State v. Harmon

• Court: Court of Appeal of Louisiana
• Writing for the Court: WINDHORST, J.
• Citation: State v. Harmon, 301 So.3d 1278 (La. App. 2020)
• Decision Date: 09 September 2020
• Docket Number: NO. 19-KP-570,19-KP-570
• Parties: STATE of Louisiana v. Nicolva A. HARMON

301 So.3d 1278

STATE of Louisiana

v.Nicolva A. HARMON

NO. 19-KP-570

Court of Appeal of Louisiana, Fifth Circuit.

September 09, 2020

COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Thomas J. Butler

COUNSEL FOR DEFENDANT/RELATOR, NICOLVA A. HARMON, Leloashia Taylor

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst

WINDHORST, J.

Defendant, Nicolva A. Harmon, seeks review of her conviction and sentence for issuing a worthless check. For the reasons stated herein, we affirm defendant's conviction and sentence and remand with instructions.

PROCEDURAL HISTORY

On August 24, 2017, the Jefferson Parish District Attorney filed a bill of information, charging defendant, Nicolva A. Harmon, with issuing a worthless check, in violation of La. R.S. 14:71, "in that she did issue a worthless check to Ray Brandt Nissan in the amount of $1,317.22." On November 2, 2018, the bill of information was amended, charging defendant with issuing a worthless check "in an amount less than $1,000.00," in violation of La. R.S. 14:71.

On December 4, 2018, defendant filed a motion to quash the bill of information, which the trial court denied. On December 17, 2018, the trial court held a bench trial and found defendant guilty as charged. Defendant was sentenced on January 14, 2019.

Defendant appealed her conviction and sentence. Upon supervisory review, this Court on May 22, 2019 reversed defendant's conviction, vacated defendant's sentence, and remanded the matter to the trial court for further proceedings. This Court found that as charged in the amended bill of information, defendant was entitled to a trial by judge or jury; however, defendant was not advised of her right to a jury trial before proceeding to a bench trial.

On June 17, 2019, the bill of information was amended again to charge defendant with issuing a worthless check "in an amount less than $500.00, class ‘4’ misdemeanor," in violation of La. R.S. 14:71.

On October 25, 2019, defendant filed another motion to quash the bill of information, which the trial court denied. Thereafter, the trial court held a bench trial and found defendant guilty as charged.

The trial court sentenced defendant to six months imprisonment in the Jefferson Parish Correctional Center, suspended, and placed defendant on twelve months active probation with forty hours of community service to be performed within the first ninety days of her probation. Defendant was further ordered to pay "court costs and fines" in the amount of $599.50, $125.00 commissioner fund fee, $2.00 indigent transcript fee, and a monthly $80.00 probation supervision fee. The trial court also ordered defendant to pay restitution in the amount of $1,317.22 to Ray Brandt Nissan in six equal payments.

Defendant filed a notice of intent seeking supervisory review of her conviction and sentence, which the trial court granted. This writ application followed.

FACTS

The following uncontradicted facts were elicited at trial. Defendant purchased an automobile from Ray Brandt Nissan ("Ray Brandt") in Harvey, Louisiana, on January 27, 2017. Subsequently, on or about March 3, 2017, defendant contacted Ray Brandt requesting assistance in changing her vehicle registration from Mississippi to Louisiana. Although Ray Brandt does not normally offer services for title work on previously purchased vehicles, it agreed to provide defendant with this service because she was a prior customer and a "military person." The taxes and fees are higher to title a vehicle in Louisiana and defendant agreed to pay the difference. She signed check No. 1068 to Ray Brandt for $1,317.22 on March 3, 2017. In return, Ray Brandt registered her vehicle in Louisiana.

Craig Pesses, the Finance Director for Ray Brandt at the time of the offense, testified that his company's records reflected that check No. 1068, dated March 3, 2017, was deposited on March 22, 2017 and a receipt was issued. Mr. Pesses testified that the delay of over two weeks from March 3 to March 22, 2017 was due to (1) a processing delay in the title department because title work for previously purchased vehicles does not take priority over requests for title work by customers at the time of sale of newly purchased vehicles; or (2) defendant requesting that the check be held until a specific date. He testified that if a customer requests a check to be held and it is approved, then documentation of the hold would be placed in the file. However, he did not recall defendant requesting Ray Brandt to "hold" the check and there was no documentation in defendant's file that a check "hold" request was made by defendant. After the check was presented to defendant's bank, it was returned unpaid to Ray Brandt on March 28, 2017, for insufficient funds in defendant's personal checking account.

Mr. Pesses testified that Ray Brandt completed the UCC-1 form for defendant's vehicle registration in Louisiana. He stated that the completed UCC-1 form is required for processing a vehicle's registration in Louisiana. He testified that the form does not show the vehicle's registration; rather, it shows the intent of the dealership to register the vehicle. However, Mr. Pesses testified that based on his personal knowledge, defendant's vehicle was registered in Louisiana. Defendant did not present any contradictory evidence that the vehicle was not registered. He denied any discussions with defendant about not charging her title, taxes, and license fees because she was in the military.

Shantell Barrios, office manager for Ray Brandt, testified that when the check was returned due to insufficient funds, Ray Brandt attempted to collect the debt by sending a demand letter via certified mail, for which defendant signed on April 24, 2017. After more than thirty days during which defendant did not contact Ray Brandt, Ray Brandt provided the information to the Jefferson Parish District Attorney's Office ("the D.A.’s office") on May 31, 2017 to handle collection and/or prosecution. The D.A.’s office notified defendant through at least two mailings of the worthless check, and demanded payment of the debt on behalf of Ray Brandt within ten days from the date of the letters. Defendant did not contact the D.A.’s office to pay the debt.¹

The defense presented the testimony of Betty Koenig, an administrative assistant in the D.A.’s office's worthless check section. Ms. Koenig testified that she received defendant's file, which contained the returned check, a signed certified green card, and an affidavit, via mail correspondence from Ray Brandt. She further testified that the D.A.’s office does not typically charge a defendant with the crime of worthless checks if a check was held. However, she conceded that she was not an attorney and in questionable cases, she would refer the case to the district attorney who would make that determination.

At the conclusion of the trial, the trial court found defendant guilty of issuing a worthless check in violation of La. R.S. 14:71, finding:

The State is required to prove that a check was issued for something of value. The State has proven that element beyond a reasonable doubt.

Something of value. The check was issued in exchange for the registration of her car and the change of title from Mississippi to Louisiana. The statute further states that the exchange does not have to be contemporaneous with the issuing of the check. In this case it certainly was not.

The intent to defraud is satisfied by the presumption that after ten days after having been noticed of non-payment of the check by certified mail, the check was not satisfied. It is a presumptive evidence of the intent to defraud.

DISCUSSION

In her first, second, fourth, and fifth assignments of errors, defendant argues that there was insufficient evidence to find that she issued a worthless check in violation of La. R.S. 14:71.² Defendant contends that although all the elements of issuing a worthless check must be proven, jurisprudence has placed a stronger emphasis on whether the defendant issued a worthless check with the intent to defraud. She contends the State failed to prove this element. Defendant asserts that the State relied upon the presumptive intent to defraud provided in the statute. However, she contends that Mr. Pesses’ testimony shows that Ray Brandt held the check, which is sufficient to rebut the presumption of intent to defraud. She argues that jurisprudence establishes that held checks do not constitute an intent to defraud because the alleged victim was put on notice that the check could not be paid at the time of issuance. Defendant also contends the State failed to establish she issued a check in exchange for something of value where there was no evidence that Ray Brandt sent any payment to the State of Louisiana for the registration of her vehicle. Defendant further asserts the State produced no evidence to establish that she knew she did not have sufficient credit with her banking institution to pay the check at the time of its issuance since no bank statements were introduced. Lastly, defendant argues the State failed to prove the crime charged because it used a check in excess of the amount charged.

The standard of review for determining the sufficiency of the evidence is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt, but whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution. State v. Flores, 10-651 (La. App. 5 Cir. 5/24/11), ...