676 S.E.2d 326, 330 (2009)

(emphasis omitted) (quoting Bradshaw v. Commonwealth, 16 Va. App. 374, 379, 429 S.E.2d

881, 885 (1993)). “A trial court’s decision to sustain or overrule a best evidence objection, like

other decisions about the admissibility of evidence, is reviewed for abuse of discretion.”

Jennings v. Commonwealth, 65 Va. App. 669, 673, 779 S.E.2d 864, 866 (2015).

       Pugh’s argument on appeal relies on Virginia Rule of Evidence 2:1003, which addresses

admissibility of “substitute checks” over best evidence objections. The Rule was created in

response to the “Check Clearing for the 21st Century Act,” a federal law that enables banks to

process checks electronically through the creation of “substitute checks,” rather than physically

moving original checks between banks. See Michael J. Weber & Dennis E. McDonnell, Check

Please? The “Check 21” Act and Its Impact On Check Fraud Claims, 40 Tort & Ins. L.J. 941

(Spring 2005).

       The Rule states:

                        (a) Admissibility generally. A substitute check created
                 pursuant to the federal Check Clearing for the 21st Century . . .
                                                 -5-
               Act, 12 U.S.C. § 5001 et seq., shall be admissible in evidence in
               any Virginia legal proceeding, civil or criminal, to the same extent
               the original check would be.

                       (b) Presumption from designation and legend. A document
               received from a banking institution that is designated as a
               “substitute check” and that bears the legend “This is a legal copy
               of your check. You can use it the same way you would use the
               original check” shall be presumed to be a substitute check created
               pursuant to the Act applicable under subdivision (a) of this Rule.

       Pugh argues that the copy of the check admitted here should have been excluded because

it does not contain the exact language set forth in quotation marks in Rule 2:1003(b). Instead,

the check image here contains the following language: “This is an image of a check, substitute

check or deposit ticket. Refer to your posted transactions to verify the status of the item. For

more information about image delivery . . . ,” followed by contact information for the bank.

       Pugh’s argument fails for numerous reasons. First, Rule 2:1003 does not set out

requirements for admissibility of any copy of a check under the best evidence rule; rather, it

establishes that “substitute checks,” a technical term, are admissible as originals, and sets forth

conditions that create a presumption of admissibility under the best evidence rule. Nothing in the

record indicates that the check image here was a “substitute check,” or that its admissibility is

governed by Rule 2:1003. (In fact, the check image’s express language indicates that it is “an

image of a check, substitute check or deposit ticket” (emphasis added), belying any inference

that it was necessarily a “substitute check” because it was an electronically-generated check

image.) In addition, even if the exhibit is a “substitute check,” the omission of the exact

language from Rule 2:1003(b) should not require its exclusion — it simply would not receive the

presumption of admissibility as an original.

       Furthermore, “[t]his Court has noted that proper circumstances exist to treat a photocopy

as a duplicate original when the accuracy of the photocopy is not disputed.” Allocca v. Allocca,

23 Va. App. 571, 580, 478 S.E.2d 702, 706 (1996). On direct, Pugh admitted to cashing a check
                                                -6-
with the same amount, payor, and payee as the check image depicted. When asked “Did you

cash that check, the check we’re all asking about?” he replied “Yes, sir.” Accordingly, “[w]hile

this Court has long required proof of a case through the most reliable evidence available, . . .

[Pugh] has not challenged the content of the [check] as represented in the photocopy.” Myrick v.

Commonwealth, 13 Va. App. 333, 339, 412 S.E.2d 176, 179 (1991) (quoting Carmody v. F.W.

Woolworth Co., 234 Va. 198, 200, 361 S.E.2d 128, 129 (1987)). The trial court did not abuse its

discretion in ruling that the check image was admissible over Pugh’s best evidence objection.

                                         III. CONCLUSION

       Finding no error, we affirm Pugh’s convictions.

                                                                                          Affirmed.




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