COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Mal veaux and Senior Judge Frank Argued at Newport News, Virginia

PHILLIP ROBERT BROOKS MEMORANDUM OPINION * BY v. Record No . 1228-16-1 JUDGE MAR Y BENNETT MALVEAUX DECEMBER 27, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Christopher W. Hutton, Judge Francis D. Mazzio, III, Deputy Pu blic Defender (Mark A. Phill ips, Assistant Public Defender, on brief), for appellant. Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mar k R. Herring, Attorney General, on brief), for appellee.

Phillip Robert Brooks (“appellant”) was co nvicted of obtaining money by false pretenses, in violation of Code § 18 .2-178. On appeal, ap pellant argues that a fatal variance ex isted between the allegations of the indictment and the evidence introduced at tr ial. Appellant further argues that the trial court erred in denying his motion to strike because the C ommonwealth’s evidence relied on the testimony of an incredible witn ess. Finding no error, we affir m the judgment of the trial court. I. BACKGROUND On appeal, “we consider the evide nce and all reasonable inferen ces flowing from that evidence in the light most favor able to the Commonwealth, the p revailing party at trial.” Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) ( en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)).

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - In 2011, Olivia Shaw and appellant were involved in a romantic relationship. On December 22, 2011, appellant asked Shaw if she would cash a che ck for him because he did not have a bank account or identifica tion. She refused the request at first because “it just didn’t seem right,” but acquiesced when appell ant asked again the next day. Appellant told Shaw that his aunt was giving him the check, but would only write it out if h e had someone to cash it for him. Appellant called his cousin and s aid that he had someone to cas h a check, and Shaw “gave him [her] information.” Appellant’s cousin arrived at Shaw’s apartment and handed appel lant a check, which was made out to Shaw in the amount of $1,500 from the Bank of Ameri ca account of Cheryl Tucker. The three then went to a branc h of Old Point National Bank loca ted on West Queen Street in Hampton. When they arrived, the cousin told Shaw to deposit th e check in the ATM. Shaw was unable to deposit the check in the ATM because she did not have her PIN number. She returned home to check her banking records to try to find her PIN number . Eventually she called the number on her debit card to tryto obtain the PIN number. Shaw was told to speak with someone at the bank branch, so she returned to Old Point National Bank on West Queen Street with appellant and his cousin. A te ller told her t o call Bank of Am erica to see if sufficient funds were available to cash the check. She relayed that information to a ppellant, who told her to “just . . . get the check and leave.” She di d so, and suggested that they go to a Bank of America branch, but appellant declined this offe r. Instead, all three went to another Old Point National Bank branch on Executive Drive in Ham pton. There, Shaw was able to deposit the check in a drive-through ATM. After deposi ting the check, Shaw withdrew $ 100, the only amount available to withdraw at th e time. The remaining $1,400 cleare d the bank the next day, at which time Shaw went to the original Old Point National Bank branch o n West Queen Street with- 3 - appellant and his cousin. She withdrew the remaining $1,400 th rough a counter check made out to “cash,” and gave appellant the money. A week or two after depositing the check, Nichole Liedel, a sec urity officer with Old Point National Bank, called Shaw to inform her that there was a stop payment order on the check she had deposited. As a result, Shaw’s account was overdrawn. Liedel told Shaw that unless she repaid the amount deposited, th e bank would contact the police. In January 2012, Shaw began making $40 monthly payments to Ol d Point National Bank. She co ntinued these payments until May 2014. At that point, $535.22 remained to be repaid to the bank. After learning about the stop paym ent order on the check, Shaw tried to contact appellant by leaving him voicemails, but he d id not return her calls. Sh aw did not know where appellant lived. She contacted Cheryl Tucker, whom she believed was appe llant’s aunt, by using the contact information on the chec k. Tucker is not appellant’s au nt, and told Shaw that her house had been broken into and her checks had been stolen. Shaw wentto the police department to file a report, but was informed tha t she could not do anything becau se she did not have appellant’s address or any of his identifying information. In 2014, Shaw saw appellant in he r neighborhood and went back t o the police department to file a report. Appellant was subsequently indicted for obta ining money by false pretenses, in violation of Code § 18.2-178. The indi ctment specifically char ged appellant with “obtain[ing] by false pretense or token, Unite d States Currency, having a va lue of $200.00 or more, belonging to Olivia Shaw, in violati on of [Code] § 18.2-178 of the Code o f Virginia (1950) as amended.” At trial, after the Commonwealth presented its case, appellant moved to strike the evidence. He argued that there w as a fatal variance between th e indictment and the evidence presented by the Commonwea lth, based upon Gardner v. Commonweal th, 262 Va. 18, 546 S.E.2d 686 (2001). Appellant argued that, as in Gardner, the b ank was the victim of the larceny,- 4 - and not Shaw. The Commonwealth a rgued that Gardner was not dis positive because in that case, the person named in the indictme nt was never in possession of t he funds, while Shaw took possession of the money and then transferred it to appellant. Appellant also moved to strike the evidence because Shaw was not a credible witness. The trial court agreed with the C ommonwealth’s interpretation o f Gardner and denied the motion to strike based upon a fat al variance. It also denied t he motion to strike in regard to Shaw’s credibility, finding that the credibility determination was an issue for the finder of fact, the jury. The jury convicte d appellant of obtaining money by f alse pretenses, in violation of Code § 18.2-178. II. ANALYSIS Fatal Variance On appeal, appellant argues thatthe trial court erred in deny ing his motion to strike the evidence because a fatal varian ce existed between the indictmen t and the proof at trial. Appellant asserts that the langua ge of the indictment charged a ppellant with obtaining currency belonging to Shaw, while the Com monwealth’s evidence showed tha t the currency belonged to Old Point National Bank. “An indictment is a written accusation of a crime and is inten ded to inform the accused of the nature and cause of the accu sation against him.” Hairston v. Commonwealth, 2 Va. App. 211, 213, 343 S.E.2d 355, 357 (1986). “A variance occurs when the criminal pleadings differ from the proof at trial.” Purvy v. Commonwealth, 59 Va. App. 2 60, 266, 717 S.E.2d 847, 850 (2011). “[A] variance will be deemed fatal ‘only when the proo f is different from and irrelevant to the crime defined in the indi ctment and is, therefore, insuf ficient to prove the commission of the crime charged.’” Id. at 267, 717 S.E.2d at 850 (quoting St okes v. Commonwealth, 49- 5 - Va. App. 401, 406, 641 S.E.2d 780, 783 (2007)). “In short, the ‘offense as charged must be proved.’” Id. (quoting Mitc hell v. Commonwealth, 141 Va. 541, 560, 127 S.E. 368, 374 (1925)). In support of his argument thatcurrency described in the indi ctment was the property of the bank, and not Shaw, appellant cites the Virginia Supreme Co urt’s decision in Gardner v. Commonwealth, 262 Va. 18, 546 S.E.2d 686 (2001). In Gardner, d efendant, the granddaughter of George Gardner, went to a ba nk branch and “presented to a te ller a withdrawal slip for $725.00 ostensibly signed by George Gardner and stating that ‘L atasha is allowed to receive and sign this [withdrawal slip].’ The teller paid the defendant $7 25.00 in cash.” Id. at 20, 546 S.E.2d at 687 (alteration in origin al). Gardner had neither si gned the withdrawal slip nor given defendant permission to sign his name. Id. Before the bank ch arged the grandfather’s account with the amount of the withdrawal , it learned th at defendant wa s not authorized to make the withdrawal. Id. The grandfathe r’s account “was not debited wi th this seven hundred and twenty-five dollars,” and the bank was “out the money.” Id. D efendant was indicted “for obtaining by false pretenses Unite d States currency of a value greater than $200.00, ‘ the property of George Gardner ,’ with the intent to defra ud him.” Id. at 19, 546 S.E.2d at 6 86 (emphasis added). Defendant argued on appeal that a fatal variance existed betwee n the indictment and the evidence because the Commonweal th pled an offense of larceny by false pretenses from defendant’s grandfather but prove d a different offense of larce ny by false pretenses from the bank. Id. at 20, 546 S.E.2d at 687. The Supreme Court agreed with defendant, acknowledging that “[t]he relationship betwee n a financial i nstitution and it s depositor is that of debtor and creditor. The funds become the pr operty of the bank immediatel y on deposit, and the bank becomes the debtor of the depos itor.” Id. (quoting Bennet v. F irst & Merchs. Nat’l Bank, 233 Va. 355, 360, 355 S.E.2d 888, 890-91 (1987)). The Court held t hat the money withdrawn- 6 - without authorization was the property of the bank, not Gardner . Id. at 25, 546 S.E.2d at 690. Thus, the bank was the victim. I d. This failure to identify t he correct victim, the Court concluded, constituted a fatal variance. Id. Appellant argues Gardner controls in this case, as the evidenc e adduced at trial proved that the currency allegedly obtai ned by false pretense was the property of Old Point National Bank, and not Shaw. Appellant conte nds that the Commonwealth’s evidence in this case showed that appellant allegedly obtai ned currency from Shaw’s bank acc ount through the check drawn on Cheryl Tucker’s account. However, because that check was fr audulent and subject to a stop payment order, Old Point Nati onal Bank did not have the authori ty to advance the funds to Shaw and thus the currency that appe llant allegedly obtained was nev er Shaw’s property. We disagree with appellant’s t heory of possession. The money obtained by false pretense was Shaw’s $1,500 authorized withdrawal from her own account atOld Point National Bank, which she subsequently gave to appellant. When Shaw obtained $ 100 from the ATM and cashed the counter check for $1 ,400, she had possession of the $1,500; it no longer belonged to the bank. See id. at 22, 546 S.E.2d at 688 (explaining that the fu nds were the property of the bank “until the instant the defe ndant obtained ownership through her use of the forged withdrawal slip”). The money was in Shaw’ s possession once she obtained i t from the ATM and cashed the counter check; thus, appellantobtained possession of the moneyfrom Shaw, not the bank, when she gave it to him. The indictme nt, therefore, correctly speci fied that the funds belonged to Shaw. Accordingly, there was no va riance between the language of the indictment and the evidence introduced at trial. In the instant case, unlike Gar dner, the relationship between a depositor and their bank is not at issue, as Shaw obtained money from her own account and t hen gave it to appellant. This was the currency obtained by false pretense. Here, the deposit or/bank relations hip at issue in- 7 - Gardner exists only between Chery l Tucker and Bank of America. However, the transfer of money between them did not provide t he basis for the charge of obtaining money by false pretenses. Rather, the curre ncy obtained by false pretense was the money in Shaw’s possession that she subsequently gave to a ppellant. While Shaw later beli eved she was only able to withdraw these funds as a resu lt of an unauthoriz ed transaction , the actual funds obtained were from Shaw’s bank account that she was ultimately responsible fo r repaying. As such, Shaw was properly named as the victim i n the indictment, and therefore t he trial court did not err in denying the motion to strike on this ground. Sufficiency of the Evidence Appellant also argues that the trial court erred in denying his motion to strike the evidence on the ground that the Co mmonwealth’s evidence was ins ufficient because of the Commonwealth’s reliance on the t estimony of an incredible witne ss. When considering the sufficien cy of the evidence on appeal of acriminal conviction, “we review the evidence in the ‘light most favorable’ to the Common wealth.” Pryor v. Commonwealth, 48 Va. App. 1, 4, 628 S.E.2d 47, 48 (2006) (quoti ng Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003)). “Viewing the re cord through this evidentiary prism requires us to ‘discard the evidence of the accused in co nflict with that of the Commonwealth, and regard as true a ll the credible evidence favo rable to the Commonwealth and all fair inferences to be drawn therefrom.’” Cooper v. Commonw ealth, 54 Va. App. 558, 562, 680 S.E.2d 361, 363 (2009) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis omitted)). “The jury’s verdict will not be disturbed on appeal unless it is plainly wrong or without evi dence to support it.” Clark v. Commonwealth, 30 Va. App. 406, 410, 517 S.E.2d 260, 261 (1999) (quoting Traverso v. Commo nwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988)).- 8 - “Determining the credibility of witnesses . . . is within the e xclusive province of the jury, which has the unique opportunity t o observe the demeanor of the witnesses as they testify.” Lea v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479 (199 3). The “conclusions of the fact finder on issues of witne ss credibility ‘may only be distu rbed on appeal if this Court finds that [the witness’] testimony was “inherently incredible, or so contrary to human experience as to render it unworthy of belief.”’ ” Johnson v. Commonwealth, 58 V a. App. 303, 315, 709 S.E.2d 175, 181 (2011) (alteration in original ) (quoting Robertson v. Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417, 419 (1991)). “To be ‘incredible,’ testimo ny ‘must be either so manifestly false that reasonable men ought not to believe it, or it must b e shown to be false by objects or things as to the existence a nd meaning of which reasonable men should not differ.’” Juniper v. Commonwealth, 271 Va. 362, 415, 626 S.E.2d 383, 417 (2006) (quo ting Cardwell v. Commonwealth, 209 Va. 412, 414, 164 S.E.2d 699, 701 (1968)). Appellant contends that Shaw was an inherently incredible witne ss because she requested a counter check drawn on her account, instead of simply withdrawing the remaining $1,400. Further, Shaw agreed to pay b ack the funds to her bank. These actions, according to appellant, were only reasonable if Shaw kne w she was passing a bad check. Here, Shaw testified before the j ury as to the circumstances su rrounding her cashing of a check from the account of Cheryl Tucker and subsequent withdraw al of funds from her own account. While appellant claims that Shaw’s testimony was inhe rently incredible because her story was a fabrication to conceal guilt, the jury as fact find er credited her testimony. On appeal, we cannot say that it was unreas onable for the jury to believe Shaw’s account. It is important to note that “[t]he living record c ontains many guideposts to the truth which are not in the printed record,” and an appellate court , not having the benefit of thes e guideposts, “should give great weight to the conclusions of those who have seen and heard them .” Bradley v. Commonwealth,- 9 - 196 Va. 1126, 1136, 86 S.E.2d 828, 834 (1955). Giving such wei ght to the jury’s credibility determination, we hold that Sh aw’s testimony was not inherentlyincredible or so contrary to human experience as to render it unworthy of belief. Consequen tly, the trial court did not err in denying appellant’s moti on to strike on this ground. III. CONCLUSION We hold that the trial court did not err in finding no fatal v ariance between the indictment and the evidence adduced at tria l. Further, as Shaw’s testimon y was not inherently incredible, the evidence was sufficient t o convict appellant of obtaining m oney by false pretenses. Accordingly, we affirm appellant’s conviction. Affirmed.