State v. Madani

910 S.W.2d 362, 1995 Mo. App. LEXIS 1836, 1995 WL 653388
CourtMissouri Court of Appeals
DecidedNovember 7, 1995
DocketNos. 18401, 19928
StatusPublished
Cited by3 cases

This text of 910 S.W.2d 362 (State v. Madani) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Madani, 910 S.W.2d 362, 1995 Mo. App. LEXIS 1836, 1995 WL 653388 (Mo. Ct. App. 1995).

Opinion

CROW, Judge.

A jury found Appellant, Said A. Madani, guilty of the class D felony of passing a bad check, § 570.120, RSMo 1986,1 and assessed punishment at six months’ imprisonment in jail and a fíne in an amount to be determined by the trial court. The trial court entered judgment in accordance with the verdict, imposing a $1,000 fíne. Appellant brings appeal 18401 from that judgment.

While that appeal was pending, Appellant filed a motion to vacate the judgment and sentence per Rule 29.15.2 Appellant failed to appear in the motion court for an evidentiary hearing,3 whereupon the motion court dismissed the 29.15 proceeding “for failure to prosecute.” Appellant brings appeal 19928 from that order.

We consolidated the appeals, Rule 29.15(1), but address them separately in this opinion.

Appeal 18401

The first of Appellant’s two points relied on in this appeal avers the trial court erred in denying Appellant’s motion for judgment of acquittal at the close of the State’s evidence and again at the close of all the evidence in that the State failed to present sufficient evidence to convince a rational trier of fact beyond a reasonable doubt that Appellant passed the check “with the purpose to defraud.”

Because Appellant presented evidence in his own behalf after the State rested, Appellant waived any claim of error in the denial of the motion for judgment of acquittal at the close of the State’s evidence. State v. Purlee, 889 S.W.2d 584, 587[1] (Mo. banc 1992). Consequently, the only issue we must address in point one is whether the trial court erred in denying the motion for judgment of acquittal at the close of all the evidence. Id.

In reviewing a challenge to the sufficiency of the evidence, we accept as true all of the evidence favorable to the verdict, including all favorable inferences drawn from the evidence, and we disregard all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993), cert. denied, — U.S. -, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). So viewed, the evidence established the following facts.

Sometime before August 18, 1989, Appellant bought two motor vehicles at Joplin Dealers Auto Auction (“JDAA”). He gave JDAA a cheek for each vehicle. Both checks were returned to JDAA unpaid because of “not sufficient funds.” JDAA notified Appellant.

On August 18, 1989, Appellant entered JDAA’s office and stated he “had been notified that he had some bad cheeks, and he wanted to pick them up.” Susan Simmons, a JDAA employee, retrieved the two dishonored checks and added their amounts, getting a total of $3,900. Appellant wrote a $3,900 check dated August 18, 1989, drawn on Union National Bank, Wichita, Kansas, payable to JDAA and handed it to Simmons in exchange for the two dishonored cheeks.

JDAA deposited the $3,900 check in its account. The check was returned by the drawee bank “Unable to locate.” Helen Howard, an officer of JDAA sent Appellant a “ten-day notice” requesting payment of the check. Howard’s testimony:

“Q. Based upon this ten-day letter and your conversations with Mr. Madani, did he ever make good this $3,900?
A. No.
[365]*365Q. Did he ever return the two vehicles that were purchased using that $3,900 check?
A. No, ma’am.”

It was stipulated that Appellant opened the account at Union National Bank, Wichita, Kansas, on July 31, 1989, with a balance of $185. No deposits were made thereafter, and the account was closed August 9, 1989.

Appellant testified he was in the “car business” and had dealt with JDAA “on and off for many years.” Appellant avowed JDAA never refused to take a check from him. He conceded “a few” of his checks to JDAA “had been returned by the bank.” However, explained Appellant, “I used these checks as a promissory note and they gave me extension of time to pay.”

Instruction 5, the verdict-director, read, in pertinent part:

“If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about August 18, 1989, in the County of Newton, State of Missouri, the defendant, with the purpose to defraud, passed to Sue Simmons a check in the amount of $3,900.00, drawn upon Union National Bank, Wichita, Kansas, dated August 18, 1989, payable to Joplin Dealers Auto Auction, and
Second, that at the time the defendant passed such check, he knew it would not be paid, and
Third, that the check was made out in an amount of at least one hundred fifty dollars,
then you will find the defendant guilty of passing a bad check.
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Section 570.120 reads, in pertinent part:
“1. A person commits the crime of passing a bad check when, with purpose to defraud, he ... passes a check ... knowing that it will not be paid by the draw-ee....
2. If the issuer had no account with the drawee ... at the time the check ... was issued, this fact shall be prima facie evidence of his purpose to defraud and of his knowledge that the check ... would not be paid.”

Appellant maintains the evidence was insufficient to support a finding that he passed the $3,900 check with the purpose to defraud in that there was no evidence that he received anything of value for it. Citing State v. Hack, 284 S.W. 842 (Mo.App.1926), Appellant asserts: “[A]n element of passing bad checks is that a thing of value must be procured by the instrument.”

In Hack, the accused was convicted of issuing a check with intent to defraud in violation of § 3553, RSMo 1919. The check was given in payment of a “past-due account.” The appellate court held that inasmuch as the accused obtained nothing for the check, he “could not be held as for having issued the cheek with intent to defraud.” Id. The opinion noted that after the accused issued the check, the General Assembly amended § 3553 to apply where a person uttered a check “for the payment of any past-due debt.” Id. However, because the accused committed no crime under § 3553 as it existed when he issued the check, the conviction was reversed. Id. at 843.

Appellant also cites State v. Kleen, 491 S.W.2d 244 (Mo.1973). There, a Missouri resident was convicted of issuing an insufficient funds check in violation of § 561.460, RSMo 1969. The check, drawn on a Missouri bank, was issued in Tennessee in payment for a truckload of cottonseed meal purchased there. Reversing the conviction, the Supreme Court of Missouri held no crime was committed in Missouri because the accused got nothing for the check until it was delivered to the seller in Tennessee, simultaneously with the purchase. Id. at 246. The Court explained, “Then and there is where the required intent to defraud by misrepresentation of an existing fact occurred — the obtaining of the meal by completion and delivery of the cheek knowing at the time there were not sufficient funds or credit for payment in full on presentation.” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
910 S.W.2d 362, 1995 Mo. App. LEXIS 1836, 1995 WL 653388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-madani-moctapp-1995.