COURT OF APPEALS OF VIRGINIA

Present: Judg es 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. Dohe rty, Jr., Judge Harry W. Brown for appellant. Shelly R. James, As sistant Attorn ey General (Mark L. Earley, Attorney General; Robert H. Anderson, III, Assistant Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Calvin Lee Miller wa s convicted in a benc h trial of obtaining property by fals e pretenses in violation of Code § 18.2-178. On appeal, Miller contends that the trial court erred in permitting the Commonwealth to amend the indi ctment and that the evidence was insufficient to support the co nviction. For the following reasons, we affirm the conviction. BACKGROUND On January 26, 1998, Miller purchased a la ptop computer from Computer Renaissance, Inc., a computer store owned and op erated by John Callan Garst. The computer, va lued at approx imately $650,- 2 - was purchased with a check. Gars t did not sell th e computer to Miller or otherw ise participate in the transaction, but he stood fifteen to twenty feet from the sale sperson who sold Miller the computer. Although Ga rst did not see the check that Miller gave to the salesperso n, the check that was re turned from the bank corresponded to the check that was recorded in the point of sale cash register system. Shortl y after Miller purchased the computer, the bank upon which the check had been drawn notified Garst that the check wo uld be dishonored be cause the ac count did not exist. Ga rst telephoned Mill er on more than one occasion to discuss payment for the computer . Garst also sent Miller a certified letter requesting payment. Ga rst testified that Miller acknowledged passing th e check and that he would "mak e 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.- 3 - Here, the origin al indictment charged th at Miller "unlawfully and feloniousl y, with intent to defraud, obta in[ed] money or personal property in th e amount of $200 or more by false pretenses from John Callan Garst, with the intent to de fraud." At the close of the Commonweal th's case, Miller moved to strike the evidence arguing, inter alia , that the indictment al leged that the victim was Garst rather than Computer Renaissanc e, Inc., the party to whom the check was made. The trial co urt permitted the Commonwealth to amend the indictme nt to reflect th at the victim was Computer Renaissance, Inc. Miller , however, failed to object to the trial court's ru ling allowing the Comm onwealth to amend the indictment. Further, Miller did not argue that he should be rearraigned, and he di d not request a continuance. We will not consider for the first time on appeal an is sue not pres erved in the trial court. See Rule 5A:18. Sufficiency of the Evidence Miller argues that the evidence was insu fficient to support his conviction because Garst' s testimony wa s "inherently unbelievable." He argues that Garst did not have an independent recollection of the transaction an d that during qu estioning Garst exhibited some confusio n regarding the details of the transaction. On review of a chal lenge to the sufficie ncy of the evidence, we view the evidence in the light most favorable to the Commonwealth and grant to it al l reasonable infe rences fairly- 4 - deducible th erefrom. 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 evid ence are matters solely for the fact finder wh o has the opport unity 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) (citatio ns omitted). "The judgment of a tr ial court sittin g 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 eviden ce to supp ort it." Beck v. Co mmonwealth , 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 obtainme nt of owners hip of property, by false representati ons 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 favorabl e to the Commonwealth demonstrates that Miller purchased a lapt op computer valued in excess of $200 from Computer Renaissance, Inc. with a check he- 5 - 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 th e computer. Mi ller, however, neither paid for the computer , nor did he return it. In order for a witn ess' testimony to be disregarded as a matter of law, the evid ence must be inherent ly incredible or the witness' account of th e 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 acknowle dged on cross- examination that he was not absolutely clear on al l of the details of th e transactio n and that he did not person ally assist in the tran saction, Garst's account of the events was not inherently incredible and the trial court was entitled to weigh this evidence in determin ing Garst's credibility and Mi ller's guilt. See Sandoval , 20 Va. App. at 138, 455 S.E.2d at 73 2. Accordingly, the evid ence was sufficient to support Miller's conviction for obtain ing property by false pretenses in violation of Code § 18.2-178. Thus, we affirm the tr ial court's ju dgment. Affirmed.