COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Clements and Beales 

Argued at Richmond, Virginia 

SHEILA MICHELLE STOKES 

 OPINION BY 

v. Record No. 1179-05-2 JUDGE RANDOLPH A. BEALES 

 MARCH 13, 2007 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY 

Thomas V. Warren, Judge 

 T. L. Marsh for appellant. 

 Benjamin H. Katz, Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

 Sheila Michelle Stokes (appellant) appeals from her conviction of grand larceny under 

Code § 18.2-95.1

 She contends a fatal variance exists between the allegations of the indictment 

and the evidence introduced at trial. Appellant also asserts that the trial court erred in admitting 

affidavits of forgery under the business records exception to the hearsay rule and also in 

admitting withdrawal slips without a proper foundation. Finally, she challenges the sufficiency 

of the evidence. For the following reasons, we affirm the conviction. 

STANDARD OF REVIEW

 On appeal, we examine the evidence in the light most 

favorable to the Commonwealth. That principle requires us to 

discard the evidence of the accused in conflict with that of the 

Commonwealth and to regard as true all the credible evidence 

 1

 Code § 18.2-95 reads, in pertinent part, “Any person who . . . (ii) commits simple 

larceny not from the person of another of goods and chattels of the value of $200 or more . . . 

shall be guilty of grand larceny . . . .” 
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favorable to the Commonwealth and all fair inferences that may be 

drawn therefrom. 

Guda v. Commonwealth, 42 Va. App. 453, 455, 592 S.E.2d 748, 749 (2004) (citation omitted). 

BACKGROUND

Applying that standard, the evidence shows that appellant made three withdrawals, one 

on February 18, 2004 for $1,000, one on February 19, 2004 for $1,800, and one on February 20, 

2004 for $144, from a savings account at Citizens Bank and Trust. The savings account 

belonged solely to William Tucker, for whom appellant had previously performed home cleaning 

services.2 According to bank records, no one else was authorized to conduct transactions on that 

account. 

A teller from the bank, Crystal Jennings, identified appellant as the individual who 

presented her with withdrawal slips on February 19th ($1,800) and February 20th ($144). 

Jennings gave appellant the amount requested on each occasion. These two withdrawal slips 

bore the signature “Annie Jones.” The other withdrawal slip, which was presented on February 

18th for $1,000, bore appellant’s own signature. 

 Nearly a week later, Cindy Moore, the vice-president of Citizens Bank and Trust, met 

with Mr. Tucker and had him fill out “affidavits of forgery.” She explained that the bank 

normally used these forms to investigate fraudulent transactions. Moore recalled that the bank 

debited Tucker’s account on the same days as the transaction but credited the money back a 

week later after Tucker had completed the affidavits of forgery. Therefore, as she testified, 

“Citizens Bank and Trust lost the money.” 

 Appellant essentially confessed to the crime. She admitted to police that she picked up 

the savings book from a table in Tucker’s residence. She also told police that she knew she 

 2

 Tucker had passed away by the time of appellant’s trial. 
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shouldn’t have taken it and that the book was destroyed after the transactions. Appellant told 

police that she and her daughter, Annie Jones, had used the money to buy drugs and alcohol. 

Police, despite confirming that appellant had a daughter, were unable to locate anyone by that 

name. 

 Appellant was indicted, pursuant to Code § 18.2-95, for “steal[ing] cash in the amount of 

$2,944.00 belonging to Citizens Bank & Trust Company.” The trial court found appellant guilty 

of grand larceny. Appellant filed a motion to set aside the verdict, which the trial court 

subsequently denied. This appeal followed. 

ANALYSIS

I. FATAL VARIANCE

 Appellant contends that the language “belonging to Citizens Bank & Trust Company” 

created a fatal variance between the allegations of the indictment and the proof of the crime. As 

this Court held in Traish v. Commonwealth, 36 Va. App. 114, 549 S.E.2d 5 (2001): 

It is true that a variance between the allegations of an indictment 

and proof of the crime may be “fatal,” and “the offense as charged 

must be proved.” A variance is fatal, however, only when the proof 

is different from and irrelevant to the crime defined in the 

indictment and is, therefore, insufficient to prove the commission 

of the crime charged. 

36 Va. App. at 134-35, 549 S.E.2d at 15 (quoting Hawks v. Commonwealth, 228 Va. 244, 247, 

321 S.E.2d 650, 651-52 (1984)). 

Appellant argues that the Virginia Supreme Court’s decision in Gardner v. 

Commonwealth, 262 Va. 18, 546 S.E.2d 686 (2001), controls this issue and, accordingly, 

requires this Court to reverse her conviction. In Gardner, the defendant was indicted “for 

obtaining by false pretenses United States currency of a value greater than $200.00, ‘the property 

of George Gardner,’ with the intent to defraud him.” Id. at 19, 546 S.E.2d at 686 (emphasis 

added). The evidence in that case proved, “Before the bank charged the grandfather’s account 
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with the amount of the withdrawal, it learned that the defendant was not authorized to make the 

withdrawal. The grandfather’s account ‘was not debited with this seven hundred and twenty-five 

dollars,’ and the bank was ‘out the money.’” Id. at 20, 546 S.E.2d at 687. There, the Court held: 

When the Commonwealth added the phrase “the property of 

George Gardner” to the indictment, it described, limited, and 

qualified what was necessary to be alleged, and the added language 

cannot, therefore, be treated as surplusage. . . . Here, when the 

Commonwealth alleged in the indictment that the money obtained 

by the defendant was the property of George Gardner but the 

evidence showed the money was the property of the bank, it 

proved a different offense, resulting in a fatal variance. 

Id. at 24-25, 546 S.E.2d 689-90. 

 In Central Nat’l Bank v. First & Merchants Nat’l Bank, 171 Va. 289, 198 S.E. 883 

(1938), the Virginia Supreme Court discussed the relationship between a bank and its depositor. 

There, the Court held: 

The general rule is conceded that a depositor’s funds in a bank are 

unaffected by any unauthorized payment. If a bank pays out 

money to the holder of a check, upon which the name of its 

depositor is forged, it is simply no payment as between the bank 

and the depositor; the account between the bank and the depositor 

and the legal liability of the bank remain just the same as if the 

pretended payment had not been made. The pretended payment 

does not diminish the funds of the depositor. 

Id. at 303, 198 S.E. at 888. Therefore, where a fraudulent transaction has occurred, that 

transaction does not affect the depositor because the bank did not possess the authority to 

disperse the funds from that depositor’s account. As the Supreme Court noted, “The authorities 

are in unequivocal and unanimous agreement that a bank, in paying a forged check, must be 

considered as making the payment out of its own funds. In the payment by a bank of a forged 
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check, it acts at its own peril, and not that of the depositor.” Id. at 304, 198 S.E. at 889. Stated 

another way, it is as if the transaction never occurred as between the depositor and the bank.3

 

 The Virginia Supreme Court’s holding in Gardner is entirely consistent with the Court’s 

ruling in Central Nat’l Bank. In Gardner, the indictment alleged that the stolen funds belonged 

to George Gardner. As Central Nat’l Bank makes clear, a bank does not possess the authority to 

advance funds to a defendant when that defendant is not an authorized signer on the account. 

Under this principle, the bank in Gardner was responsible for the loss and accepted that 

responsibility. Therefore, the bank was the victim of the larceny, and as the Court noted, the 

evidence did not prove that George Gardner was the victim of the crime as alleged in the 

indictment. Gardner, 262 Va. at 25, 546 S.E.2d at 690. 

In Gardner, the indictment incorrectly stated the larceny occurred from George Gardner, 

whose account was never debited. Here, the indictment states that the larceny was from the 

bank, whose funds were indeed debited, once the bank determined that Mr. Tucker’s account had 

been improperly debited and then credited the funds back to his account, in accordance with the 

requirements of Central Nat’l Bank. Appellant argues, then, that Gardner stands for the 

proposition that once a depositor’s account is debited, the funds automatically belong to the 

depositor for purposes of alleging ownership in an indictment. We disagree with this argument, 

as it requires this Court to ignore modern banking practice and the debtor/creditor relationship 

discussed in Central Nat’l Bank. At present, a bank generally would debit the depositor’s 

account when it pays the person presenting the forged check. The bank then must correct the 

unauthorized withdrawal of funds by debiting its own funds and crediting the depositor’s account 

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 This analysis assumes that the bank has agreed that the transaction was fraudulent and 

credited the amount of the transaction back to the depositor’s account. If the bank had not 

credited Mr. Tucker’s account, this case would present a significantly different set of facts than 

is currently before us. Therefore, we decline to comment on the appropriate indictment language 

where a bank has not debited its own account by the time of the indictment. 
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to fully make it whole. That is what happened here. Appellant’s argument would extend the 

holding in Gardner to an absurd result. 

Here, the bank, just as in Gardner, owned the money and was the victim of the larceny, 

given the bank’s obligation under Central Nat’l Bank. The indictment, therefore, correctly 

specified that the funds belonged to Citizens Bank and Trust. Accordingly, the Commonwealth 

did not prove a separate crime as it did in Gardner, and there was no variance between the 

language of the indictment and the evidence introduced at trial. 

B. BUSINESS RECORDS EXCEPTION

 Appellant contends that the trial court erred in admitting the affidavits of forgery under 

the business records exception to the hearsay rule. Specifically, appellant argues, “[t]here was 

no evidence of the bank’s participation in the creation of those affidavits.” 

The Virginia Supreme Court recently discussed the business records exception in 1924 

Leonard Rd., L.L.C. v. Van Roekel, 272 Va. 543, 554-55, 636 S.E.2d 378, 385 (2006): 

In Virginia, the business records exception to the hearsay rule, also 

referred to as the “modern shop book rule,” permits the admission 

of verified regular entries of a business provided that such 

evidence has a direct or circumstantial guarantee of 

trustworthiness. We have further explained that the 

trustworthiness or reliability of such records is guaranteed by the 

fact that they are regularly prepared and relied on in the conduct of 

business by the persons or entities for which the records are kept. 

Therefore, to be admissible as a business record, a document must 

be produced by its proper custodian, be a record kept in the 

ordinary course of business, and be made at the time of an event by 

a person having a duty to keep a true record of that event. 

(Citations omitted). 

 Here, Citizens Bank and Trust Vice President Cynthia Moore testified that the affidavit of 

forgery is a bank form that is routinely made and kept by the bank when a depositor complains of 

an unauthorized withdrawal. Moore assisted Tucker in filling out these forms for each of the 

three fraudulent transactions on his account. Therefore, contrary to appellant’s assertion, the 
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affidavits of forgery were made in the regular course of bank business and were, accordingly, 

properly admitted under the business records exception to the hearsay rule. 

C. ADMISSION OF THE WITHDRAWAL SLIPS

 Appellant contends the trial court erred in admitting copies of the withdrawal slips 

without a proper foundation. She cites no authority for this assertion. “‘Statements unsupported 

by argument, authority, or citations to the record do not merit appellate consideration.’” Epps v. 

Commonwealth, 47 Va. App. 687, 718, 626 S.E.2d 912, 926-27 (2006) (en banc) (quoting 

Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992)). See Rule 5A:20. 

Therefore, we decline to address this contention. 

D. SUFFICIENCY OF THE EVIDENCE

 “‘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.’” Brown v. Commonwealth, 30 Va. App. 243, 251, 516 S.E.2d 678, 682 

(1999) (quoting Wynne v. Commonwealth, 18 Va. App. 459, 460, 445 S.E.2d 160, 161 (1994) 

(en banc)). 

 Here, the evidence, taken in the light most favorable to the Commonwealth, see Guda, 42 

Va. App. at 455, 592 S.E.2d at 749, demonstrates that appellant, through her own admission, 

took a savings withdrawal book from the residence of Mr. Tucker. Appellant on three separate 

occasions presented forged withdrawal slips from Tucker’s savings book, once signed with her 

own name and twice signed with the name, “Annie Jones,” to a teller at Citizens Bank and Trust. 

On each occasion, appellant received in cash the amount written on the withdrawal slip. Tucker, 

upon learning of the fraudulent transactions, met with Cynthia Moore, and assisted her in 

completing affidavits of forgery for the transactions. After filling out these forms, the bank 
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credited the amount given to appellant back into Tucker’s account, taking the funds from the 

bank’s funds. In response to questions from the investigating police officer, appellant admitted 

that she and her daughter, Annie Jones, had used the money to buy drugs and alcohol. 

Therefore, we hold that a rational trier of fact could reasonably conclude, based on the above 

facts, that appellant committed grand larceny in violation of Code § 18.2-95. 

CONCLUSION

 For the foregoing reasons, we affirm the judgment of the trial court and appellant’s 

conviction for grand larceny. 

Affirmed.