State v. McWilliams

• Decision Date: 20 February 2008
• Docket Number: No. 05-168.,05-168.
• Parties: STATE of Montana, Plaintiff and Appellee, v. Chris J. McWILLIAMS, Defendant and Appellant.
• Court: Montana Supreme Court

178 P.3d 121

2008 MT 59

341 Mont. 517

STATE of Montana, Plaintiff and Appellee, v. Chris J. McWILLIAMS, Defendant and Appellant.

No. 05-168.

Supreme Court of Montana.

Submitted on Briefs January 11, 2006.

Decided February 20, 2008.

For Appellant: Stephen R. McCue, Debt Relief Law, Helena, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, Mark W. Mattioli, Assistant Attorney General, Helena, Montana Brett Linneweber, Park County Attorney, Livingston, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Chris McWilliams appeals his conviction in the District Court for the Sixth Judicial District, Park County, of issuing bad checks, a felony. We affirm.

¶ 2 McWilliams raises four issues on appeal which we have restated as follows:

¶ 3 1. Whether the District Court erred in denying McWilliams' pretrial motion to dismiss the Information charging him with issuing bad checks.

¶ 4 2. Whether the District Court erred in denying McWilliams' motion for a directed verdict at the close of the State's case-in-chief.

¶ 5 3. Whether the District Court erred in denying McWilliams' motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

¶ 6 4. Whether the District Court erred in sentencing McWilliams to pay restitution of sums that had been discharged by his bankruptcy proceeding.

Factual and Procedural Background

¶ 7 A jury convicted McWilliams of issuing bad checks to Larry Johns, d/b/a Big Sky Consignment, and Robert Curry, d/b/a Curry and Sons Electric. The facts surrounding the issuing of those checks are as follows.

¶ 8 In April 2001, McWilliams, d/b/a C & L Construction, agreed to construct a home for Dennis and Gwendolyn Noyes (the Noyeses) for the amount of $146,529.00. The construction was to be financed by a loan from Empire Bank in Livingston. The loan was initially approved in the amount of $169,000.00.

¶ 9 McWilliams had a business arrangement with Johns wherein McWilliams obtained a series of short term loans from Johns for $1,000.00 each. At the time of each loan, McWilliams gave Johns a check for $1,250.00. The checks were postdated to the date that repayment of the loan was due (typically 20 to 30 days after each loan was made). The additional $250.00 in each check was considered interest on the loan. In addition, with each loan, McWilliams and Johns executed a handwritten agreement wherein McWilliams agreed to convey to Johns the security interest in a flatbed trailer if the loan was not repaid in full. Johns made the last of these loans to McWilliams on December 26, 2001. In payment of that loan, McWilliams wrote Johns a check for $1,250.00 and postdated it for January 16, 2002.

¶ 10 McWilliams hired Curry as a subcontractor to do the electrical wiring on the Noyeses' home. Curry completed the rough-in wiring on the home in September or October 2001, and the finish electrical work in November or December 2001. On January 7, 2002, McWilliams went to Curry's home and wrote him a check in the amount of $4,920.64 for the electrical work on the Noyeses' home. Curry testified at trial that McWilliams told him that there currently were insufficient funds in the account to cover the check. McWilliams testified at trial that he wrote the check to Curry because he expected to receive a substantial final payment for the construction of the Noyeses' home within a few days.

¶ 11 McWilliams's wife, Angela, testified that on January 8, 2002, she heard a rumor that the Noyeses were not going to make the final payment for the construction of the home. Angela further testified that after several unsuccessful attempts to contact Dennis Noyes, they decided that Angela should seek the advice of someone from their bank. Angela visited the bank on January 9, 2002. She testified that she was advised that a stop payment was better than an insufficient funds check, hence she stopped payment on both the check to Johns for $1,250.00 and the check to Curry for $4,920.64.

¶ 12 McWilliams and his wife had filed for Chapter 13 bankruptcy in May 1997. On January 24, 2002, they converted their Chapter 13 bankruptcy action to a Chapter 7. That same day, McWilliams was arrested on charges based upon allegations of another unpaid subcontractor who subsequently was paid. McWilliams was released the following day. One of the conditions of his release was that he close all of his checking accounts.

¶ 13 On January 31, 2002, Dennis Noyes contacted the Park County Sheriff's Department to file a complaint against McWilliams for theft in relation to various issues that had arisen in the construction of the home. At about the same time, Johns and Curry each brought complaints against McWilliams in relation to the check transactions described above.

¶ 14 In February 2002, the State brought criminal charges against McWilliams for theft and issuing bad checks. McWilliams was arrested on February 21, 2002, on these charges and released the same day. On April 29, 2002, McWilliams filed a motion to dismiss the Information charging him with issuing bad checks. The District Court denied the motion in writing but without written comment.

¶ 15 McWilliams received his Chapter 7 discharge in bankruptcy on May 14, 2002. Thereafter, McWilliams and his wife moved to Oregon. McWilliams alleged that Park County Attorney Tara DePuy had full knowledge of his move and that the District Court had given permission for the move. He further alleged that he advised the court of his address in Oregon and how to contact him.

¶ 16 On July 13, 2004, McWilliams was arrested in Deschutes County, Oregon, on a "Fugitive Information" issued by the Deschutes County District Attorney's Office based upon a teletype from DePuy. Trial was held in the Park County District Court from November 30, 2004 to December 2, 2004. At the close of the State's case-in-chief, McWilliams' counsel moved to dismiss the charges against McWilliams contending that the State had failed to meet its burden of proof. The District Court corrected counsel calling it a motion for a directed verdict and counsel agreed. The District Court denied the motion.

¶ 17 The jury acquitted McWilliams of the theft charge and found him guilty of the charge of Issuing Bad Checks, common scheme, a felony, in violation of § 45-6-316, MCA. Thereafter, McWilliams moved the court for judgment notwithstanding the verdict or, in the alternative, for a new trial. In his motion, McWilliams requested that, pursuant to § 46-16-702(3)(c), MCA, the court modify the jury's verdict by finding him not guilty on the charge of issuing bad checks. In the alternative, McWilliams requested that, pursuant to § 46-16-702(3)(b), MCA, the court grant him a new trial. The court denied McWilliams' alternative motions. The court subsequently deferred imposition of McWilliams' sentence for four years subject to various terms and conditions including that he pay restitution, that he not possess a checking account unless approved by his probation officer, and that he perform 100 hours of community service each year.

¶ 18 McWilliams appealed the various orders and judgment of the District Court, and requested a stay of the sentence pending appeal, which the court granted.

Issue 1.

¶ 19 Whether the District Court erred in denying McWilliams' pretrial motion to dismiss the Information charging him with issuing bad checks.

¶ 20 Shortly after the State filed the Information alleging that McWilliams committed the offense of issuing bad checks, McWilliams moved to dismiss the charge on the grounds that the series of transactions with Johns was an illegal series of deferred deposit loans within the meaning of Montana's Deferred Deposit Loan Act (the Act), Title 31, chapter 1, part 7, Montana Code Annotated. In addition, McWilliams argued that the check to Curry was also a deferred deposit loan as defined in § 31-1-703(5)(a), MCA. McWilliams contended that he could not be criminally prosecuted for issuing those checks based on § 31-1-723(2), MCA, which provides that a licensee making deferred deposit loans may not threaten to use a criminal process to collect on the loan made to a consumer in this State. The District Court denied his motion. McWilliams contends that the District Court erred and he renews these arguments on appeal.

¶ 21 The State argues that whether the loan to McWilliams from Johns violated the Act is a civil matter between McWilliams and Johns, and the Act does not foreclose the State from prosecuting a bad check case. In addition, the State argues that McWilliams' suggestion that the check to Curry constituted a deferred deposit loan is completely frivolous as the Act applies to loan arrangements and Curry was not a lender.

¶ 22 The denial of a motion to dismiss in a criminal case is a question of law and we review a district court's conclusions of law to determine whether those conclusions are correct. State v. Tichenor, 2002 MT 311, ¶ 18, 313 Mont. 95, ¶ 18, 60 P.3d 454, ¶ 18 (citing State v. Hocevar, 2000 MT 157, ¶ 115, 300 Mont. 167, ¶ 115, 7 P.3d 329, ¶ 115; State v. Weaver, 1998 MT 167, ¶ 43, 290 Mont. 58, ¶ 43, 964 P.2d 713, ¶ 43).

¶ 23 The statute McWilliams relies on to support his contention that he cannot be criminally prosecuted for issuing the checks to Johns and Curry provides in pertinent part:

Prohibited acts. A licensee making deferred deposit loans may not commit, or have committed on behalf of the licensee, any of the following prohibited acts:

. . . .

(2) threatening to use or using a criminal process in this or any other state to collect on the loan made to a consumer in this state or any civil process to collect the payment of deferred deposit loans not generally available to creditors to collect on loans in default.... [Emphasis added.]

Section 31-1-723, MCA. McWilliams fails to recognize that neither Johns nor Curry are licensees under this Act.

¶ 24 In addition, McWilliams relies on § 30-3-104, MCA, the statute...