COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
LATASHA GARDNER, S/K/A
LATASHA ALON GARDNER
OPINION BY
v. Record No. 1924-99-2 JUDGE JAMES W. BENTON, JR.
JUNE 20, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
F. Ward Harkrader, Jr., Judge
Norman H. Lamson for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial judge convicted Latasha Alon Gardner of
fraudulently obtaining money by false pretenses. See Code
§ 18.2-178. Gardner contends the record establishes a fatal
variance between the indictment, which charged she obtained her
grandfather's money, and the evidence, which she alleges proved
she obtained a bank's money. For the reasons that follow, we
affirm the conviction.
I.
The grand jury's indictment charged that "Gardner did
feloniously and fraudulently obtain, by false pretense . . . ,
United States currency of a value greater than $200.00, the
property of George Gardner[, her grandfather], with the intent to
defraud him . . . [in violation of Code §] 18.2-178." At trial,
the evidence proved that Gardner's grandfather maintained a
savings account at Wachovia Bank. On May 1, 1998, Gardner
appeared at the bank and presented to a teller a withdrawal slip
for $725 from her grandfather's account. The teller informed her
that "there was a block put on this account." One-half hour
later, Gardner returned to the bank with the same withdrawal
slip, which contained additional writings, including the notation
that "Latasha is allowed to receive and sign this [withdrawal
slip]." The withdrawal slip contained the writing "George
Gardner, Sr." and the account number. The teller accepted the
withdrawal slip, processed the transaction, and gave Gardner
$725.
A detective testified that several weeks after the
withdrawal, Gardner admitted she signed her grandfather's name on
the deposit slip. She explained that her grandfather had
authorized her to do so. Gardner's grandfather testified,
however, that he did not authorize Gardner to withdraw money from
his bank account. He also testified that the handwriting of his
name on the withdrawal slip was not his signature.
A manager employed by the bank testified that the withdrawal
slip was "drawn on the account of [Gardner's grandfather]." He
further testified that "before [the funds were] actually taken
off of [Gardner's grandfather's] account," the bank learned
Gardner was not authorized to obtain the funds. The bank
referred the investigation of the unauthorized withdrawal to the
branch office where the transaction occurred and did not debit
Gardner's grandfather's account.
At the conclusion of the evidence, Gardner's attorney made a
motion to strike the evidence, alleging that the evidence proved
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the money belonged to the bank, not to Gardner's grandfather.
The trial judge denied the motion and convicted Gardner of the
offense charged in the indictment. This appeal followed.
II.
In pertinent part, Code § 18.2-178 provides as follows:
If any person obtain, by any false pretense
. . . , from any person, with intent to
defraud, money or other property which may
be the subject of larceny, he shall be
deemed guilty of larceny thereof . . . .
This statute requires the Commonwealth to prove the following
elements: "an intent to defraud, an actual fraud, use of false
pretenses for the purpose of perpetrating the fraud, and
accomplishment of the fraud by means of the false pretenses used
for that purpose." Quidley v. Commonwealth, 221 Va. 963, 965,
275 S.E.2d 622, 624 (1981). The evidence in this record clearly
proved each of those elements beyond a reasonable doubt.
Gardner contends, however, that a fatal variance exists
between the indictment and the evidence because the victim of her
conduct was the bank and not her grandfather. She relies upon
principles stated in Bennet v. First & Merchants Nat'l Bank, 233
Va. 355, 360, 355 S.E.2d 888, 891 (1987) (noting that a
depositor's "funds become the property of the bank immediately on
deposit, and the bank becomes the debtor of the depositor"), and
Central Nat'l Bank v. First and Merchants Nat'l Bank of Richmond,
171 Va. 289, 303, 198 S.E. 883, 888 (1938) (stating "[t]he
general rule . . . that a depositor's funds in a bank are
unaffected by any unauthorized payment"). We hold that the proof
established the elements of the offense as they pertain to her
grandfather's account.
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Rejecting an appellant's contention in Quidley that "a fatal
variance" existed, the Supreme Court reasoned as follows:
[T]here is no [statutory] requirement that
the intended victim suffer actual pecuniary
loss. Ultimate financial gain or loss to
the victim is immaterial.
The crime is complete when the fraud
intended is consummated by obtaining the
property sought by means of the false
representations, and the offense is not
purged by ultimate restoration or payment to
the victim. It is sufficient if the fraud
of the accused has put the victim in such a
position that he may eventually suffer loss.
221 Va. at 966, 275 S.E.2d at 625 (citations omitted).
The evidence proved that Gardner gave a teller a withdrawal
slip, containing false and forged information, to obtain money
from her grandfather's account on deposit at the bank. When the
bank paid money to Gardner pursuant to the tenor of the
withdrawal slip, the bank provisionally accepted the withdrawal
slip as a debit transaction for Gardner's grandfather's account.
Although the bank did not complete the process of posting the
debit transaction to the account after the bank learned of the
fraud, see Code § 8.4-213(1)(C), the evidence clearly established
that Gardner used her grandfather's name and account number as
the means to obtain the cash withdrawal.
The general principles stated in Bennet and Central National
Bank do not control the resolution of this issue. We recognize
that the Uniform Commercial Code significantly defines the
relationship between a drawee bank and its account customers and
provides remedies as between a drawee bank and its account
customers for the payment of forged instruments. See Code
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§§ 8.4-401 through 8.4-407. The issue presented here, however,
is not the abstract nature of the bank's underlying civil
liability to Gardner's grandfather. Rather, the issue is the
nature of the transaction Gardner engaged in when she made the
withdrawal. In that transaction, Gardner intended to withdraw
funds her grandfather placed on deposit with the bank. In
honoring the withdrawal slip, the bank paid cash to Gardner upon
its provisional determination that the transaction was
authorized. Resolving an analogous issue, the Court in United
States v. Pavloski, 574 F.2d 933 (7th Cir. 1978), ruled as
follows:
In arguing that the check forging
activities did not constitute embezzling or
converting moneys and funds of the union,
[the appellant] relies on the commercial law
doctrine that a drawee bank pays its own
funds, not those of its depositor, when it
honors a forged check. Because of this
doctrine, he argues, in legal effect he did
not embezzle the union's funds, but rather
converted funds of the bank.
* * * * * * *
[However], "funds" of the union were
converted to the use of [appellant] when the
bank debited the account of the union, as it
did when each forged check was honored.
That these reductions in funds were
temporary would not exonerate [appellant]
from liability . . . .
Id. at 935-36.
When Gardner "obtained [the money] . . . through use of the
fraudulent [withdrawal slip], the crime charged was complete at
that instant." Quidley, 221 Va. at 966, 275 S.E.2d at 625. At
the moment the transaction occurred, the bank honored a demand to
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pay funds held for the account of Gardner's grandfather. The
bank's later discovery of the forgery and its decision not to
debit Gardner's grandfather's account do not provide a basis to
conclude that the transaction, when it occurred, was unrelated to
Gardner's grandfather's account.
For these reasons, we hold that no variance existed between
the indictment and the proof. Accordingly, we affirm the
judgment of conviction.
Affirmed.
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