Dunaway v. State

• Decision Date: 03 March 1977
• Docket Number: No. F--76--611,F--76--611
• Citation: 561 P.2d 103
• Parties: Darrell Allen DUNAWAY, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 103

561 P.2d 103

Darrell Allen DUNAWAY, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--611.

Court of Criminal Appeals of Oklahoma.

March 3, 1977.

Rehearing Denied March 25, 1977.

Leslie R. Earl, Jr., Public Defender, Andrew E. Wood, Legal Intern, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Alan Foster, Legal Intern, for appellee.

OPINION

BUSSEY, Presiding Judge:

The Appellant, Darrell Allen Dunaway, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Tulsa County, Case No. CRF--75--2151, with the offense of Obtaining Merchandise by Bogus Check, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 51 and 21 O.S.1971, §§ 1541.1 and 1541.2. The jury found the defendant guilty, and his punishment was fixed at ten (10) years' imprisonment. From said judgment and sentence a timely appeal has been perfected to this Court.

The State put on evidence identifying defendant as the person who presented the check, identified as State's Exhibit No. 1, on the 28th day of August, 1975, to the manager of Bud's Grocery Store in Tulsa County, Oklahoma. State's Exhibit No. 1 was further identified as having been subsequently returned by the National Bank of Tulsa unpaid due to insufficient funds. Exhibits Nos. 2 and 3 were identified as checks presented to Bud's Grocery on the 26th day of August, and returned by the bank for the same reason; Exhibits 2 and 3 were admitted by the court over objection by defendant, for the purpose of proving common scheme or design. State's Exhibit No. 4 was identified as a copy of the National Bank of Tulsa's statement on the account of Darrell A. Dunaway or Cinzia L. Dunaway, account no. 365957, covering the period from June 9, 1975 until October 24, 1975. State's Exhibit No. 5 was identified as a signature card of that account. The statement, Exhibit No. 4, was admitted over objection of defendant by the court to show common scheme or design.

The State then presented certified copies of judgments and sentences on pleas of guilty by the defendant corresponding to the allegations contained in the second page of the Information filed herein, to which the defense stipulated that the defendant named in the instant case was one and the same as the defendant named in the judgments and sentences.

The defendant put on three witnesses, including his wife, to establish a lack of intent to defraud on the part of defendant and generally showing defendant's financial difficulties during the relevant period.

The defendant next took the stand and testified regarding the problems in keeping the checking account. He further testified that he had had financial difficulties because of illness in the family and because he was unable to keep a job. The defendant then identified checks which he had picked up after they had been returned to the various businesses; these checks were admitted into evidence. On cross-examination, the defendant stated repeatedly that he knew his account had no money in it, but he kept writing checks anyway, intending to pick them up as soon as possible. The defendant specifically admitted cashing State's Exhibit No. 1, which is the check upon which the instant charge is based; additionally, he identified several more checks on cross-examination that he had written, knowing the account to be overdrawn, which checks were also admitted in evidence. However, the defendant repeatedly denied any intent to defraud.

The defendant's first assignment of error is that the verdict is not sustained by sufficient evidence. We disagree. The evidence identifying the 'false and bogus check' and identifying the defendant as the man who presented that check was clear. The evidence that defendant's account was overdrawn at the time the check was written was equally clear. Further, State's Exhibits 2 and 3 are evidence of checks issued under similar circumstances which tended to prove '. . . guilty knowledge or the intent with which the act charged was committed.' Lancaster v. State, 88 Okl.Cr. 133, 200 P.2d 768, 771 (1948). In Gray v. State, Okl.Cr., 527 P.2d 338, 341 (1974), this Court stated:

'. . . We have consistently held that where there is competent evidence in the record from which the jury could reasonably conclude that the defendant was guilty as charged, the Court of Criminal Appeals will not interfere with the verdict, even though there is a sharp conflict in the evidence and different inferences may be drawn therefrom, since it is the exclusive province of the jury to weigh the evidence and determine the facts. . . .'

See also Wooldridge v. State, Okl.Cr., 502 P.2d 348 (1972).

For his second assignment of error, the defendant states that the trial court erred in allowing State's Exhibit No. 4 into evidence in its entirety. And for his third assignment of error, defendant states that the trial court erred by allowing the Assistant District Attorney to make prejudicial and inflammatory statements during the trial and closing arguments, preventing the defendant from having a fair and impartial trial. While this Court feels that there is merit to defendant's second and third assignments of error, after carefully searching the record, we are of the opinion that the defendant was not so prejudiced as to require reversal. In the instant case there was competent State's evidence from which the jury based their verdict. Additionally, the defendant made a judicial confession of every element of the crime charged except intent to defraud. The penalty prescribed by law for Obtaining Merchandise by Bogus Check, After Former Conviction of a Felony, is not less than ten (10) years' imprisonment. The verdict in this case was ten (10) years, which is the minimum the defendant could have received. In view of the evidence, we feel that a retrial of this case would not result in a different verdict on the issue of guilt and since the defendant received the minimum sentence prescribed by law, prejudice is in no way indicated. It is therefore the opinion of this Court that the errors complained of have neither resulted in a miscarriage of justice, nor constitute a substantial violation of a constitutional or statutory right. See 20 O.S.1971, § 3001. See, also, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), setting out the federal 'harmless error' rule to be applied to a denial of a Federal Constitutional right; and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), applying an 'overwhelming evidence' test under the Chapman 'harmless error' rule.

The defendant's fourth assignment of error is that 21 O.S.1971, §§ 1541.1, et seq. are unconstitutional on their face and violate his rights to due process of law. The defendant sets out four contentions on which he bases his claim of unconstitutionality (hereinafter separately considered) and directs this Court's attention to one case supporting these contentions generally, People v. Vinnola, 177 Colo. 405, 494 P.2d 826 (1972). We note that while Colorado case law is not binding on this Court, such law would be, at least, persuasive if the statute held unconstitutional was the same as, or at least similar to, the Oklahoma statute under scrutiny herein. Accordingly, an examination of C.R.S.1963, 40--14--20, amended 1970, keeping in mind 21 O.S.1971, §§ 1541.1, et seq., reveals that although some phrases are similar, the statutes are quite dissimilar. The Colorado Court itself stated:

'. . . (T)hat we have not been directed to any bad check statute of any other state, nor have we been able to discover any jurisdiction which has a statute similar to the Colorado statute.'

Vinnola, supra, at 830.

The most significant distinction is that 21 O.S., § 1541.1 requires the 'intent to cheat and defraud,' while the Colorado statute requires only 'knowing or having reasonable cause to know . . . it (the check) will not be paid.' In Vinnola, supra, at 829 and 830, the Colorado Court stated:

'. . . (W)e note that until 1970, intent to defraud had always been an integral element in Colorado's bad check law. The reason for changing this intent to a reasonable cause to know that the check will not be paid when presented for payment is obscure. . . .'

The Colorado Court went on to rely, in part, on this failure to require any criminal intent in holding the Colorado 'bad check' law unconstitutional. Because of this basic difference in the Colorado and Oklahoma check statutes, and because of other differences that do not merit our discussion herein, the case of People v. Vinnola, supra, is not persuasive on this Court.

We now turn to defendant's specific contentions on which his fourth assignment of error of unconstitutionality is based.

First, he contends that the statute allows the bank a check is drawn on to determine guilt by dishonoring checks written by one person and paying checks written by another, depending on who he is, when the account is overdrawn. Apparently, defendant is referring to 21 O.S.Supp.1975, § 1541.4, which states, in part:

'The term ...