State v. Williams, SD 33476
Decision Date | 20 August 2015 |
Docket Number | No. SD 33476,SD 33476 |
Parties | State of Missouri, Plaintiff–Respondent, v. Dennis Lynn Williams, Defendant–Appellant. |
Court | Missouri Court of Appeals |
Attorney for Appellant: Casey A. Taylor of Columbia, MO
Attorney for Respondent: Kenneth R. Ashlock, of Bolivar, MO
Following a bench trial, Dennis Williams (Defendant) was found guilty of passing a bad check and sentenced to serve 60 days in jail. See § 570.120.1 Defendant presents two points for decision. In Point I, Defendant contends the evidence was insufficient to prove that he received actual notice in writing that his check had not been paid. In Point II, Defendant contends the evidence was insufficient to prove that he passed the check knowing his account did not have sufficient funds. Defendant's first point has merit and is dispositive. The judgment is reversed, and Defendant is ordered discharged.
In relevant part, the State's misdemeanor information charged Defendant with violating § 570.120 because he:
passed a check in the amount of $50.00, drawn upon [Liberty Bank], payable at [Hannah's], knowing that there were insufficient funds in or on deposit in his account, and the defendant failed to pay the check within ten days after receiving actual notice in writing that it had not been paid because of insufficient funds in or on deposit with Liberty Bank.
(Italics added.)2 This allegation charged a violation of § 570.120.1(2).
At trial, the State's first witness was Melisa Twedell. She was the Hannah's clerk who took check number 3033 in the amount of $50 from Defendant. That check was later returned unpaid due to insufficient funds. The only other witness was Sunshine Wolfe, the Polk County bad check administrator and misdemeanor clerk. Wolfe testified that she received a bad check referral concerning Defendant and sent a standard ten-day letter to the address listed on the returned check by regular mail. This form letter informs the recipient about: (1) any checks that have been submitted; (2) the check numbers; (3) the victim's name; (4) the dollar amounts; (5) a grand total of all monies owed; and (6) the ten-day time period to pay before criminal charges could be filed. The form letter envelope is “stamped for return address if it's not deliverable.” The letter mailed to Defendant was not returned to Wolfe. Check number 3033 and a copy of the ten-day notice letter were admitted in evidence as Exhibits 1 and 2.
After the presentation of evidence concluded, the court had a discussion with counsel about the proof requirements in § 570.120.1(2) concerning notice to Defendant. The court made an oral finding that: (1) the information in the ten-day letter was not included in the summons or warrant served on Defendant; and (2) there was no evidence Defendant willfully avoided notice. The court also made an oral finding that “there's insufficient evidence to believe or to establish that [Defendant] actually received notice in written form through the post office.” As the court explained:
So without proof that Mr. Williams actually received it—I mean, I understand the prosecutor's office mailed it. I understand it didn't come back. But it could have also gone to somebody else's mailbox or something like that. Who knows? But the Court finds that that goes towards the weight of the evidence presented against Mr. Williams. It's not the sufficiency of the evidence.
The court found Defendant guilty and imposed a 60–day sentence. This appeal followed.
An appellate court's role in reviewing the sufficiency of the evidence to support a criminal conviction is limited to determining whether there was sufficient evidence from which a reasonable fact-finder could have found each element of the offense to have been established beyond a reasonable doubt. State v. Long, 417 S.W.3d 849, 855 (Mo.App.2014). In Point I, Defendant contends the evidence was insufficient to support his conviction because the State failed to prove that Defendant received actual notice in writing that his check had not been paid due to insufficient funds.
Defendant was charged with violating subdivision 2 of § 570.120.1. The relevant portions of the statute are set out below.
§ 570.120.1(2)-.2 (bold emphasis added).
By electing to charge Defendant with a violation of § 570.120.1(2), one of the elements that the State had the burden to prove was that Defendant failed to pay the check “within ten days after receiving actual notice in writing that it had not been paid because of insufficient funds or credit with the drawee....” Id. As stated in § 570.120.2, the phrase “actual notice in writing” is explicitly defined to mean “notice of nonpayment which is actually received by the defendant.” Id. This subsection then lists two permissible, nonexclusive means by which actual notice may be proven.3 The first is the inclusion of specific information about the ten-day time period in the summons or warrant served upon the defendant. Id. The second is a written communication tendered to and refused by the defendant. Id. The court found that the State failed to prove that Defendant actually received the ten-day letter. The court also found that the State did not prove Defendant received actual notice by either of the means set out in § 570.120.2. The trial court erred, however, by concluding that this failure of proof went to the weight, rather than the sufficiency, of the State's evidence.
The State concedes that it failed to prove Defendant received the ten-day notice letter, but it argues that “proof of notice is not an essential element of the crime of passing a bad check.” To support that argument, the State relies upon Wilson v. State, 755 S.W.2d 324 (Mo.App.1988) and State v. Kaufman, 308 S.W.2d 333 (Mo.App. 1957). Because both of those cases involved statutory language far different than the case at bar, the State's argument is unpersuasive.
Section 570.120 was initially enacted in 1977 and became effective on January 1, 1979. See § 570.120 RSMo (1986). In relevant part, that version of the statute stated:
§ 570.120.1, . 3–.4 RSMo (1986). Wilson, which addressed this prior version of the statute, held that:
Ten days' notice is not an essential element of the offense. If a check is not paid within ten days after notice that it has been dishonored, § 570.120.3 allows a presumption of fraudulent intent and knowledge the check would not be paid. § 570.120.3, RSMo 1986; see State v. Kaufman, 308 S.W.2d 333, 338 (Mo.App.1957). The State was free to prove fraudulent intent and knowledge by movant that the check would not be paid without availing itself of § 570.120.3.
Kaufman dealt with even earlier versions the...
To continue reading
Request your trial-
Dolic v. Barr
...not be paid by the drawee" and that "the evidence is sufficient to establish those elements " (emphasis added)); State v. Williams , 469 S.W.3d 6, 9 (Mo. Ct. App. 2015) ("By electing to charge Defendant with a violation of § 570.120.1(2), one of the elements that the State had the burden to......
-
State v. Ingalsbe
...State v. Nash , 339 S.W.3d 500, 508-09 (Mo. banc 2011) ; State v. Bateman , 318 S.W.3d 681, 686-87 (Mo. banc 2010) ; State v. Williams , 469 S.W.3d 6, 8 (Mo. App. 2015). In reviewing the sufficiency of the evidence, all evidence favorable to the State is accepted as true, including all favo......
-
State v. Burpo
... ... acquittal on the possession charge. See Clark, 490 ... S.W.3d at 706; State v. Williams, 469 S.W.3d 6, 7 ... (Mo. App. 2015); Rule 29.07(c) (if a defendant is found not ... guilty or for any other reason is entitled to be ... ...
-
State v. Tilton
...doubt. State v. Nash, 339 S.W.3d 500, 508-09 (Mo. banc 2011); State v. Bateman, 318 S.W.3d 681, 686-87 (Mo. banc 2010); State v. Williams, 469 S.W.3d 6, 8 App. 2015). In reviewing the sufficiency of the evidence, all evidence favorable to the State is accepted as true, including all favorab......