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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