State v. Carroll
| Decision Date | 10 August 2000 |
| Docket Number | SD23151 |
| Parties | State of Missouri, Respondent, v. Freada P. Carroll, Appellant. 23151 and 23153 Missouri Court of Appeals Southern District 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Pemiscot County, Hon. Fred W. Copeland
Counsel for Appellant: Craig Johnston
Counsel for Respondent: Karen L. Kramer
Opinion Summary: None
These consolidated appeals arise from two criminal cases in the Circuit Court of Pemiscot County: number CR398-4F ("the first case") and number CR399-3F ("the second case"). The trial court heard the evidence in both cases the same day, without a jury.
In the first case, the court found Appellant guilty of six felony counts of passing a bad check and one felony count of forgery. The court sentenced Appellant to five years' imprisonment on each of the bad check counts and seven years' imprisonment on the forgery count, running all sentences concurrently. Appellant brings Appeal 23151 from that judgment.
In the second case, the court found Appellant guilty of three felony counts of passing a bad check. The court sentenced Appellant to five years' imprisonment on each count, running the sentences concurrently. The court further ordered those sentences to run concurrently with the sentences in the first case. Appellant brings appeal 23153 from the judgment in the second case.
Each of the nine bad check counts alleged Appellant violated section 570.120, RSMo 1994. It reads, in pertinent part:
"1. A person commits the crime of passing a bad check when:
(1) With purpose to defraud, he makes, issues or passes a check . . . knowing that it will not be paid by the drawee . . . or
(2) He makes, issues, or passes a check . . . knowing that there are insufficient funds in his account or that there is no such account . . . and fails to pay the check . . . within ten days after receiving actual notice in writing that it has not been paid because of insufficient funds or credit with the drawee . . . .
. . . .
4. Passing bad checks is a class A misdemeanor, unless:
As shall appear more fully infra, Appellant maintains the evidence was insufficient to support a finding of guilty of any count in either case.
Under Art. I, section 22(a), Mo. Const. (1945), and Rule 27.01(b), Missouri Rules of Criminal Procedure (2000), a trial court's findings in a judge-tried criminal case have the force and effect of a jury verdict. State v. Northern, 472 S.W.2d 409, 411 (Mo. 1971). Consequently, this court reviews these cases as though a jury had returned verdicts of guilty. State v. Giffin, 640 S.W.2d 128, 130[1] (Mo. 1982). In determining the sufficiency of the evidence to support the convictions, this court accepts as true all evidence tending to prove guilt, together with inferences favorable to the State that can be reasonably drawn therefrom, and disregards all contrary evidence and inferences. Id. at 130[2]. This court does not weigh the evidence, State v. Wilson, 846 S.W.2d 796, 797[2] (Mo.App. S.D. 1993), but determines only whether there was sufficient evidence from which the trial court could have reasonably found Appellant guilty beyond a reasonable doubt. State v. Falcone, 918 S.W.2d 288, 290[4] (Mo.App. S.D. 1996).
This opinion addresses each appeal separately.
Two of the three points relied on in Appellant's brief pertain to this appeal. The first of those is point I, which reads:
"The trial court erred in overruling [Appellant's] motions for judgment of acquittal as to [the six bad check counts] in [the first case], and in sentencing her upon her convictions for passing `no account' checks, because there was insufficient evidence to prove her guilt beyond a reasonable doubt as required by the due process clauses under the 5th and 14th Amendment to the United States Constitution and Article I, section 10 of the Missouri Constitution, in that the State did not establish beyond a reasonable doubt that: (1) [Appellant] had the purpose to defraud when she passed the checks; and, (2) that she had `no account' or knew that she no longer had an account; or that at the time she passed the checks that she knew that they would not be paid."
The evidence established that Appellant opened a checking account at Senath State Bank on August 26, 1996. The cashier at Senath State Bank testified that on February 19, 1997, Appellant's account "fell into a negative balance" and never "[came] above a negative balance" through the end of June 1997. The cashier added that around April 10, 1997, Senath State Bank closed the account. However, the cashier conceded that "in July of 1997 there were three deposits" 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, Appellant's account again went "into the negative numbers." It remained that way until Senath State Bank closed it in April 1998. After that, there were no further transactions.
Count I of the information alleged, inter alia, that Appellant, in Dunklin County,1 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."
Evidence favorable to the State regarding Count I showed that on May 14, 1997, Appellant, as drawer, signed a $55 check drawn on Senath State Bank, payable to "W & O," and passed it to Lori Dudie, an office clerk employed by "Wallace & Owens." The check was subsequently returned, marked "ACCOUNT CLOSED."
The remaining five bad check counts (Counts II through VI) were pled identically to Count I except for the date the check was passed, the amount thereof, and the payee. Evidence regarding those checks, count-by-count, was as follows.
Count II. On May 20, 1997, Appellant, as drawer, signed a $42.20 check drawn on Senath State Bank, payable to "Texaco," and passed it to Paul Richard Potts, assistant manager of the payee. Potts wrote "PEDTF" on the check, indicating he, by some method unrevealed in the record, confirmed Appellant had "a real bank account." However, the check was returned, marked "ACCOUNT CLOSED."
Count III. On June 3, 1997, Appellant, as drawer, signed a $22 check drawn on Senath State Bank, leaving the payee line blank, and passed it to Alma Morgan, an employee of "U-Save Mart." The check was subsequently returned, marked "ACCOUNT CLOSED."
Count IV. On June 3, 1997, Appellant, as drawer, signed a $30 check drawn on Senath State Bank, leaving the payee line blank, and passed it to Peggy Bledsoe, an employee of "Vancil's IGA." The check was subsequently returned, marked "ACCOUNT CLOSED." Four months earlier, in February 1997, Appellant had passed two other checks to Bledsoe, one dated February 7, 1997, the other dated February 8, 1997. Both were returned "insufficient funds." No count in either the first or second case was based on either of those checks.
Count V. On June 6, 1997, Appellant, as drawer, signed a $29.47 check drawn on Senath State Bank, leaving the payee line blank, and passed it to Angela Barnes, an employee of "Dixie Grocery and Package." The check was subsequently returned, marked "ACCOUNT CLOSED."
Count VI. On June 8, 1997, Appellant, as drawer, signed a $15 check drawn on Senath State Bank, leaving the payee line blank, and passed it to Paula Joy Umfress, an employee of "U-Save Mart." The check was subsequently returned, marked "ACCOUNT CLOSED."
Before the prosecutor filed the first case, a secretary employed by him mailed Appellant a "10-day notice" regarding each check on which Counts I through VI were ultimately based. Each notice warned Appellant 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 regarding the checks on which Counts I through VI were based were as follows. Count I: June 17, 1997. Count II: September 12, 1997. Count III: June 20, 1997. Count IV: July 8, 1997. Count V: June 23, 1997. Count VI: June 20, 1997. The secretary assumed Appellant received the notices because they were not returned to the prosecutor's office.
The secretary received no response from Appellant within ten days after any notice. However, the secretary eventually received a letter from Appellant postmarked December 23, 1997, "inquiring about making restitution."
On February 24, 1998, the secretary received "three money orders" from Appellant and applied them toward the checks.2
Appellant testified she received "bank statements" from Senath State Bank each month from February through July 1997. That testimony was corroborated by the bank's cashier. The cashier identified "bank statements" for Appellant's account for the months of February through May 1997.3 The cashier also identified a "monthly bank statement" for Appellant's account for July 1997.4
Appellant testified none of the statements showed her account had been closed. That testimony was uncontradicted. According to Appellant, she learned in April 1998 that her account would be closed May 28, 1998. She denied knowing it was closed "sooner than that." Appellant avowed she had a "direct deposit from Social Security" going into her account until April 1998, hence when she wrote checks, she expected the money to be there.
On cross-examination, Appellant admitted that on February 19, 1997, the balance in her account was a "minus" $135.76. The balance "starting April [1997] was minus $475.76." On June 9, 1997, the balance...
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