State of La. v. DELUZAIN

• Decision Date: 07 May 2010
• Docket Number: No. 2009 KA 1893.,2009 KA 1893.
• Citation: 38 So.3d 1054
• Parties: STATE of Louisiana v. Beryl Anne DELUZAIN.
• Court: Court of Appeal of Louisiana — District of US

38 So.3d 1054

STATE of Louisiana

v.Beryl Anne DELUZAIN.

No. 2009 KA 1893.

Court of Appeal of Louisiana,First Circuit.

May 7, 2010.

Walter P. Reed, District Attorney, Kathryn Landry, Assistant District Attorney, Baton Rouge, LA, for Appellee, State of Louisiana.

Marion B. Farmer, Covington, LA, for Defendant/Appellant, Beryl Anne Deluzain.

Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.

GUIDRY, J.

The defendant, Beryl Anne Deluzain, was charged by bill of information with issuing worthless checks in an amount over $500.00, a violation of La. R.S. 14:71. She pled not guilty. Following a trial by jury, the defendant was found guilty as charged. The trial court deferred imposition of sentence under La. C. Cr. P. art. 893 and placed the defendant on supervised probation for four years. The court also ordered the defendant to pay $33,445.06 in restitution to the victim. The defendant now appeals urging three assignments of error as follows:

I. The evidence as a whole was insufficient to prove beyond a reasonable doubt Beryl Deluzain was guilty of issuing worthless checks in an amount over $500.00.

II. The trial court erred when it instructed the jury specific intent to defraud existed at the time the check was presented and not at the time it was issued.

III. The trial court erred when it restricted defense counsel's voir dire in regards to the issuer of a check must have specific intent to defraud at the time the check was written.

Finding the evidence insufficient to prove an essential element of the crime, we reverse the conviction and sentence.

FACTS

In October 2003, the defendant and Allain Poux entered into an agreement for the sale of “European Expressions, Inc.” Mr. Poux, the owner of an outdoor garden supplies business and the property where it was located, agreed to sell the business's inventory and equipment to the defendant. He also agreed to allow the defendant to lease the property. A payment plan was devised wherein the defendant agreed to pay Mr. Poux installments of $2,250.00 per month for the inventory and equipment of the business and $2,500.00 per month to lease the property. The lease and merchandise payments were scheduled to commence in November 2003. In connection with the payment agreement, the defendant tendered 24 postdated checks to Mr. Poux (twelve $2,250.00 checks for the monthly inventory/equipment installment payments and twelve $2,500.00 checks for the first year of lease payments.) Two checks were postdated for the first of each month through November 2004.

For the first eight months of the agreement, the monthly checks were presented to the bank on the date indicated on the draft. The bank honored each of the checks. However, when Mr. Poux presented the checks for the July 2004 payments, the checks were returned by the bank unpaid (insufficient funds). Thereafter, both checks for August 2004, the inventory payment check for September 2004, both checks for October 2004, and both checks for November 2004, were also returned due to insufficient funds upon presentment. After unsuccessfully attempting to collect the money for the nine ¹ returned checks from the defendant, Mr. Poux sent the defendant certified letters demanding that she honor the unpaid checks within ten days. The defendant did not respond to the demands. Mr. Poux subsequently reported the matter to the St. Tammany Parish District Attorney's Office. Sam Gebbia, the director of the Worthless Checks Division of the District Attorney's Office, testified that once worthless checks complaints are submitted to the District Attorney's Office, three separate “demand for payment” letters are sent to the issuer of the unpaid checks. He explained that when the defendant herein failed to respond to the District Attorney's Office's collection attempts, a warrant was secured for her arrest.

SUFFICIENCY OF THE EVIDENCE

In cases such as this one, where the defendant raises issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should preliminarily determine the sufficiency of the evidence before discussing the other issues raised on appeal. State v. Hearold, 603 So.2d 731, 734 (La.1992). The sufficiency issue must be decided first because a finding of insufficient evidence to support the guilty verdict bars the retrial of a defendant based on the constitutional protection against double jeopardy. Thus, all other issues would be rendered moot. State v. Davis, 01-3033, pp. 2-3 (La.App. 1st Cir.6/21/02), 822 So.2d 161, 163. Accordingly, we will first determine whether the evidence was sufficient to support the defendant's conviction for issuing worthless checks.

A conviction based on insufficient evidence cannot stand as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. C. Cr. P. art. 821(B); State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988).

When analyzing circumstantial evidence, La. R.S. 15:438 provides, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This statutory test is not a purely separate one from the Jackson constitutional sufficiency standard. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. State v. Shanks, 97-1885, pp. 3-4 (La.App. 1st Cir.6/29/98), 715 So.2d 157, 159.

The defendant argues the evidence presented at the trial of this matter was insufficient because the state failed to prove that she intended to defraud Mr. Poux when she issued the series of checks in connection with the business agreement. Since intent to defraud is an essential element of the crime charged, she asserts her conviction and sentence must fall. In response, the state argues that it was entitled to the presumption of evidence of intent to defraud based upon the defendant's failure to pay following notice that the checks she issued were dishonored upon presentation.

Louisiana Revised Statutes 14:71(A)(1)(a) provides, “[i]ssuing worthless checks is the issuing, in exchange for anything of value, whether the exchange is contemporaneous or not, with intent to defraud, of any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has not sufficient credit with the bank, or other depository for the payment of such check, draft, or order in full upon its presentation.” Louisiana Revised Statutes 14:71(A)(1)(b) provides, “[t]his Section shall apply to a check, draft, or order tendered for satisfaction, in whole or in part, of payments due on installment contracts, open accounts, or any other obligation for which the creditor has authorized periodic payments or the extension of time in which to pay.” Considering the language of the statute, it is clear that the intent to defraud must exist at the time the check is issued, i.e., coincident with the first delivery of the instrument in complete form. La. R.S. 14:71, Reporter's Comment (“It is assumed that the following definition of ‘issuing’ in Section 191 of the N.I.L. [former][R.S. 7:191] will be followed: ‘Issue means the first delivery of the instrument complete in form, to a person who takes it as a holder.’ ”). See also La. R.S. 10:3-105(a) (“ ‘issue’ means the first delivery of an instrument by the maker or drawer, whether to a holder or nonholder, for the purpose of giving rights on the instrument to any person.”).

Furthermore, the fact that La. R.S. 14:71(A)(1)(b) makes the worthless check statute applicable to checks issued for payments due on installment contracts and open accounts does not change the need for intent to defraud at the time of issuance. This section of the statute does not presuppose that the check for payment on the named credit accounts will be postdated. Therefore, in order to convict the defendant in this case, the state was required to prove: (1) that the defendant issued a check in exchange for something of value; (2) with the intent to defraud at the time of issuance; and (3) with the knowledge that at the time she wrote the check, she did not have enough money in her account for the check to clear when presented. See State v. Tullier, 504 So.2d 1001, 1002 (La.App. 1st Cir.1987). Intent is a question of fact to be decided by the trier of fact. It need not be proven as a fact, but may be inferred from the circumstances. See State v. Broaden, 99-2124, p. 18 (La.2/21/01), 780 So.2d 349, 362, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001).

The defendant in this case does not dispute that she issued the postdated checks to Mr, Poux as payment for the leasing of the property for one year and for twelve installment payments on the equipment and inventory. It is also not disputed that the defendant was aware, at the time of the issuing, that she did not have sufficient credit with the bank to cover all of the checks. Thus, as previously noted, the sole issue presented herein is whether the essential element of intent to defraud was proven.

At trial, the state relied on the statutory presumption set forth in the worthless checks statute to prove fraudulent intent. Louisiana Revised Statutes 14:71(A)(2) provides:

The offender's failure to pay a check, draft, or order, issued for value, within ten days after notice of its nonpayment upon presentation has been deposited by certified mail in the United States mail system addressed to the issuer thereof either at the...