State v. McConnell

• Decision Date: 06 September 1984
• Docket Number: No. 55955,55955
• Citation: 688 P.2d 1224,9 Kan.App.2d 688
• Parties: STATE of Kansas, Appellee, v. William E. McCONNELL, Appellant.
• Court: Kansas Court of Appeals

Page 1224

688 P.2d 1224

9 Kan.App.2d 688

STATE of Kansas, Appellee, v. William E. McCONNELL, Appellant.

No. 55955.

Court of Appeals of Kansas.

Sept. 6, 1984.

Order Published Oct. 2, 1984.

Review Denied Nov. 9, 1984.

Syllabus by the Court

1. The worthless check statute, K.S.A. 21-3707, was intended "to stop the mischievous practice of overdrafting and 2. The gravamen of the offense of giving a worthless check is the act of putting a negotiable check into circulation with knowledge that sufficient funds of credit are not on deposit to pay the amount specified in the instrument. State v. Powell, 220 Kan. 168, 173, 551 P.2d 902 (1976).

'check-kiting' by the issuance of no fund checks." Foor v. State, 196 Kan. 618, 620, 413 P.2d 719 (1966).

3. K.S.A. 21-3707(2) provides that the State may establish a prima facie case of intent to defraud and of knowledge of the defendant that he or she lacked sufficient funds in the depository for payment of the check on presentation, by showing that the defendant drew the check, that the drawee refused to pay the check upon presentation because of insufficient funds, and that the drawer failed to make payment within seven days after notice of nonpayment. State v. Haremza, 213 Kan. 201, 515 P.2d 1217 (1973).

4. The statutory presumption created by K.S.A. 21-3707(2) can be rebutted by defendant's showing that he or she had a reasonable expectation that the check would be paid on presentation.

5. A lay witness may testify to his or her opinions or inferences if the judge finds those opinions or inferences (a) may be rationally based on the perception of the witness, and (b) are helpful to a clearer understanding of the witness' testimony. K.S.A. 60-456(a).

6. Evidence of other insufficient checks drawn by defendant may be admissible in a prosecution under K.S.A. 21-3707 as other crimes or civil wrongs under K.S.A. 60-455.

James S. Phillips, Jr., of Phillips & Phillips, Chartered, Wichita, for appellant.

James D. Hall, Asst. Dist. Atty., Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., for appellee.

Before BRISCOE, P.J., and ABBOTT and SWINEHART, JJ.

MEMORANDUM OPINION

SWINEHART, Judge.

Defendant William McConnell appeals his conviction for giving a worthless check (K.S.A. 21-3707), arguing error in certain evidentiary rulings.

On December 22, 1982, defendant wrote a check for $1,391.30 to G & L Garage in payment for various automobile repairs. At the time defendant delivered the check to George Bell, owner and operator of G & L Garage, he produced a deposit receipt showing that he had just made a deposit and stated that he had $1,500 in his checking account at Mid Kansas Federal Savings & Loan. After the check was returned to Bell for insufficient funds, he phoned defendant at work on January 12, 1983. Defendant assured Bell that arrangements would be made or he would call back. Bell phoned defendant a second time on January 16 about the check, and at that time defendant refused to pay, stating he was dissatisfied with the repairs. Defendant never paid the $1,391.30 automobile repair bill.

Defendant was brought to trial on the charge of giving a worthless check (K.S.A. 21-3707). The jury found him guilty and he was sentenced to one to two years imprisonment. Defendant appeals.

The first issue on appeal is whether the trial court committed prejudicial error when it excluded evidence related to defendant's reasons for withdrawing money from his checking account subsequent to December 22, 1982. The trial court sustained the State's motion in limine to disallow any testimony or evidence of defendant's complaint of the services rendered by G & L Garage. Defendant proffered at trial the testimony of two witnesses and himself on the various problems and defects found with the repairs. It was also argued that this evidence bore on defendant's intent to stop payment of the check indirectly by writing later checks which left insufficient funds to cover the check to G & L Garage. In support of this argument, defendant cited Hardeman v. State, 154 Ga.App. 364, 268 S.E.2d 415 (1980). The trial court correctly distinguished Hardeman as involving a different intent as to why the accused stopped payment of a check drawn on an account which had sufficient funds. In the present case, the intent of defendant at issue is adjudged at the moment the check was made and whether sufficient funds then existed.

The worthless check statute was intended "to stop the mischievous practice of overdrafting and 'check-kiting' by the issuance of no fund checks." Foor v. State, 196 Kan. 618, 620, 413 P.2d 719 (1966). The Kansas Supreme Court has stated:

"The gravamen of the offense of giving a worthless check as proscribed by K.S.A. 21-3707 is the act of putting a negotiable check into circulation with knowledge that sufficient funds or credit are not on deposit to pay the amount specified in the instrument. The offense is complete when such an instrument is issued with intent to defraud, and it is not necessary to show that the check was presented for payment at the drawee bank in order to prove the crime." State v. Powell, 220 Kan. 168, 173, 551 P.2d 902 (1976).

The accused's intent at the time the check is drawn and delivered is the intent in issue.

A rebuttable presumption as to intent and knowledge is defined in K.S.A. 21-3707(2), which provides:

"In any prosecution against the maker or drawer of a check, order or draft payment, of which has been refused by the drawee on account of insufficient funds, the making, drawing, issuing or delivering of such check shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or on deposit with, the drawee unless the maker or drawer pays the holder thereof the amount due thereon and a service charge not exceeding $3 for each check, within seven days after notice has been given to the maker or drawer that such check, draft or order has not been paid by the drawee. As used in this section, 'notice' includes oral or written notice to the person entitled thereto. Written notice shall be presumed to have been given when deposited as restricted matter in the United States mail, addressed to the person to be given notice at such person's address as it appears on such check, draft or order."

Through George Bell's testimony, the State presented the necessary evidence giving rise to this presumption.

This presumption can be rebutted by the showing of a reasonable expectation that the check would be paid upon presentation for payment. State v. Haremza, 213 Kan. 201, 205, 515 P.2d 1217 (1973). Defendant testified that before issuing the check to G & L Garage, he phoned the bank and asked for the balance of his account. The bank's recorded balance was apparently adequate for the check to clear. Defendant stated that he relied on this information and the fact that he had obtained two loans which were deposited in the McConnell Air Force Base Credit Union (AFB Credit Union). Defendant said he transferred $1,400 of these funds into Mid Kansas Federal Savings & Loan. The receipt from this transfer deposit was the one presented to G & L Garage when defendant delivered the check. As a rebuttal witness, the State called Bobby Platt, an employee with AFB Credit Union who handles new accounts. Ms. Platt testified with the aid of various bank records that defendant made no deposits in the amount of the loans which defendant said he had taken out.

The premise of defendant's argument on this issue is that sufficient funds existed on December 22, 1982, in the Mid Kansas Federal account to cover the check to G & L Garage. While the paper balance of the Mid Kansas Federal account indicated adequate funds, the actual balance was much lower as the deposited check from AFB Credit Union was returned for insufficient funds. Defendant could not have reasonably expected the check to G &amp L Garage to clear on presentation, since the deposit to Mid Kansas Federal was a check which lacked sufficient funds.

Defendant's reasons for writing checks after December 22, 1982, are irrelevant, and the State's prima facie showing of defendant's intent at the time he made and delivered the check was never rebutted. The balance of the Mid Kansas Federal account was insufficient to cover the G & L Garage check, regardless of the later checks written.

The evidence of defendant's complaints on the repairs was likewise irrelevant and would only have confused the jury as to the relevant intent and possibly converted a criminal trial into litigation of a consumer complaint. Such evidence was properly excluded.

Defendant next argues that the trial court erred in permitting a records clerk from Mid Kansas Federal to render opinions as to the alleged misleading nature of Mid Kansas Federal's records of defendant's checking account, thereby impairing defendant's right to a fair trial. Defendant refers to several instances during trial when Patricia Mears, a clerk for Mid Kansas Federal who handles insufficient fund checks, ostensibly gave her opinion over defendant's objection, resulting in a denial of a fair trial. The instances include: (1) From the various stamps upon the check, Ms. Mears testified as to when the check arrived at Mid Kansas Federal; (2) Ms. Mears said the records do not accurately reflect the deposits and credits actually "clearing through other channels"; (3) Ms. Mears agreed that an exhibit would aid in understanding her testimony; (4) Ms. Mears stated the defendant's check to G & L Garage would not have been covered by defendant's account during the period of December 14, 1982, to January 14, 1983; (5) Ms. Mears explained that the $1,464.36 balance of defendant's account on December 22, 1982, was the paper balance, and the actual or real balance was $264.36.

In the first instance, defendant objected on the ground that the exhibit speaks for itself, and in the fourth instance, defendant objected on the basis of an ...