State v. Harris

913 S.W.2d 348, 1995 Mo. App. LEXIS 1966, 1995 WL 698852
Missouri Court of Appeals·Decided November 28, 1995·No. No. 67075·Published·Cited by 3 cases

Opinion

RHODES RUSSELL, Judge.

Joane M. Harris (“Defendant”) appeals the judgment following her conviction by the court of eight counts of passing bad checks in violation of § 570.120 RSMo Cum.Supp.1991.1 Defendant was sentenced to two years on each count, with the first four counts to be served concurrently and the remaining four counts to run consecutively. Execution of the sentence was suspended, and Defendant was placed on probation and ordered to make restitution in the amount of $72,643.51. We affirm.

The standard of review for a court-tried criminal case is the same as for a jury-tried criminal case. State v. Kreyling, 890 S.W.2d 414, 416 (Mo.App.1995). We review the record to see whether sufficient evidence exists from which the trial court could have returned a guilty verdict. Id. In so doing, we accept all evidence and inferences favorable to the guilty verdict and ignore all contrary evidence and inferences. Id.

Viewing the evidence in the proper light, the evidence establishes the following. Defendant, through her corporation J.M. Harris, Inc., owned and operated a truck stop and three service stations in different cities. She regularly did business with United Oil Company, a wholesale petroleum and automotive business. Their business relationship started on August 21, 1991. Beginning in the summer of 1992, Defendant’s payments to United Oil were untimely or failed to arrive at all. Defendant blamed the delay on the postal system. United Oil and Defendant then made an agreement wherein Defendant would hand-deliver all payments. Defendant would make out individual checks to cover each invoice, some of which were postdated. The number of checks varied each delivery from five to twelve checks.

On June 9, 1992, Defendant opened an account for J.M. Harris, Inc. with First Security State Bank. Joane M. Harris was the only person’s name on the signature card. Defendant and the bank would customarily communicate with each other about the sufficiency of the account’s balance to adequately cover the daily supply of checks delivered for payment. These conversations ceased in August 1992. At that point, the cashier at the bank received no calls from Defendant and was unable to contact Defendant through normal channels.

During the month of August 1992 Defendant wrote many checks to United Oil, only eight of which were the basis of her conviction. Five of those checks were dated August 20,1992 and were made out for amounts of $7,415.51, $3,718.52, $3,758.82, $6,897.14 and $3,543.65, respectively, for a total of $25,333.64. These checks were deposited, according to bank records, that same day. These five checks were presented to First Security State Bank for payment on two occasions and were dishonored for insufficient funds. At the start of the business day on August 20, 1992, Defendant’s account had a balance of $1,885.88, and closed with an ending balance of $1,098.34.

The other three checks were dated August 27,1992 and were made out to United Oil for $7,006.07, $6,983.89 and $7,670.63, respectively, for a total of $21,660.59. These checks were deposited that same day and, likewise, were dishonored by the bank after two attempts for insufficient funds. On August 27, 1992, Defendant’s account had a beginning balance of $ — 25.34 and an ending balance of $2,309.84.

The state also submitted evidence of at least six other checks issued by Defendant and dishonored by the bank after two tries for insufficient funds. Defendant was not charged with passing these bad checks and does not challenge the admissibility of the checks on appeal.

The matter was then turned over to the Cape Girardeau County Prosecutor, who sent a notice to Defendant notifying her of the bad checks and informing her that if she did not make restitution she would be prosecuted and that nonpayment within ten days of receipt of notice would serve as evidence of Defendant’s intent to defraud. No restitu[350]*350tion was made and Defendant was prosecuted in an eight count indictment. From her conviction by the court Defendant appeals.

In her first point, Defendant claims there was insufficient evidence to support her conviction of passing bad checks. Defendant argues there was no evidence that she had the purpose or intent to defraud at the time she delivered the checks to United Oil. The necessary intent to defraud was lacking, asserts Defendant, because the checks delivered to United Oil were postdated and, though admitting she did not have sufficient funds to cover the amount of the checks at the time delivered, she did intend to have the appropriate funds at the time the checks were offered to First Security State Bank.

To secure a conviction under § 570.120, the state must establish that the defendant passed a bad check with intent to defraud. § 570.120.1. Intent to defraud is determined as of the time the check is issued. State v. Warren, 628 S.W.2d 410, 412 (Mo.App.1982). This subjective intent is generally proven by circumstantial evidence. State v. Kalagian, 833 S.W.2d 431, 434 (Mo.App.1992).

Looking at the record, we find sufficient evidence of Defendant’s intent. The checks contain Defendant’s handwriting and signature. Five of the checks contained the date August 20, 1992 and were deposited by United Oil on that same date, and three more checks were dated August 27, 1992 and deposited on that date. Defendant contends all eight checks were postdated and that she therefore did not have the requisite intent to defraud since United Oil had notice that there were insufficient funds at the time of issue. The record, however, does not support Defendant’s contention. In support Defendant points to her and her daughter’s testimony that the checks were postdated. However, this court must consider all reasonable inferences favorable to the verdict and disregard any evidence or inferences to the contrary. Five of the checks contained the August 20th date and the other three had the August 27th date. The checks themselves contained no notations of being postdated, nor did Defendant’s checkbook register specify they were postdated. The manager of United Oil, Fred Wilferth, testified Defendant never requested he hold onto a check or indicated to him there would be insufficient money to cover the checks in question. There was nothing in United Oil’s records representing the checks were postdated when received. The only evidence presented suggesting the checks in question were postdated came from the testimony of defendant and her daughter, who sometimes delivered the checks to United Oil. Yet, the credibility of witnesses and the weight to be given the evidence are for the trial court to determine, and this court is to defer to the trial judge’s superior position from which to determine credibility. State v. Blankenship, 830 S.W.2d 1, 16 (Mo.1992). We are not to determine witness credibility nor weigh the evidence on appeal. State v. Harper, 884 S.W.2d 362, 364 (Mo.App.1994). Rather, we are to determine only whether there is sufficient proof from which the trial court could reasonably have found defendant guilty. State v. Hood, 680 S.W.2d 420, 423 (Mo.App.1984).

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State v. Harris, 913 S.W.2d 348, 1995 Mo. App. LEXIS 1966, 1995 WL 698852 (Mo. Ct. App. 1995).

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