Calvin Lee Miller v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia
CALVIN LEE MILLER
MEMORANDUM OPINION * BY
v. Record No. 2774-98-3 JUDGE SAM W. COLEMAN III
DECEMBER 7, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge
Harry W. Brown for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General; Robert H.
Anderson, III, Assistant Attorney General, on
brief), for appellee.
Calvin Lee Miller was convicted in a bench trial of obtaining
property by false pretenses in violation of Code § 18.2-178. On
appeal, Miller contends that the trial court erred in permitting
the Commonwealth to amend the indictment and that the evidence was
insufficient to support the conviction. For the following
reasons, we affirm the conviction.
BACKGROUND
On January 26, 1998, Miller purchased a laptop computer from
Computer Renaissance, Inc., a computer store owned and operated by
John Callan Garst. The computer, valued at approximately $650,
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
was purchased with a check. Garst did not sell the computer to
Miller or otherwise participate in the transaction, but he stood
fifteen to twenty feet from the salesperson who sold Miller the
computer. Although Garst did not see the check that Miller gave
to the salesperson, the check that was returned from the bank
corresponded to the check that was recorded in the point of sale
cash register system. Shortly after Miller purchased the
computer, the bank upon which the check had been drawn notified
Garst that the check would be dishonored because the account did
not exist. Garst telephoned Miller on more than one occasion to
discuss payment for the computer. Garst also sent Miller a
certified letter requesting payment. Garst testified that Miller
acknowledged passing the check and that he would "make it good."
However, Miller never honored the check.
ANALYSIS
Amendment of the Indictment
Miller contends that the trial court erred in allowing the
Commonwealth to amend the indictment at the close of its
case-in-chief. Miller argues that he was unable to adequately
prepare a defense to the charge as amended. Miller further
argues that because the amendment was a surprise, he should have
been afforded an opportunity to continue the case for a
reasonable time as required by Code § 19.2-231.
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Here, the original indictment charged that Miller "unlawfully
and feloniously, with intent to defraud, obtain[ed] money or
personal property in the amount of $200 or more by false pretenses
from John Callan Garst, with the intent to defraud." At the close
of the Commonwealth's case, Miller moved to strike the evidence
arguing, inter alia, that the indictment alleged that the victim
was Garst rather than Computer Renaissance, Inc., the party to
whom the check was made. The trial court permitted the
Commonwealth to amend the indictment to reflect that the victim
was Computer Renaissance, Inc. Miller, however, failed to object
to the trial court's ruling allowing the Commonwealth to amend the
indictment. Further, Miller did not argue that he should be
rearraigned, and he did not request a continuance. We will not
consider for the first time on appeal an issue not preserved in
the trial court. See Rule 5A:18.
Sufficiency of the Evidence
Miller argues that the evidence was insufficient to support
his conviction because Garst's testimony was "inherently
unbelievable." He argues that Garst did not have an independent
recollection of the transaction and that during questioning Garst
exhibited some confusion regarding the details of the transaction.
On review of a challenge to the sufficiency of the evidence,
we view the evidence in the light most favorable to the
Commonwealth and grant to it all reasonable inferences fairly
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deducible therefrom. See Commonwealth v. Jenkins, 255 Va. 516,
521, 499 S.E.2d 263, 265 (1998). "The credibility of the
witnesses and the weight accorded the evidence are matters solely
for the fact finder who has the opportunity to see and hear that
evidence as it is presented." Sandoval v. Commonwealth, 20 Va.
App. 133, 138, 455 S.E.2d 730, 732 (1995) (citations omitted).
"The judgment of a trial court sitting without a jury is entitled
to the same weight as a jury verdict, and will not be disturbed on
appeal unless plainly wrong or without evidence to support it."
Beck v. Commonwealth, 2 Va. App. 170, 172, 342 S.E.2d 642, 643
(1986).
To sustain a conviction of larceny by false
pretenses, the Commonwealth must prove:
(a) that the accused intended to defraud;
(b) that a fraud actually occurred; (c) that
the accused used false pretenses to
perpetrate the fraud; and (d) that the false
pretenses induced the owner to part with his
property.
Wynne v. Commonwealth, 18 Va. App. 459, 460, 445 S.E.2d 160, 161
(1994) (en banc) (citing Riegert v. Commonwealth, 218 Va. 511,
518, 237 S.E.2d 803, 807 (1977)). "The gravamen of the offense
. . . is the obtainment of ownership of property, by false
representations or pretenses." Quidley v. Commonwealth, 221 Va.
963, 966, 275 S.E.2d 622, 624-25 (1981) (citations omitted).
The evidence in the light most favorable to the Commonwealth
demonstrates that Miller purchased a laptop computer valued in
excess of $200 from Computer Renaissance, Inc. with a check he
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knew would not be honored by the bank. In a telephone
conversation with Garst, Miller acknowledged that he passed the
check and that he would pay for the computer. Miller, however,
neither paid for the computer, nor did he return it.
In order for a witness' testimony to be disregarded as a
matter of law, the evidence must be inherently incredible or the
witness' account of the events must be so contrary to human
experience as to be unworthy of belief. See Owens v.
Commonwealth, 186 Va. 689, 696-97, 43 S.E.2d 895, 898 (1947).
Although Garst acknowledged on cross-examination that he was not
absolutely clear on all of the details of the transaction and that
he did not personally assist in the transaction, Garst's account
of the events was not inherently incredible and the trial court
was entitled to weigh this evidence in determining Garst's
credibility and Miller's guilt. See Sandoval, 20 Va. App. at 138,
455 S.E.2d at 732. Accordingly, the evidence was sufficient to
support Miller's conviction for obtaining property by false
pretenses in violation of Code § 18.2-178.
Thus, we affirm the trial court's judgment.
Affirmed.
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