State v. Worthy

Citation203 So.3d 372
Decision Date05 October 2016
Docket NumberNO. 2016-KA-0431,2016-KA-0431
Parties State of Louisiana v. Jermain M. Worthy Sr.
CourtCourt of Appeal of Louisiana (US)

(Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Joy Cossich Lobrano )

Judge Edwin A. Lombard

The defendant, Jermain M. Worthy, seeks review of his conviction and sentence for issuing a worthless check in an amount more than $500, a violation of La. Rev. Stat. 14:71. After review of the record in light of the applicable law and arguments of the parties, the defendant's conviction is reversed.

Relevant Procedural History

The defendant was initially charged by bill of information on March 3, 2011, with two counts of issuing a worthless check in the amount of $500 or more. The second count was dismissed on March 11, 2015, but the first count was amended twice: (1) on March 11, 2015, Count 1 was "amended to Theft > $1500" and "Date of Offense 2/25/2008-5/8/2009" was added; (2) on April 28, 2015, Count 1 was again amended by crossing out "Theft >$1500" and adding "Amended to 14:71; Issuing worthless checks."

The defendant pleaded not guilty to the amended count. After a one-day trial on September 15, 2015, the defendant was found guilty as charged by a six-person jury. On November 2, 2015, he was sentenced to five years at hard labor, suspended, and placed on five years active probation with monthly restitution payments of $500 to the victim.

This appeal was timely filed.

Relevant Facts

The following evidence was adduced at trial:

Nick Geraci, an investigator with the New Orleans District Attorney's Office testified that he personally "handles all worthless checks for the city." Mr. Geraci explained that it was standard procedure to instruct someone coming to the District Attorney's Office with a worthless check complaint that the check had to first be negotiated by the bank and, accordingly, it was necessary for the person filing the complaint to deposit the check, wait for it to come back "either NSF or closed account," send a ten-day demand letter by US Postal Service certified mail, return receipt. At the end of the ten day period, the complainant could return to District Attorney's Office with affidavit and "bring me the case" because, according to Mr. Geraci, the failure to respond to the certified demand letter within ten days "was considered their intent to defraud the victim of the funds that they should be receiving." Subsequently, Mr. Geraci would apply for a warrant to be issued for the person who signed the check.

Mr. Geraci testified that in this case an undated check in the amount of $26,000.00 on the account of "Worthy Properties, L.L.C., was signed by the defendant (described as being in "the construction or developer business developing properties") and made out to Ms. Fournet (described as being in "real estate business"). Mr. Geraci explained that Ms. Fournet "held on to the check because she wanted to work this out with the two of them because they had been doing business for a long period of time." Ms. Fournet, following Mr. Geraci's instructions, returned to the District Attorney's Office with an affidavit and copy of the check after the defendant failed to pay on the check within the ten-day period as demanded in the certified letters sent to but not received by the defendant because the letter was returned unclaimed.1 . Mr. Geraci identified State exhibit 1, a copy of the undated check; State exhibit 2, a copy of the negotiated check stamped "closed account" with a bank stamp indicating that it had been returned on May 12, 2009; and State exhibit 3, copies of four certified letters sent by Ms. Fournet to the defendant stamped "Return to Sender; Unclaimed; Unable to Forward." Finally, Mr. Geraci stated that in the course of his investigation he spoke to the defendant, who told him that he did not have the funds and needed more time to pay, but that the defendant had not paid the $26,000.00 as of the day of trial.

On cross-examination, Mr. Geraci conceded that the undated check (as initially written by the defendant and presented to Mr. Geraci by Ms. Fournet) was not negotiable. He insisted, however, that he did not instruct her to date the check, stating:

I didn't tell her to do anything. I told her that the check has to be negotiated. What happened between Mr. Worthy and her, I'm not aware of, what their agreement was. But for it to come to the District Attorney's Office for us to handle the case the check has to be negotiated.

In addition, Mr. Geraci verified that the four demand letters sent to the defendant were never received by the defendant. Under further questioning, Mr. Geraci reiterated that he knew the check as initially presented to him by Ms. Fournet could not be legally negotiated without a date and that he knew, although he did not instruct her to do so, that for the check to be negotiable "someone" would have to put a date on it. Mr. Geraci testified that he did not know the date the check was written, only that it would "[a]pproximately have to be in 2008," although the bill of information indicated the date of the offense began in February 2008 and continued until Ms. Fournet negotiated the check in May 2009. Mr. Geraci agreed that the District Attorney's Office had subpoenaed the defendant's bank record, but asserted that he did not review them. Mr. Geraci had no knowledge of the agreement between the defendant and Ms. Fournet, stating only that the defendant told him he "wanted to pay the money back" to Ms. Fournet.

On redirect, Mr. Geraci admitted that the defendant and Ms. Fournet had "a working relationship" and that he "didn't know what agreements they made amongst each other about the check and the money owed."

Ms. Fournet testified that she was a real estate broker and owned her own real estate company. With regard to her relationship with the defendant, Ms. related: "We met at a property that he was interested in buying and we were together ever since in a sense. ... we were a great team." She stated that in early 2005 she met the defendant, "a renovator, a contractor, but he did very good work and I was very happy to partner him with his properties." Their business relationship lasted until 2008, although she "had really hoped for longer. We were quite a team."

In early 2008, Ms. Fournet brokered the defendant's purchase of a property known as "Cindy's Place" a multi-family apartment complex in New Orleans East in need of renovation. Ms. Fournet explained that after the purchase of a property, there was generally a "transition period for acquiring the renovation funds." According to Ms. Fournet, the defendant requested a loan of $26,000.00 while he was waiting for the renovation funds to become available for the "Cindy's Place" property, adding:

"I was interested in helping him. You know, in the past things had worked similarly and I was very happy—I wished him success. I was very happy for his success."

Thus, in late February (she was unsure of exact date), Ms. Fournet wrote the defendant a check for $26.000.00. Subsequently, at some point in June 2008, the defendant wrote the undated check to Ms. Fournet. According to Ms. Fournet, the undated check was to be used for repayment of the loan but "there was a time period needed for the funds to be substantiated." When asked if she heard from the defendant about the check prior to December 31, 2008, Ms. Fournet answered affirmatively, then qualified "We spoke—well, messages and then speaking about in reference to he's interested in repaying and that arrangement would be made, for instance, with an attorney." When questioned as to whether the defendant had ever told her to date and deposit the check, Ms. Fournet responded:

Did he tell me to? He said I ought to have. But did he tell me to do it then? That's a good question. I don't know. I don't remember.

When asked if the defendant had ever given her the okay to deposit the check, Ms. Fournet stated:

Initially—that's a—that I should have deposited it and why didn't I. There weren't funds, sufficient funds when I called the bank to see if there were funds so there might have been that occasion.

Ms. Fournet stated that she went to the District Attorney's Office at some unspecified date in 2009 and then dated the check herself "to make the transaction" because "[i]t needed to be done in order to proceed." Ms. Fournet then identified State exhibit 2 as the check she dated and deposited which was returned marked "insufficient funds."

On cross-examination, Ms. Fournet conceded that prior to the $26,000.00 loan in this case, she had loaned the defendant money which he repaid, explaining that she and the defendant had been "business partners" with a "good working relationship." According to Ms. Fournet, "an incident occurred" several months after she gave the defendant the check in February which "prompted" the defendant to give her the undated check. Ms. Fournet, acknowledged that she knew an undated check was not negotiable. She also claimed that she and the defendant had a written agreement:

The payment plan, but the plan would be of that same year that the amount would be paid in full. So that would have been in 2008.. So in February 2008 we did sign a document stating that his payment plan would be finished by late May and I want to say May 28th or May 23rd. So in between April and May was the scheduled repayment plan.

The written agreement was not produced at trial or submitted into evidence but when asked whether the debt would be repaid under the written agreement in installments, Ms. Fournet stated: "It would have been a one-time payment that was due to me. In other words have it paid up—and if he needed installments, we can consider that...

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2 cases
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    • United States
    • Court of Appeal of Louisiana (US)
    • August 9, 2017
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