State v. Carroll

• Decision Date: 24 April 2001
• Citation: 41 S.W.3d 878
• Parties: (Mo.banc 2001) State of Missouri, Respondent, v. Freada P. Carroll, Appellant. SC83044 0
• Court: Missouri Supreme Court

41 S.W.3d 878 (Mo.banc 2001)

State of Missouri, Respondent, v. Freada P. Carroll, Appellant.

SC83044

Supreme Court of Missouri

04/24/2001

Appeal From: Circuit Court of Pemiscot County, Hon. Fred W. Copeland

Counsel for Appellant: Craig A. Johnston

Counsel for Respondent: Karen L. Kramer

Opinion Summary: Freada Carroll opened an account, wrote checks on it after she was overdrawn, cashed a check with an altered amount and payee, and wrote checks to a man at her address on insufficient funds. She was convicted of six counts of passing a bad check, one count of forgery, and in another trial, three more counts of passing a bad check. She appeals.

Court en banc holds: The evidence is not sufficient to support the first six bad check counts, and the judgment as to those counts is reversed and the case remanded. The judgments as to the forgery and the last three bad check counts are affirmed.

(1) As to the first six counts for the Class D felony of passing a bad check, the burden was on the state to prove that Carroll, with intent to defraud, passed a check on a nonexistent account knowing it would not be paid. The evidence was insufficient to show she had no account and knew she no longer had an account. She had opened the account. Although the bank said it closed the account when it became overdrawn, the bank continued to send monthly statements without noting the account closed and accepted deposits. In contrast, under section 570.120(1), the state need not prove an accused had no account to establish guilt of passing a bad check, but only that the accused passed a check with the purpose to defraud knowing it would not be paid. On remand, the court may enter judgment declaring Carroll guilty of class A misdemeanors for passing bad checks.

(2) Under Carroll's testimony, only two people could have changed the name of the payee and the amount on the allegedly forged check. It was the trial court's prerogative to believe the other person's testimony that he did not make the change. The forgery conviction is affirmed.

(3) As to the last three counts, Carroll concedes she wrote the checks to the man and that they were cashed. The evidence belies any notion she did not give them to him promptly after writing them. Her deposit was insufficient to pay any of the checks. The judgment as to these checks is affirmed.

All concur.

PER CURIAM¹

After a bench trial, Carroll was convicted of six counts of passing a bad check and one count of forgery. At a second bench trial on the same day, she was convicted of three counts of passing a bad check. She was sentenced to five years' imprisonment on each bad check count and seven years on the forgery count. All the sentences are concurrent. Carroll appeals.

The evidence is not sufficient to support the first six bad check counts, and the judgment as to those counts is reversed, and the case is remanded. The judgments as to the forgery count and as to the last three bad check counts are affirmed.

Rule 27.01(b) provides that the findings of the trial court shall have the force and effect of a jury. Therefore, appellate review is as though a jury has returned a verdict of guilty. If there is substantial evidence to support the findings of the trial court, its judgment is to be affirmed. In determining the sufficiency of the evidence in a criminal case after a verdict of guilty, the Court accepts as true all evidence in the record tending to prove the defendant's guilt together with inferences favorable to the state that can be reasonably drawn therefrom. The Court disregards all contrary evidence and inferences. State v. Giffin, 640 S.W.2d 128, 130 (Mo. 1982)

The evidence supports the following. Carroll opened a checking account at Senath State Bank on August 26, 1996. On February 19, 1997, Carroll's account fell into a negative balance and never came above a negative balance through the end of June 1997. Around April 10, 1997, Senath State Bank "closed" the account. Nevertheless, Carroll received "bank statements" from Senath State Bank each month from February through July 1997. On February 19, 1997, the balance in the account was "minus" $135.76. The balance "starting April [1997] was minus $475.76." On June 9, 1997, the balance was "minus $595." None of these statements showed the account had been "closed." In July 1997, the bank accepted three deposits that were added to the account. At some point that month, the account had about a $1500 positive balance. Checks were paid from the account that month. After July 1997, Carroll's account again went into the negative numbers. It remained that way until Senath State Bank "closed" it, again, in April 1998. After that, there were no further transactions.

Count I of the information alleged that Carroll committed the class D felony of passing a bad check "in that on or about the 14th day of May, 1997 . . . the defendant, with the purpose to defraud, passed a check in the amount of $55.00, drawn upon a nonexistent account with the Senath State Bank, and payable to Wallace & Owens, knowing that such check would not be paid." The next five bad check counts were pleaded identically except for the date the check was passed, the amount thereof, and the payee.

Before the prosecutor filed the first case, his secretary mailed Carroll a "10-day notice" regarding each check on which these counts were based. Each notice warned Carroll that if she did not pay the check to which the notice pertained within ten days, the prosecutor would "file charges." All notices were addressed to 913 Starnes, Kennett, Missouri, the address printed on the checks. The mailing dates are: June 17, 1997; September 12, 1997; June 20, 1997; July 8, 1997; June 23, 1997, and June 20, 1997. The notices were not returned to the prosecutor's office.

Carroll did not respond within ten days after any notice. A letter from Carroll postmarked December 23, 1997, was received inquiring about making restitution. On February 24, 1998, three money orders were received from Carroll and applied toward the checks.

Carroll attacks the sufficiency of the evidence as to these six counts in that the evidence is insufficient to support a finding that: (a) she had no account in Senath State Bank when she passed the checks or (b) she knew she no longer had an account at that time.

Carroll emphasizes that each of these counts alleges the check was "drawn upon a nonexistent account with the Senath State Bank." She notes that although the bank purportedly closed her account around April 10, 1997 (before any of these checks were written), there was no evidence that the bank notified her the account was closed. Because each check was less than $150, each would constitute only a class A misdemeanor under section 570.120.4 unless Carroll "had no account with the drawee" at the time she passed them.

The testimony of Senath State Bank's cashier establishes that the bank "closed" Carroll's account around April 10, 1997. Furthermore, these checks were returned to the respective payees marked "ACCOUNT CLOSED." The evidence, however, also supports that Carroll continued to receive monthly statements from Senath State Bank after April 1997; that the bank accepted deposits to her account in July 1997; that the account had "about a $1500 positive balance" during that month; and that checks were paid from the account that month. Because of the latter evidence, Carroll asserts there was no proof beyond a reasonable doubt that she had no account with Senath State Bank when she passed these checks.

This case is not one where an accused drew a check on a bank where she never had an account. Carroll opened an account at Senath State Bank on August 26, 1996, and continued to receive monthly statements from the bank through July 1997, the month after she passed the last of these checks. Although the cashier testified the bank closed Carroll's account around April 10, 1997, the conduct of the bank in continuing to send Carroll monthly statements thereafter belies the notion that Carroll had no account after April 10. Furthermore, the deposits in July 1997 - the month Carroll's account reached "about a $1500 positive balance" - were evidently credited to the account Carroll had opened August 26, 1996 - not to a new account created to receive those deposits.

The burden to prove beyond a reasonable doubt that Carroll had no account with Senath State Bank when she passed these checks was on the state. The evidence was insufficient to satisfy that burden. As the evidence was insufficient in that regard, it was insufficient to demonstrate Carroll knew she no longer had an account. The judgment as to these six counts is reversed.

Carroll also attacks the sufficiency of the evidence in that section 570.120.1(1)² requires the state to prove Carroll passed the checks with the purpose to defraud, knowing they would not be paid by Senath State Bank. Carroll maintains the evidence was insufficient to establish those elements. Although she offered evidence seeking to explain the negative balances, the trial court was not required to believe it. A reviewing court does not undertake to determine the credibility of witnesses or weigh the evidence; rather a reviewing court will defer to the trial court's superior position from which to determine the credibility of the witness. State v. Blankenship, 830 S.W.2d 1, 16 (Mo. banc 1992).

The trial court could have reasonably found from the evidence, beyond a reasonable doubt, that: (a) during the period from February 19, 1997, through June 30, 1997, there were no funds in Carroll's account, and (b) during the period when Carroll passed the checks - May 14, 1997, through June 8, 1997 - Carroll knew from having received the "bank statements" that there were no funds in her account from which any of those checks could be paid. Issuing a check with knowledge there are insufficient funds in the account is sufficient evidence of fraudulent intent to make a submissible case...