                   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


                              - 4 -
§§ 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


                                   - 5 -
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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