State v. Lester

502 So. 2d 251, 1987 La. App. LEXIS 8604
CourtLouisiana Court of Appeal
DecidedFebruary 4, 1987
DocketNo. K86-423
StatusPublished
Cited by3 cases

This text of 502 So. 2d 251 (State v. Lester) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lester, 502 So. 2d 251, 1987 La. App. LEXIS 8604 (La. Ct. App. 1987).

Opinion

DOUCET, Judge.

Don E. Lester, defendant, was charged by bill of information with issuing a worthless check in the amount of $500.00 to Steven J. Wells, a violation of La. R.S. 14:71. The information was later amended to reduce the amount of the check to less than $100.00. Following a bench trial, defendant was found guilty and sentenced to serve six months in the parish jail, 493 So.2d 627. Defendant appeals, citing two assignments of error. We affirm.

On October 12, 1985, Mr. Wells provided sound equipment for a horse show held at defendant’s ranch. Defendant paid for the services by issuing a check in the amount of $500.00 written on the account of Leseo Management, Inc., and signed by the defendant. Mr. Wells received the check on November 11, 1985, and referred it to his bank with instructions to check with defendant’s bank and present the instrument for payment when defendant’s account contained sufficient funds to cover it.

After being unable to cash the check for almost seven weeks, Mr. Wells instructed his bank to go ahead and attempt to put the check through. As expected, the check was dishonored and returned to Mr. Wells. The defendant was notified of the non-payment by a registered letter mailed by Mr. Wells on January 13, 1986. However, he failed to pay the check until the day of trial, March 14, 1986, when he tendered to the District Attorney’s office, a cashier’s check in the amount of $500.00 payable to Mr. Wells.

On appeal, defendant first contends that the verdict of the trial court was in error because the state failed to prove beyond a reasonable doubt an intent to defraud on the part of the defendant. Defendant does not dispute that he issued the check in exchange for something of value, knowing at the time of the issuing that he did not have sufficient credit with the bank for payment of the check in full upon its presentation.

[253]*253It is also not disputed that the defendant failed to pay Mr. Wells the amount of the check within ten days after receiving notice of non-payment of the check. Such failure to pay is, by statute, presumptive evidence of intent to defraud. La. R.S. 14:71 A(2). In State v. Lindsey, 491 So.2d 371 (La.1986), the Supreme Court examined this statutory presumption and characterized it as “permissive.” The court defined a permissive presumption as “one which allows, but does not require, the finder of fact to infer the fact which is an element of the crime from the basic fact that has been proven.” The court further stated that “a permissive presumption will generally be upheld unless there is no rational way that the finder of fact could make the connection permitted by the inference.”

Defendant argues that the presumption was rebutted by evidence adduced at trial. He claims that Mr. Wells considered the check as only evidence of a debt which would eventually be paid. This contention is based on Mr. Wells’ prior dealings with defendant. Mr. Wells performed services for the defendant in March and September of 1985 and was paid $3,500.00 and $3,150.00, respectively, by defendant. Payment for those services was by check and, at least with regard to the check for the March services, Mr. Wells had to hold the check and continuously call defendant’s bank to make sure there were sufficient funds on deposit before cashing it. The record does not indicate how long it took Mr. Wells to cash that check.

We must disagree with defendant’s argument. We find no evidence of any agreement between the parties that Mr. Wells would be paid whenever defendant chose to deposit sufficient funds in his account to cover the check or otherwise pay him the $500.00 when he was financially able. We are unable to believe that defendant could reasonably assume such was the case merely because Mr. Wells had trouble cashing the earlier check issued by defendant, and later accepted another check from him as payment for subsequent services rendered. Therefore, we cannot say there was no rational way the trial judge could have made the connection permitted by the evidence and, thus, he properly relied on the statutory presumption to establish the necessary element of intent to defraud.

The meaning of the term defraud was examined by the Supreme Court in State v. Clayton, 110 So.2d 111 (La.1959). The court stated:

“There is an unanimity of opinion in all jurisdictions as to the meaning of this term in that in its ordinary and accepted signification it is the deprivation or withholding from another that which justly belongs to or is due him, to deprive of something dishonestly, and to rob. 18 C.J. 468; 26A C.J.S. Defraud p. 148; Berry v. State, 153 Ga. 169, 111 S.E. 669, 35 A.L.R. 370.”

When defendant issued the check to Mr. Wells, failed to deposit sufficient funds to cover it, and failed to pay the amount within ten days after receiving notice of nonpayment, he deprived or withheld from Mr. Wells that which was due him. The record shows that the state proved beyond a reasonable doubt that defendant intended to defraud Mr. Wells. We find no merit to defendant’s first contention of error.

Defendant next contends that the “maximum” sentence imposed by the trial court is excessive, based upon impermissible, erroneous information, and failed to give due regard to the mitigating factors of La. C.Cr.P. art. 894.1.

Defendant’s sentence of six months imprisonment was not the maximum sentence the trial court could have imposed as La. R.S. 14:71 E allows, additionally, a fine of not more than five hundred dollars.

In imposing the sentence, the trial judge referred to his reasons for sentencing the defendant the previous week in a different case involving yet another charge of issuing worthless checks. The trial judge stated: “For the same reasons given March 7th, the Court sentences you be confined to the Parish jail for a period of six months.”

La. C.Cr.P. art. 894.1 sets forth guidelines to follow in imposing sentence and [254]*254requires that the trial court state for the record the considerations taken into account and the factual basis for its conclusions. This is to ensure that each sentence is individualized to the offender and the offense. State v. McDonald, 414 So.2d 785 (La.1982); State v. Bourgeois, 406 So.2d 550 (La.1981). Every aggravating and mitigating circumstance need not be articulated; however, the record must reflect that the trial judge adequately contemplated the statutory guidelines. State v. McDonald, supra; State v. Grey, 408 So.2d 1239 (La.1982).

This court would have preferred that the trial judge have fully stated his reasons for imposing sentence in this case. However, we find that, under the facts and circumstances of this case, the trial court adequately complied with La. C.Cr.P. art. 894.1 when he referred to his reasons for imposing the previous sentence if those reasons satisfied the requirements of the statute. Each case involved a charge of issuing a worthless check. The circumstances surrounding the offenses were similar in many respects. The defendant’s particular situation regarding any possible mitigating factors was also the same in both cases except that the two other charges of issuing worthless checks pending at the time of the previous sentencing were dismissed on the date of sentencing in the instant case.

We now examine the particular reasons previously set forth by the trial judge. His reasons are as follows:

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Related

State v. Washington
700 So. 2d 1068 (Louisiana Court of Appeal, 1997)
State v. Lester
504 So. 2d 875 (Supreme Court of Louisiana, 1987)

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Bluebook (online)
502 So. 2d 251, 1987 La. App. LEXIS 8604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lester-lactapp-1987.