Anthony Bryant Cummings v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 10, 2015
• Docket: 1891141
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Chafin and O’Brien UNPUBLISHED

Argued at Norfolk, Virginia

ANTHONY BRYANT CUMMINGS MEMORANDUM OPINION* BY v. Record No. 1891-14-1 JUDGE TERESA M. CHAFIN NOVEMBER 10, 2015 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Marjorie A. Taylor Arrington, Judge

A. Robinson Winn, Deputy Public Defender (Dalton L. Glass, Assistant Public Defender, on brief), for appellant.

Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Anthony Bryant Cummings was convicted of one misdemeanor count of obtaining

property by false pretenses in violation of Code § 18.2-178 by the Circuit Court of the City of

Chesapeake. On appeal, Cummings argues that the circuit court erred by allowing the

Commonwealth to amend an indictment that originally charged him with the forgery of a public

record in violation of Code § 18.2-168 to an indictment charging him with the offense of which

he was convicted. He also contends that the evidence presented by the Commonwealth failed to

support his conviction. For the reasons that follow, we disagree with Cummings’s arguments

and affirm his conviction.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND

“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence established that Cummings

entered into a contract to build an in-ground swimming pool at a private residence located in the

City of Chesapeake (“the City”). The contract listed Cummings’s company name as

“Mid-Atlantic Pools.” On the same day the contract was signed, Cummings received a $12,500

down payment from the homeowner, and he went to Chesapeake City Hall to obtain a building

permit for the construction project.

Wendy Tabler, a permits manager, assisted Cummings with his application for a building

permit. When Tabler reviewed Cummings’s initial application, she noticed that the construction

company he listed had an expired business license.1 Tabler informed Cummings that a valid

business license was required for the company to receive a building permit and that he could

renew the listed company’s license in another office located in the building. Cummings left

Tabler’s office and returned fifteen to twenty minutes later. He told Tabler that he had

mistakenly listed the wrong company name, and he substituted “Currents Construction

Company” (“Currents”) as the name of the construction company on the application.

Tabler verified that Currents had a valid business license and ensured that Cummings’s

permit application met several other administrative requirements. Tabler then confirmed that the

proposed building project complied with local zoning criteria. After she witnessed Cummings

sign the permit application, Tabler directed Cummings to take the application to the building

1 Although Tabler could not recall the exact name of the construction company that Cummings originally listed on his permit application, she testified that she thought the company name was “Mid-Atlantic.” -2- inspector’s office for further review. Richard Burkard, Jr., the city administrator responsible for

issuing building permits, reviewed and processed Cummings’s permit application that same day.

Among other things, Burkard approved Cummings’s building plans and filled out a building

permit “red” card that was intended to be posted at the construction site. Burkard then issued the

permit to Cummings.

Cummings was not employed or otherwise affiliated with Currents, and he did not have

permission to list the name of that company on his application for the building permit. When

Cummings failed to build the pool or return the down payment that he received from the

homeowner, he was charged with obtaining money or property by false pretenses from the

homeowner in violation of Code § 18.2-178 and forging and uttering a public record in violation

of Code § 18.2-168.

At Cummings’s trial, the owner of Currents testified that Cummings was not authorized

to use the name of the company to apply for building permits. Tabler and Burkard testified about

the permit application process and their interactions with Cummings on June 24, 2013. Tabler

brought Cummings’s original permit application with her to the trial, and copies of the

application and the relevant building plans were introduced into evidence. Tabler explained that

state regulations required the City to physically retain building permit files for three years.

Cummings moved to strike the charges against him. Citing Henry v. Commonwealth, 63

Va. App. 30, 753 S.E.2d 868 (2014), he argued that the evidence presented was insufficient to

prove the elements of the forgery and uttering offenses. He also argued that the evidence failed

to establish that he intended to defraud the homeowner when he accepted the down payment.

The circuit court directed the parties to submit memoranda related to the forgery and uttering

charges and continued the case for further argument.

-3- Upon reviewing the parties’ pleadings and hearing additional argument, the circuit court

concluded that the facts of the case did not fit the definition of forgery under Henry. In response,

the Commonwealth moved to amend the forgery indictment to charge misdemeanor obtaining

property by false pretenses in violation of Code § 18.2-178, arguing that Cummings had obtained

the building permit by lying about the name of his construction company in his application.

Cummings objected to the amendment based on the elements of the offenses and argued that the

amendment did not “fit the facts of the case.” The circuit court allowed the amendment,

convicted Cummings of obtaining property by false pretenses as charged in the amended

indictment, and dismissed the remaining charges. Cummings appealed his misdemeanor

conviction to this Court.

II. ANALYSIS

On appeal, Cummings argues that the circuit court erred by allowing the Commonwealth

to amend the indictment because the amendment impermissibly changed the nature and character

of the offense charged. Cummings also contends that the evidence was insufficient to support

his conviction of obtaining property by false pretenses. Specifically, Cummings argues that the

endorsement of a building permit is not property and that the building permit in question and its

corresponding paperwork were never transferred to him from the City. While Cummings

concedes that he did not make these specific arguments concerning the sufficiency of the

evidence at trial, he requests that we apply the ends of justice exception to Rule 5A:18 and

consider these issues.

A. THE AMENDMENT OF THE INDICTMENT DID NOT CHANGE THE NATURE AND CHARACTER OF THE OFFENSE

Code § 19.2-231 governs the amendment of indictments. That statute provides, in

pertinent part:

-4- If there be any defect in form in any indictment, presentment or information, or if there shall appear to be any variance between the allegations therein and the evidence offered in proof thereof, the court may permit amendment of such indictment, presentment or information, at any time before the jury returns a verdict or the court finds the accused guilty or not guilty, provided the amendment does not change the nature or character of the offense charged.

(Emphasis added). “The purpose of an indictment is to give the defendant notice of the nature

and character of the charged offense so he can make his defense,” Pulliam v. Commonwealth, 55

Va. App. 710, 713, 688 S.E.2d 910, 912 (2010), and “‘[t]he limitation on amendment to

indictments in Code § 19.2-231 to amendments that do not change the nature or character of the

offense is clearly intended to protect the defendant from being deprived of [that] notice . . . ,’” id.

at 713-14, 688 S.E.2d at 912 (quoting Rawls v. Commonwealth, 272 Va. 334, 346, 634 S.E.2d

697, 702 (2006)).

The determination of whether an amendment to an indictment changes the nature and

character of the charged offense presents a question of law involving the interpretation of various

statutes, and accordingly, is reviewed de novo. Id. at 713, 688 S.E.2d at 911. Additionally, we

acknowledge that “Code § 19.2-231 ‘is remedial in nature and is to be liberally construed in

order to achieve the laudable purpose of avoiding further unnecessary delay in the criminal

justice process by allowing amendment, rather than requiring reindictment by a grand jury.’”

Charles v. Commonwealth, 63 Va. App. 289, 295, 756 S.E.2d 917, 920 (2014) (quoting Powell

v. Commonwealth, 261 Va. 512, 533, 552 S.E.2d 344, 356 (2001)).

“In determining whether [an] amended charge changes the nature or character of the

offense charged, we examine the conduct or overt acts proscribed in each statute.” Pulliam, 55

Va. App. at 715, 688 S.E.2d at 913. However, “in analyzing whether an amendment to an

indictment is compliant with Code § 19.2-231, the Court does not ‘compare the elements of the

offense, but the underlying conduct of the defendant.’” Charles, 63 Va. App. at 297, 756 S.E.2d -5- at 921 (quoting Pulliam, 55 Va. App. at 717, 688 S.E.2d at 914). “‘[W]here there is similarity of

purpose and subject matter of the Code sections involved, an amendment to an indictment [that

merely] changes the Code provision under which a defendant is charged . . . does not change the

nature or character of the offense charged and is permissible under the provisions of [Code]

§ 19.2-231.’” Id. at 295-96, 756 S.E.2d at 920 (alterations in original) (quoting Dunaway v.

Commonwealth, 52 Va. App. 281, 297, 663 S.E.2d 117, 125 (2008)).

The indictment at issue in the present case originally charged Cummings with forging a

public record in violation of Code § 18.2-168. That statute provides:

If any person forge a public record, or certificate, return, or attestation, of any public officer or public employee, in relation to any matter wherein such certificate, return, or attestation may be received as legal proof, or utter, or attempt to employ as true, such forged record, certificate, return, or attestation, knowing the same to be forged, he shall be guilty of a Class 4 felony.

Over Cummings’s objection, the indictment was amended by the Commonwealth to charge him

with misdemeanor obtaining property by false pretenses in violation of Code § 18.2-178. That

statute provides, in pertinent part, “[i]f any person obtain, by any false pretense or token, from

any person, with intent to defraud, money, a gift certificate or other property that may be the

subject of larceny, he shall be deemed guilty of larceny thereof . . . [and] shall be guilty of a

Class 4 felony.”2 Code § 18.2-178.

Cummings contends that the amendment of the indictment changed the nature and

character of the offense charged, and he bases his argument primarily on the differing elements

2 The amended indictment charged Cummings with obtaining property under the first clause of Code § 18.2-178(A) rather than the second clause of that subsection that specifically criminalizes obtaining a person’s signature by false pretenses. See Code § 18.2-178(A) (“if [any person] obtain, by any false pretense or token, with [intent to defraud], the signature of any person to a writing, the false making whereof would be forgery, he shall be guilty of a Class 4 felony”). -6- of the offenses charged in the original and amended indictments.3 Cummings argues that, while

both offenses required proof of his intent to defraud, the obtaining by false pretenses offense

required proof of his acquisition of property whereas the forgery offense did not require such

proof. We agree with Cummings that a forgery offense defined by Code § 18.2-168 has different

elements than an obtaining property by false pretenses offense defined by Code § 18.2-178. See

Bateman v. Commonwealth, 205 Va. 595, 600, 139 S.E.2d 102, 106 (1964) (“The evidence

necessary to establish forgery . . . is not the same [as that] required to establish larceny [by false

pretenses].”). As previously stated, however, when determining whether an amendment to an

indictment changes the nature and character of the charged offense, our inquiry focuses on the

underlying conduct of the appellant rather than the elements of the offense. See Charles, 63

Va. App. at 297, 756 S.E.2d at 921.

When we review the conduct and overt acts of Cummings and the purpose and subject

matter of the statutes defining the offenses at issue in this case, we conclude that the amendment

of the indictment did not change the nature and character of the offense charged. While the

offenses defined in Code §§ 18.2-168 and 18.2-178 have different elements, the charges under

both sections were based on the same conduct. The Commonwealth continually premised its

case on the same operative facts throughout the prosecution of both offenses. Under both the

original and amended indictments, the Commonwealth argued that Cummings used a business

name and license number that he was not authorized to use to obtain a building permit from the

3 On appeal, the Commonwealth argues that Rule 5A:18 bars our review of Cummings’s argument concerning the amendment to the indictment. The Commonwealth contends that Cummings failed to argue that the amendment changed the nature and character of the offense charged by the indictment or object to the amendment on that basis. Upon reviewing the record, however, we find that Cummings argued that the offenses presented different elements and required different proof. While he may not have expressly referenced “a change in the nature and character of the offense charged,” we conclude that his argument adequately presented the issue to the trial court, and therefore, preserved it for our review. -7- City. Accordingly, the charges under both the original and amended indictment were based on

the same conduct: Cummings’s misrepresentation on the permit application.

Furthermore, Code §§ 18.2-168 and 18.2-178 share a similarity of purpose and subject

matter.4 While “‘forgery is a crime aimed primarily at safeguarding confidence in the

genuineness of documents,’” Henry, 63 Va. App. at 38, 753 S.E.2d at 872 (quoting 3 Wayne R.

LaFave, Substantive Criminal Law § 19.7(j)(5) (2d ed. 2003)), and “[t]he gravamen of [an

obtaining property by false pretenses] offense . . . is the obtainment of ownership of property,”

Quidley v. Commonwealth, 221 Va. 963, 966, 275 S.E.2d 622, 624 (1981), both charges require

a misrepresentation from the accused. See Henry, 63 Va. App. at 38, 753 S.E.2d at 872.

Although the elements of an obtaining property by false pretenses offense may be established

with proof of a wide variety of misrepresentations and forgery offenses require the accused to

create a false document and thereby misrepresent its genuineness, see id., both offenses are

premised on fraudulent representations made by the accused. Code §§ 18.2-168 and 18.2-178 are

both codified in Chapter 6 of Title 18.2 of the Code of Virginia, entitled “Crimes Involving

Fraud,” and they exist to punish individuals who seek to profit or gain some advantage by

committing fraud.5

Given the similarity of the purpose and subject matter of the statutes at issue in this case

and the fact that the same conduct by Cummings served as the basis of both charges, we

conclude that the amendment of the indictment did not change the nature and character of the

4 We note that these two offenses are commonly charged together. When an individual successfully commits forgery, he or she may falsely represent that the forged document is genuine in order to obtain money or other property. When that individual is successful in obtaining the money or property, he or she is often charged with both forgery and obtaining money or property by false pretenses. 5 A conviction under either section is classified and punished as a Class 4 felony. -8- offense charged. Accordingly, we hold that the circuit court did not err by allowing the

amendment.

B. THE RECORD DOES NOT AFFIRMATIVELY ESTABLISH THAT A MISCARRIAGE OF JUSTICE HAS OCCURRED AND THE ENDS OF JUSTICE EXCEPTION TO RULE 5A:18 DOES NOT APPLY

On appeal, Cummings asks this Court to review his arguments concerning the sufficiency

of the evidence supporting his conviction under the ends of justice exception to Rule 5A:18.

Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis for

reversal unless an objection was stated with reasonable certainty 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 ends

of justice exception is narrow and is to be used sparingly,’” and applies only in the extraordinary

situation where a miscarriage of justice has occurred. Redman v. Commonwealth, 25 Va. App.

215, 220-21, 487 S.E.2d 289, 272 (1997) (quoting Brown v. Commonwealth, 8 Va. App. 126,

132, 380 S.E.2d 8, 10 (1989)). “In order to show that a miscarriage of justice has occurred,

thereby invoking the ends of justice exception, the appellant must demonstrate that he or she was

convicted for conduct that was not a criminal offense or the record must affirmatively prove that

an element of the offense did not occur.” Id. at 221-22, 487 S.E.2d at 273 (emphasis added).

“[T]o invoke the ends of justice exception when sufficiency of the evidence has been

raised for the first time on appeal, an appellant must do more than show that the Commonwealth

failed to prove an element or elements of the offense.” Id. at 221, 487 S.E.2d at 272 (emphasis

in original). “In order to avail oneself of the exception, [the appellant] must affirmatively show

that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Id.

(emphasis in original). “Therefore, ‘in examining a case for miscarriage of justice, we do not

simply review the sufficiency of the evidence under the usual standard, but instead determine

-9- whether the record contains affirmative evidence of innocence or lack of a criminal offense.’”6

Flanagan v. Commonwealth, 58 Va. App. 681, 695, 714 S.E.2d 212, 218 (2011) (quoting

Wheeler v. Commonwealth, 44 Va. App. 689, 692, 607 S.E.2d 133, 135 (2005)). To sustain a

conviction of obtaining property by false pretenses,

the Commonwealth must prove: “(1) an intent to defraud; (2) an actual fraud; (3) use of false pretenses for the purpose of perpetrating the fraud; and (4) accomplishment of the fraud by means of the false pretenses used for the purpose, that is, the false pretenses to some degree must have induced the owner to part with his property.”

Riegert v. Commonwealth, 218 Va. 511, 518, 237 S.E.2d 803, 807 (1977) (quoting Bourgeois v.

Commonwealth, 217 Va. 268, 272, 227 S.E.2d 714, 717 (1976)); see also Shropshire v.

Commonwealth, 40 Va. App. 34, 39, 577 S.E.2d 521, 523 (2003). “The gravamen of the offense

. . . is the obtainment of ownership of property, by false representations or pretenses.” Quidley,

221 Va. at 966, 275 S.E.2d at 624.

Cummings argues that the evidence presented by the Commonwealth failed to establish

that he obtained property by false pretenses.7 Although Cummings presents two separate

assignments of error addressing the sufficiency of the evidence, both arguments are based on the

premise that Cummings did not obtain any property from the City. Cummings contends that the

endorsements he obtained from various city administrators on the building permit are not

property and that the actual building permit in question and its corresponding paperwork were

never transferred to him.

6 When considering the sufficiency of the evidence on appeal in the absence of an appellant’s procedural default under Rule 5A:18, we “presume the judgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly wrong or without evidence to support it.” Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see also Code § 8.01-680. 7 Cummings does not challenge the evidence proving the other elements of the offense. - 10 - We agree with Cummings’s argument that endorsements themselves do not constitute

property that may be the subject of larceny, and therefore, are not considered “property” that

may be obtained by false pretenses under Code § 18.2-178 as charged by the Commonwealth in

this particular case.8 When Cummings applied for the building permit, he obtained permission

from the City to build a swimming pool on a particular piece of property pursuant to specified

plans. Permission to build a swimming pool, however, is not property as that term is defined in

Code § 18.2-178.

Nevertheless, the Commonwealth based Cummings’s obtaining property by false

pretenses charge on the actual copy of the permit that he received rather than the permission to

build granted to him in that permit. The obtaining property by false pretenses charge was based

on Cummings’s acquisition of the pieces of paper on which the permit was printed. “‘At

common law choses in action, including bonds, notes and checks, were not the subject of

larceny, being considered mere rights without corporeal existence, although the taking of the

paper on which they were written could be larceny.’” Hunt v. Commonwealth, 46 Va. App. 25,

31, 614 S.E.2d 668, 670 (2005) (quoting Felkner v. State, 146 A.2d 424, 430 (Md. 1958)).

Accordingly, a single sheet of paper, when stolen or acquired by false pretenses, may be the

subject of a larceny or obtaining property by false pretenses charge. See id.; Owolabi v.

Commonwealth, 16 Va. App. 78, 80-81, 428 S.E.2d 14, 15 (1993).

Cummings makes two arguments on appeal regarding his acquisition of the paper on

which the permit and its accompanying paperwork were printed. First, Cummings contends that

the record affirmatively demonstrates that he never received a copy of the permit from the City.

8 We again note that the amended indictment charged Cummings with obtaining property under the first clause of Code § 18.2-178(A) rather than the second clause of that subsection that specifically criminalizes obtaining a person’s signature by false pretenses. - 11 - Second, Cummings argues that title to the paper on which the permit was printed never passed to

him. We disagree with both of these arguments.

The record fails to affirmatively demonstrate that Cummings did not receive a copy of the

building permit. The relevant provision of the Virginia Uniform Statewide Building Code

pertaining to the issuance of building permits provides that permits “shall be issued as soon as

practicable” and that a copy of the permit “shall be posted on the construction site for public

inspection until the work is complete.” 13 VAC 5-63-100(A) and (E). Tabler testified that

Cummings left her office with the permit application, and Burkard testified that he processed and

issued the permit application on the same day that Cummings presented it. All of the signatures

on the permit were made on June 24, 2013, the same day that Cummings submitted his permit

application. No evidence in the record suggested that Cummings did not receive a copy of his

approved permit on that day.9

Assuming arguendo that he received copies of the building permit, Cummings contends

that title of the building permit never passed to him. “‘[A]n essential element of larceny by false

pretenses is that both title to and possession of property must pass from the victim to the

defendant . . . .’” Shropshire, 40 Va. App. at 39, 577 S.E.2d at 523 (quoting Baker v.

Commonwealth, 225 Va. 192, 194, 300 S.E.2d 788, 788 (1983)). Cummings argues that the City

maintained title to the permit, and he supports his argument with the fact that the City retained

the right to revoke the permit. He also argues that, if title to the permit was transferred from the

9 Although Tabler produced the original copies of the building permit application and the approved permit at trial, she testified that state regulations required the City to retain the original documents for a period of three years. As state regulations also require contractors to post copies of building permits at construction sites, see 13 VAC 5-63-100(E), the circuit court could infer that copies of approved building permits were routinely given to their applicants while the original documents were retained by the City. Also, we note that the amended indictment in this case charged Cummings with obtaining “property” by false pretenses. The “property” referenced in the indictment was not limited to the original building permit, and may be construed to reference copies of the original documents. - 12 - City, that title to the documents transferred to Currents rather than himself. Both of these

arguments are misplaced. The evidence of this case implied that Cummings obtained title to the

permit documents when he received possession of them from the City upon the approval of his

application.

Cummings presents little authority to support his contention that title to the pieces of

paper on which the copies of the permit were printed did not pass to him when he received them.

He cites Bray v. Commonwealth, 9 Va. App. 417, 388 S.E.2d 837 (1990), however, in support of

his argument. In Bray, the appellant was charged with obtaining a key to an apartment by false

pretenses after she attempted to pay her security deposit and first month of rent with a worthless

check. Id. at 419-20, 388 S.E.2d at 837. This Court held that title to the key did not pass to the

appellant, reasoning that the key was “merely an accessory to the lease giving the [appellant] the

means to secure and obtain access to the property during the term of the lease [that] must be

returned to the owner upon termination of the lease.” Id. at 425, 388 S.E.2d at 841.

Cummings attempts to analogize the key in Bray to the building permit papers in this

case. He argues that the permit only gave him temporary permission to build that could be

revoked by the City. We conclude, however, that a key to an apartment is fundamentally

different from paper copies of a building permit. A key to an apartment is much more permanent

and durable than paper copies of a building permit. The owner of leased property would expect

to retain title to the key during the term of a lease because (1) it could be reused at a later date,

and (2) the term of the lease would eventually expire. Paper copies of a building permit posted

at a construction site would more than likely be worthless to the City if it revoked its permission

to build. Additionally, no evidence in the record suggested that the City collected copies of

building permits at the conclusion of construction projects. Accordingly, we determine that Bray

is distinguished from the present case.

- 13 - Cummings’s argument confuses the distinction between the permission to build granted

by the permit and the actual paper on which the permit was printed. While the City retained the

right to revoke the permission to build that it granted to Cummings through the permit, see 13

VAC 5-63-100(H), no evidence in the record suggested that the City also retained title to the

pieces of paper on which copies of the permit were printed. These copies were given to

Cummings to post at his construction site, and it is speculative to conclude that the City intended

to collect them from Cummings at a later date or otherwise retain title of the copies.

Cummings’s additional argument that title of the building permit passed to Currents

rather than himself also fails. While Cummings listed Currents on the building permit

application as the construction company that would perform the work, he clearly listed himself

as the applicant for the permit and he personally obtained possession of copies of the relevant

documents. Moreover, Cummings listed Currents on the application without permission to do

so. Cummings was not employed by Currents, and he was not authorized to obtain building

permits using the name of that company. Currents never obtained possession of the paper on

which the copies of the permit were printed, and only became aware of the project when

Cummings failed to build the swimming pool.

Although the red card of the building permit stated that it was granted to Currents rather

than Cummings, we cannot affirmatively conclude that title to the document vested in Currents

under these circumstances. The evidence suggested that title of the copies of the building permit

papers passed from the City to Cummings, as the applicant requesting the permit and the only

individual who obtained possession of the copies, rather than Currents.

The record of this case fails to affirmatively establish that a miscarriage of justice has

occurred. No affirmative evidence established that Cummings failed to receive copies of the

building permit and its accompanying documents. Further, the evidence failed to establish that

- 14 - title to the copies of the permit documents did not transfer to Cummings. No evidence

affirmatively proved that the City retained title to the copies provided to Cummings or that title

to those copies vested in Currents. For these reasons, we will not apply the ends of justice

exception to Rule 5A:18 to address Cummings’s arguments concerning the sufficiency of the

evidence supporting his conviction.

III. CONCLUSION

We hold that the circuit court did not err by allowing the Commonwealth to amend the

indictment in the present case. Furthermore, we conclude that the evidence of this case failed to

establish that a miscarriage of justice has occurred. Accordingly, we affirm Cummings’s

conviction.

Affirmed and remanded.10

10 We remand this case for the correction of a clerical error in the sentencing order pursuant to Code § 8.01-428. While Cummings was convicted of misdemeanor obtaining property by false pretenses in violation of Code § 18.2-178, the sentencing order indicates that he was convicted of forging a public record in violation of Code § 18.2-168. - 15 -