Gardner v. Com.

• Decision Date: 08 June 2001
• Docket Number: Record No. 002143.
• Citation: 546 S.E.2d 686,262 Va. 18
• Parties: Latasha GARDNER, s/k/a Latasha Alon Gardner v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

546 S.E.2d 686

262 Va. 18

Latasha GARDNER, s/k/a Latasha Alon Gardner v. COMMONWEALTH of Virginia.

Record No. 002143.

Supreme Court of Virginia.

June 8, 2001.

Norman Hunter Lamson, Charlottesville, for appellant.

Amy L. Marshall, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: All the Justices.

CARRICO, Chief Justice.

On December 21, 1998, a grand jury in the Circuit Court of the City of Charlottesville indicted the defendant, Latasha Alon Gardner, 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. Code § 18.2-178.¹ The trial court, sitting without a jury, convicted the defendant of the charge and sentenced her to serve three years in the penitentiary. The Court of Appeals affirmed the conviction. Gardner v. Commonwealth, 32 Va.App. 595, 529 S.E.2d 820 (2000). We awarded the defendant this appeal to consider the question whether a fatal variance exists between the indictment's allegation that the money was the property of George Gardner and evidence which, according to the defendant, shows that the money was the property of the bank from which it was obtained.

The defendant is the granddaughter of George Gardner. He maintained a savings account at a Charlottesville branch of Wachovia Bank. On May 1, 1998, the defendant went to the branch and presented to a teller a withdrawal slip for $725.00 ostensibly signed by George Gardner and stating that "Latasha is allowed to receive and sign this [withdrawal slip]." The teller paid the defendant $725.00 in cash.

In fact, George Gardner had not signed the withdrawal slip, and he had not given the defendant permission to sign his name. When arrested on a warrant charging her with obtaining the money by false pretenses, the defendant admitted she had signed her grandfather's name to the withdrawal slip, but insisted she had signed it with his permission.

Before the bank charged the grandfather's account 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."

The defendant argues on appeal that because the Commonwealth pled an offense of larceny by false pretenses from the defendant's grandfather but proved a different offense of larceny by false pretenses from a bank, there was a fatal variance. Quoting Bennet v. First & Merchants Nat'l Bank, 233 Va. 355, 355 S.E.2d 888 (1987), the defendant states as follows:

The relationship between a financial institution and its depositor is that of debtor and creditor. The funds become the property of the bank immediately on deposit, and the bank becomes the debtor of the depositor.

Id. at 360, 355 S.E.2d at 890-91. See also Bernardini v. Central Nat'l Bank, 223 Va. 519, 521, 290 S.E.2d 863, 864 (1982)

; Federal Reserve Bank v. State & City Bank & Trust Co., 150 Va. 423, 430-31, 143 S.E. 697, 699 (1928). In this relationship, the defendant says, the bank never promises to return any specific pieces of paper constituting United States currency but only promises to return an equivalent amount to the depositor. And, the defendant continues, citing Central Nat'l Bank v. First & Merchants Nat'l Bank, 171 Va. 289, 303, 198 S.E. 883, 888 (1938), the bank has no right to debit the depositor's account based upon an unauthorized withdrawal. It is plain, therefore, the defendant maintains, that there was a variance between the pleading and the proof in this case and that the variance was fatal.

The Commonwealth acknowledges the rule stated in Bennet that "a depositor's `funds become the property of the bank immediately on deposit, and the bank becomes] the debtor of the depositor.'" The Commonwealth also acknowledges the rule stated in Central Nat'l Bank that "`a depositor's funds in a bank are unaffected by any unauthorized payment.'" The Commonwealth argues, however, that these cases only "delineate the contractual relationship between a bank and its depositor" and "do not require a finding in this case that the bank can be the only victim."

The Commonwealth says that it "need only prove the victim alleged in the indictment has a legal interest in the property stolen." The Commonwealth cites Latham v. Commonwealth, 184 Va. 934, 940, 37 S.E.2d 36, 38-39 (1946), and Catterton v. Commonwealth, 23 Va.App. 407, 410-11, 477 S.E.2d 748, 750 (1996), in support. Both cases are inapposite. They stand for the proposition that for purposes of proving larceny, ownership may be laid either in the true owner or in a bailee. However, a general deposit in a bank is "not a bailment." Pendleton v. Commonwealth, 110 Va. 229, 234, 65 S.E. 536, 538 (1909).

The Commonwealth cites several other cases: United States v. Mitchell, 625 F.2d 158 (7th Cir.1980); United States v. Pavloski, 574 F.2d 933 (7th Cir.1978); Quidley v. Commonwealth, 221 Va. 963, 275 S.E.2d 622 (1981); and Bateman v. Commonwealth, 205 Va. 595, 139 S.E.2d 102 (1964). All are inapposite.

Mitchell involved a prosecution under 18 U.S.C. § 641, which proscribes the conversion of money or a thing of value of the United States. The defendant was charged with attempting to convert a stolen Illinois Public Aid warrant. He claimed that the warrant was not money or a thing of value of the United States within the meaning of § 641. However, approximately 50% of the money in the account on which the warrant was drawn was granted to the state by the federal government, the relevant statute and regulations contemplate that ultimate repayment would be made to the federal government, and while the money was in state hands it was subject to substantial federal supervision and control. Hence, "the warrant retained by the [defendant] with the intent to convert it to his own use was a `thing of value of the United States.'" 625 F.2d at 161. We fail to see how the decision in Mitchell would support a finding here that the grandfather, and not the bank, was the owner of the money the defendant fraudulently withdrew.

Pavloski involved a union treasurer who forged the name of the union president on checks Pavloski presented to the bank for payment. The bank honored the checks, paid Pavloski, and debited the union's account. Pavloski said the forgeries did not constitute embezzling union funds but rather conversion of funds of the bank. He relied on the commercial law doctrine that a drawee bank pays its own funds, not those of the depositor, when it honors a forged check. The court disagreed, stating that union funds were converted to Pavloski's use when the bank debited the account of the union and that the fact "these reductions in funds were temporary would not exonerate Pavloski from liability." 574 F.2d at 936. Here, however, as has been noted, the bank did not debit the grandfather's account with the amount the defendant obtained with the forged withdrawal slip.

In Quidley, the accused, an employee of the Norfolk Social Service Bureau, using a forged purchase order, obtained various items of clothing from J.C. Penney Company, ostensibly for a welfare recipient, and converted the goods to her own use. The Penney Company ultimately received full payment for the clothing from the City of Norfolk Public Assistance Fund. Indicted for obtaining clothing belonging to J.C. Penney Company by false pretenses and convicted of the offense, the accused claimed that a fatal variance existed between the indictment and the proof because the evidence showed the Penney Company received payment for the goods and the property, therefore, was defrauded from the social service bureau or the welfare recipient. We disagreed. We said that the offense was complete at the instant the accused obtained ownership of the goods through use of the fraudulent documents and that it was irrelevant that the Penney Company suffered no loss. 221 Va. at 966, 275 S.E.2d at 625. Of course, until the instant the accused obtained the goods, they remained in the ownership of the Penney Company, just as the money involved in this case remained in the ownership of the bank until the instant the defendant obtained ownership through her use of the forged withdrawal slip. And, just as the Penney Company was the obvious victim of the fraud in Quidley, the bank is the obvious victim of the fraud here.

In Bateman, the accused raised the amounts of several checks after they were drawn by his friend, Jerry H. Adams, and cashed the checks in the raised amounts at the drawee bank. The accused was tried on separate counts alleging he obtained money by false pretenses from the drawer of the checks and from the bank that cashed the checks. He was found guilty on the counts involving the drawer of the checks and not guilty on the counts involving the bank. However, no argument was made in the case that the accused could not be convicted of obtaining the money of Adams by false pretenses because the money was the property of the bank. Furthermore, we said that "[t]he fraud was practiced on Adams" because the bank, when it cashed the checks, "paid out the money from the account of Adams deposited in the bank." 205 Va. at 600,139 S.E.2d at 106. In other words, unlike the situation here, the bank debited Adams' account with the amounts of the forged checks.

Finally, the Commonwealth cites Code § 19.2484² as standing for the proposition that "when the charge is a larceny offense, as long as the alleged victim of the offense as stated in the indictment has an interest in the property, a conviction is sustainable." The Commonwealth then states: "Here, even though for contract purposes the defendant's grandfather's funds became property of the bank, he still retained a legal interest in those funds as creditor; the money had to be paid to him on demand. Fed'l Reserve Bank v. State & City Bank & Trust Co., 150 Va. 423, 430, 143 S.E....