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. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 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, 
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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.