Calvin Lee Miller v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 7, 1999
• Docket: 2774983
• Status: Unpublished

Opinion

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.

- 2 - 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

- 3 - 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

- 4 - 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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