State v. Adams
| Citation | 3 Ohio App.3d 50,443 N.E.2d 1047 |
| Parties | , 3 O.B.R. 57 The STATE of Ohio, Appellee, v. ADAMS, Appellant. |
| Decision Date | 12 August 1982 |
| Court | United States Court of Appeals (Ohio) |
Syllabus by the Court
1. The statutory presumption in R.C. 2913.11(B), that an offender is presumed to know a check will be dishonored if he has no account with the drawee bank or if the account contains insufficient funds, may be included in the trial court's instructions to the jury.
2. The statutory presumption in R.C. 2913.11(B) is neither arbitrary nor irrational and does not violate the Due Process Clause of the Fourteenth Amendment.
3. The trial court must adequately instruct the jury on the nature and effect of the rebuttable presumption in a criminal case and the failure to do so is reversible error. (Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, followed.)
Michael Miller, Pros. Atty., Alan C. Travis and Karen L. Martin, Columbus, for appellee.
James Kura, County Public Defender, and Gloria Eyerly, Columbus, for appellant.
This is an appeal by defendant from a conviction in the Franklin County Court of Common Pleas for the offense of passing bad checks, under R.C. 2913.11.
The record indicates that at the beginning of the trial the parties stipulated that state's exhibit 1, check No. 278, was written by defendant on the Columbus Municipal Employees Credit Union, dated and presented to Lazarus Department Store on December 24, 1980. Ceil Shaffer, Lazarus Security Department, testified that she received a check from the return check department of Lazarus on March 11, 1981; that she sent a notice of dishonor, by certified letter, to defendant notifying him that the check had been dishonored and that he had ten days to resolve the matter. The return receipt card signed by defendant was dated March 13, 1981. On March 21, Shaffer called defendant who stated that he did not have the money and to go ahead and file suit, and she suggested that he return the jewelry. Defendant stated that he could not return the jewelry and that he did not have the money to cover the check because he was paying on his Lazarus charge account. On March 27, 1981, Miss Shaffer filed a felony charge. On April 16, 1981, she received two money orders from defendant totaling $250 in envelopes postmarked April 8, 1981. A third money order receipt for $75, dated April 18, 1981 and payable to Lazarus, was produced but Miss Shaffer said, as far as she knew, the third money order had not been received by Lazarus. She stated that the charges would not have been brought against the defendant if he had paid sooner, and that she was not empowered to add the check to his balance on his Lazarus charge account as he had suggested.
Delores Coons, Security Department of the Columbus Municipal Credit Union, testified that a share draft account is similar to a checking account at a bank; that, if the share draft account is overdrafted, funds, if available, could be transferred from the customer's savings account but otherwise payment of the check is stopped; that the credit union has authority to close an account after three overdraft reports have been made; that the first letter notifying defendant of the overdrafts was sent November 3, 1980; that the last two letters were sent December 1, 1980, when the account was closed; that she sent defendant a notice by regular mail that his account had been closed due to three or more overdrafts; and that, on December 8, 1980, a deposit of $240 was made in defendant's checking account.
She further testified that the credit union's statement ending November 30, 1980 reflected eleven bad checks and a share balance of minus $858.79, the amount of the checks not honored in defendant's account. She stated that defendant did not contact her about the letters or the closing of his account, and that the defendant did not have a share draft account at the credit union on December 24, 1980, when he wrote the Lazarus check.
Following the resting by the state of its case, the defendant testified on his own behalf stating that he was twenty-nine years old; that he had lived at 915 Atcheson for two and one-half years; that he lived there with his former wife, a fire fighter, when he opened the account at the credit union; that eight or nine checks bounced around October or November; and that he started sending money orders to cover the checks after he found out about December 28 that his share in the draft account had been closed. He stated that he did not recall receiving notice that his account had been closed and that, when he purchased the necklace at Lazarus on December 24, 1980, he was unaware his account was closed and denied any intent to defraud. He stated that he had prior convictions for aggravated menacing, petty theft, mail theft and unauthorized use of property. He said that he received the notice of dishonor from Lazarus and sent two money orders, dated March 24 and March 28, to them but that they were returned for insufficient postage and that he mailed them again in different envelopes; that the money order dated March 24 was mailed on that day, eleven days after he received the notice of dishonor; and that his wife wrote three of the bad checks in November, and that he wrote the other eight.
After closing argument, the jury was charged and began deliberating. Later, the jury requested that the law of the case be re-read to them as there was some confusion. That portion of the charge relating to the law was read and the jury again retired. The jury returned a verdict of guilty from which defendant appeals.
Defendant brings four assignments of error:
At the outset of the trial, the trial court gave the jury instructions, which included instructions on presumption, as follows:
Later, during the instructions to the jury following the presentation of evidence and the arguments of counsel, the court included the following instructions in its charge:
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