Opinion
No. 23151 and 23153
August 10, 2000
Appeal From: Circuit Court of Pemiscot County, Hon. Fred W. Copeland.
No. 23151 AFFIRMED IN PART, REVERSED IN PART AND REMANDED; No. 23153 AFFIRMED.
Craig Johnston for appellant.
Karen L. Kramer for respondent.
Prewitt, J., and Barney, C.J., concur.
OPINION
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:
(1) The face amount of the check . . . is one hundred fifty dollars or more; or
(2) The issuer had no account with the drawee . . . at the time the check . . . was issued, in which cases passing bad checks is a class D felony."
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 (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 (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 (Mo.App.S.D. 1996).
This opinion addresses each appeal separately.
Appeal 23151
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, 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."
Both cases originated in Dunklin County and were transferred to Pemiscot County on change of venue.
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.
This court gathers from the record that the amounts of the money orders are shown on a document received in evidence as Exhibit 24. The exhibit has not been filed with this court. It is inferable that the money orders totaled less than the aggregate amount of the checks.
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. The cashier also identified a "monthly bank statement" for Appellant's account for July 1997.
The statements were received in evidence as Exhibit 4. The exhibit has not been filed with this court.
The statement was received in evidence as Exhibit C. It has not been filed with this court.
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 was "minus $595."
Appellant's brief points out that section 570.120.1(1), quoted supra, required the State to prove she passed the checks in Counts I though VI with the purpose to defraud, knowing they would not be paid by Senath State Bank. Appellant maintains the evidence was insufficient to establish those elements.
Appellant concedes her account had a "negative balance" throughout the period she passed the checks (May 14, 1997, through June 8, 1997). However, Appellant maintains the "negative balance" was caused by "an unexpected withdrawal of $500."
In support of that hypothesis, Appellant refers this court to a segment of her testimony where she said: "Mr. Carroll had went in to the bank[.] There was $500 given to either Mr. Carroll or someone at that point by the bank[.] There was a checks [sic] returned at that point with a charges [sic] per each check. . . . It would be in that April, May . . . in that area, I'm not sure."
Appellant's ex-husband. He is mentioned later in connection with the forgery count.
That segment of Appellant's testimony was not corroborated by any other evidence. The trial court was not required to believe it. State v. January , 871 S.W.2d 607, 608 (Mo.App.S.D. 1994); State v. Casey , 683 S.W.2d 282, 286[8, 9] (Mo.App.S.D. 1984).
Appellant's testimony on cross-examination included this:
"Q. . . . you've been convicted four times . . . of passing bad checks, three felonies and one misdemeanor?
A. I would say that would be correct."
This court holds the trial court could have reasonably found from the evidence, beyond a reasonable doubt, that (a) during the period from February 19, 1997, through June 30, 1997, there were no funds in Appellant's account, and (b) during the period when Appellant passed the checks in Counts I through VI — May 14, 1997, through June 8, 1997 — Appellant knew from having received the "bank statements" that there were no funds in her account from which any of those checks could be paid. Cf. State v. Smiles , 723 S.W.2d 65, 66-67 (Mo.App.S.D. 1986). Issuing a check with knowledge there are insufficient funds in the account is sufficient evidence of fraudulent intent to make a submissible case under section 570.120. State v. Aldrich , 724 S.W.2d 688, 692 (Mo.App.E.D. 1987). This court therefore rejects the first attack on the sufficiency of the evidence in Appellant's first point.
The second attack on the sufficiency of the evidence in Appellant's first point is that the evidence was insufficient to support a finding that (a) she had no account in Senath State Bank when she passed the checks in Counts I through VI, or (b) she knew she no longer had an account at that time.
Appellant emphasizes that Counts I through VI each alleged the check was "drawn upon a nonexistent account with the Senath State Bank." Appellant proclaims that although the bank purportedly closed her account around April 10, 1997 (before any of the checks in Counts I through VI were written), there was no evidence that the bank notified her the account was closed. Appellant reminds this court that because each check in Counts I through VI was less than $150, each would constitute only a class A misdemeanor under section 570.120.4 (quoted supra) unless she "had no account with the drawee" at the time she passed them.
Obviously, the first question this court must address regarding Appellant's second attack on the sufficiency of the evidence is whether the evidence was sufficient to support a finding that Appellant "had no account" with Senath State Bank during the time she passed the checks in Counts I through VI.
The State argues that the evidence demonstrated Appellant had no account during that time, in that the testimony of Senath State Bank's cashier established that the bank closed Appellant's account around April 10, 1997. Furthermore, says the State, the checks in Counts I through VI were returned to the respective payees marked "ACCOUNT CLOSED."
Appellant responds that she continued to receive monthly statements from Senath State Bank after April 1997, that the bank accepted deposits to her account in July 1997, that the account had "about a $1500 positive balance" during that month, and that checks were paid from the account that month. Because of that evidence, Appellant asserts there was no proof beyond a reasonable doubt that she had no account with Senath State Bank when she passed the checks in Counts I through VI.
In weighing the parties' arguments, this court notes this case is not one where an accused drew a check on a bank where he never had an account. Appellant opened an account at Senath State Bank on August 26, 1996, and continued to receive monthly statements from the bank through July 1997, the month after she passed the last check in Counts I through VI. Although the cashier testified the bank closed Appellant's account around April 10, 1997, the conduct of the bank in continuing to send Appellant monthly statements thereafter belies the notion that Appellant had no account after April 10. Furthermore, the deposits in July 1997 — the month Appellant's account reached "about a $1500 positive balance" — were evidently credited to the account Appellant had opened August 26, 1996, not to a new account created to receive those deposits.
Mindful that the burden to prove beyond a reasonable doubt that Appellant had no account with Senath State Bank when she passed the checks in Counts I through VI was on the State, Cf. State v. Nolan , 418 S.W.2d 51, 54 (Mo. 1967), this court holds the evidence insufficient to satisfy that burden. As the evidence was insufficient in that regard, it was, a fortiori, insufficient to demonstrate Appellant knew she no longer had an account.
The holdings in the preceding paragraph require this court to determine what relief Appellant is entitled to on Counts I through VI.
Appellant insists this court should reverse her convictions on those counts and "order that she be discharged from those offenses."
This court disagrees. Under section 570.120.1(1), the State need not prove an accused had no account with the drawee bank in order to establish guilt of passing a bad check. The crime of passing a bad check is proved by evidence establishing that an accused passed a check with the purpose to defraud, knowing it would not be paid by the drawee. State v. Madani , 910 S.W.2d 362, 366 (Mo.App.S.D. 1995). In rejecting the first attack on the sufficiency of the evidence in Appellant's first point, this court held the evidence sufficient to establish those elements.
Had the evidence also been sufficient to establish that Appellant had no account with Senath State Bank when she passed the checks in Counts I through VI, the crimes in those counts would have been elevated from class A misdemeanors to class D felonies per section 570.120.4(2). However, as explained earlier, the evidence was insufficient for that purpose.
Citing State v. Kleen , 481 S.W.2d 229 (Mo. 1972), Appellant argues that even if she no longer had an account with Senath State Bank when she passed the checks in Counts I through VI, she could be convicted of felonies on those counts only if the State proved she knew she no longer had an account. Kleen involved an alleged violation of section 561.450, RSMo 1969, repealed effective January 1, 1979, by Laws of Missouri 1977, S.B. 60, pp. 658-718. It is unnecessary to address the argument mentioned in this footnote, hence this court expresses no opinion about it.
Accordingly, this court holds Appellant's convictions of class D felonies on Counts I through VI, together with the sentences on those counts, must be reversed and the first case must be remanded to the trial court. On remand, the trial court may enter judgment declaring Appellant guilty of the class A misdemeanor of passing a bad check under each of Counts I through VI and may assess punishment on each of those counts within the authorized range for a class A misdemeanor in sections 558.011.1(5) and 560.016.1(1), RSMo 1994. Cf. State v. Trotter , 5 S.W.3d 188, 190 (Mo.App.W.D. 1999).
The other point relied on in Appellant's brief pertaining to the first case is point III, which reads:
"The trial court erred in overruling [Appellant's] motion for judgment of acquittal and in sentencing her upon her conviction for forgery because the State did not prove that offense beyond a reasonable doubt, in violation of her right to due process of law guaranteed by the 5th and 14th Amendments to the United States Constitution and Article I, section 10 of the Missouri Constitution, in that the State did not present sufficient evidence from which a rational trier of fact could have reached a `subjective state of near certitude' that [Appellant] `altered a writing.' The State merely put on evidence that [Appellant] deposited a check which had been altered. Such evidence cannot create a rebuttable presumption that [Appellant] committed a forgery by `altering a writing' because such a presumption would relieve the State of its burden of proving every element of the offense that it charged beyond a reasonable doubt by shifting the burden to [Appellant] to prove her innocence."
The phrase "subjective state of near certitude" in the above point was evidently lifted by Appellant from Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), where the Supreme Court of the United States, in discussing the constitutional standard for proof of guilt in a criminal case, explained that evidence meets the due process requirement of the Fourteenth Amendment where such evidence "convince[s] a trier of fact beyond a reasonable doubt of the existence of every element of the offense." 443 U.S. at 315-16, 99 S.Ct. at 2787. Appellant, as this court understands her brief, does not maintain the phrase "subjective state of near certitude" requires proof any stronger than beyond a reasonable doubt.
Count VII was the forgery count. It alleged, inter alia, that Appellant, on or about January 3, 1997, with the purpose to defraud, altered a check on the account of Bobby R. Carroll, drawn upon Kennett National Bank, in the amount of $129.80 "so that it purported to have been made with different terms."
Evidence favorable to the State regarding Count VII was supplied primarily by the testimony of Bobby Ray Carroll. He avowed Appellant was his wife in January 1997 but they were separated at that time. Bobby identified Exhibit 1 as a check he "made out" to "Kennett Cable Vision" for $29.80. Asked what he did with the check, Bobby answered, "I put it in my mailbox." Later, said Bobby, he was told by Kennett Cable Vision that his payment was "late."
For brevity and clarity, this opinion henceforth refers to Mr. Carroll by his forename. No disrespect is intended.
On cross-examination, Bobby revealed that about 1990 or 1991, he had a malignant tumor in his head and underwent surgery.
Appellant testified that in January 1997, Bobby needed money to go to Marion, Illinois, for medical treatment. Although they were separated, she agreed to help him get the funds.
Appellant avowed that Bobby, instead of mailing Exhibit 1 to Kennett Cable Vision, wrote her name over the name of Kennett Cable Vision — the original payee — and gave Exhibit 1 to her so she could deposit it in her account at Senath State Bank, thereby enabling her to write a check against her account for "expense money" for the Marion, Illinois, trip. Appellant swore Bobby wrote Exhibit 1 for $129.80, not $29.80. Appellant denied changing anything on Exhibit 1.
Bank records received in evidence showed Senath State Bank received Exhibit 1 on February 10, 1997, for deposit to Appellant's account and credited her account with $129.80 that date.
Appellant made two motions for judgment of acquittal in the first case. The first motion came after the State rested. The trial court denied it. After that ruling, Appellant testified in her own defense. By doing so, Appellant waived any claim of error regarding that ruling. State v. Purlee , 839 S.W.2d 584, 587 (Mo.banc 1992).
Appellant's testimony pertained solely to the first case. She presented no evidence in the second case.
After Appellant rested, the State announced it had no rebuttal evidence. Appellant thereupon moved for judgment of acquittal at the close of all the evidence. The trial court denied the motion. The lone issue this court must decide under Appellant's third point is whether that ruling was erroneous. Id.
The argument following Appellant's third point acknowledges that "a long line of cases" declares "possession of and attempt to pass a forged instrument raises a presumption or inference that the person in possession forged it and, unless its possession is explained to the satisfaction of the trier of facts, such presumption becomes conclusive." Appellant asserts those cases cast upon an accused the burden of disproving an element of the State's case, contrary to Jackson , supra, which requires the State to prove beyond a reasonable doubt every element of the alleged offense. In Appellant's words: "The State cannot put any burden on the [defendant] to prove his innocence, and the line of Missouri cases purporting to do so must be reversed." Applying that argument to Count VII, Appellant proclaims: "Here, the State did not prove that [Appellant] altered the check, which is the act that is charged in [Count VII]." According to Appellant, the evidence established only that she "may have deposited a check written by [Bobby], and that the check had been altered by someone other than [him]."
While Appellant's argument might be plausible were the evidence different, it is meritless under the proof here.
This is not an instance where an accused had unexplained possession of a forged instrument and passed it. Appellant avowed she acquired possession of Exhibit 1 directly from Bobby. Consequently, the State did not need to eliminate the possibility that after Bobby wrote Exhibit 1, a third person acquired possession of it and altered the name of the payee and the amount before Appellant acquired possession.
Under Appellant's testimony, only two people could have changed the name of the payee and the amount — Bobby or her. Bobby swore he changed neither the payee nor the amount. Appellant swore Bobby changed the payee.
It was the trial court's prerogative to believe Bobby's testimony that he did not alter the payee or the amount, and to believe Appellant's testimony that she acquired possession directly from Bobby. January , 871 S.W.2d at 608[2]; Casey , 683 S.W.2d at 286[8]. On those facts, the trial court could have reasonably found beyond a reasonable doubt that Appellant altered the name of the payee and the amount before depositing Exhibit 1 in her account.
Appellant's third point is denied. The portion of the judgment in the first case declaring Appellant guilty of Count VII and sentencing her to seven years' imprisonment is affirmed.
Appeal 23153
The events that begat the second case began May 27, 1998 (almost a year after Appellant passed the last check for which she was prosecuted in the first case). On that date, Appellant opened a checking account at First Midwest Bank of Poplar Bluff using the name "Freada P. Wood." Her address on the "signature card" was "HC6 Box 402, Doniphan, MO 63935."
Appellant explained at trial that the surname "Wood" was her "[r]estored name" after her divorce from Bobby.
A "checking account statement" showed that on June 9, 1998, after an $800 check was paid from Appellant's account, the balance in it was 16 cents. The balance remained at 16 cents until a $200 deposit June 15, 1998. Thereafter, the balance remained at $200.16 through June 28, 1998.
Meanwhile, on June 15, 1998, Paul Coleman opened a checking account at First Community Bank in Poplar Bluff with an initial deposit of $310. His address on the "signature card" was "HC R 6 Box 402, Doniphan, MO 63935."
Count I of the information alleged, inter alia, that Appellant, in Dunklin County, committed the class D felony of passing a bad check "in that on or about the 16th day of June, 1998 . . . the defendant, with the purpose to defraud, passed a check in the amount of $275.00, check number 280, dated the 12th day of June, 1998, payable to First Community Bank, drawn upon First Midwest Bank, knowing that such check would not be paid[.]"
Evidence favorable to the State regarding Count I showed that on June 16, 1998, a teller at First Community Bank in Campbell cashed check number 280 in the amount of $275, dated June 12, 1998, drawn on Appellant's account at First Midwest Bank, payable to Paul Coleman, and signed by Appellant. First Midwest Bank received the check for payment June 17, 1998, but returned it to First Community Bank the next day because of "insufficient fund."
The remaining two counts (Counts II and III) were pled identically to Count I except for the date the check was passed, the amount thereof, the check number, and the date on the check. Evidence regarding those checks, count-by-count, was as follows.
Count II. On June 16, 1998, a teller at First Community Bank in Holcomb cashed check number 281 in the amount of $300, dated June 14, 1998, drawn on Appellant's account at First Midwest Bank, payable to Paul Coleman, and signed by Appellant. The head bookkeeper at First Midwest Bank testified the check was "returned insufficient through our system" June 17, 1998, to First Community Bank.
Count III. On June 17, 1998, a teller at First Community Bank in Malden cashed check number 299 in the amount of $275, dated June 13, 1998, drawn on Appellant's account at First Midwest Bank, payable to Paul Coleman, and signed by Appellant. The head bookkeeper at First Midwest Bank testified the check was "run through our system" June 18, 1998, and returned "insufficient" to First Community Bank.
An attentive reader will have noticed that although Counts I through III each pled the subject check was payable to First Community Bank, the evidence on each count showed each check was payable to Paul Coleman. A copy of each check has been filed with this court. On the reverse side of each is a signature appearing to be "Paul Coleman."
The State's theory at trial, as articulated by the prosecutor, was that Appellant and Coleman "share[d] the same address" and there was a "joint scheme between them to . . . defraud First Community Bank." In support of that theory, the State presented evidence that in addition to the checks on which Counts I through III were based, Appellant wrote eight other checks payable to Coleman, each of which was passed at a First Community Bank facility in southeast Missouri. That evidence was as follows.
On June 16, 1998, check number 279 for $325 was cashed at Poplar Bluff, and check number 283 for $325 was cashed at Bernie.
On June 17, 1998, check number 284 for $375 was presented at Poplar Bluff, where "a hundred was deposited [and] $275 was received in cash[.]"
On June 19, 1998, check number 287 for $325 was cashed at Holcomb, check number 290 for $350 was cashed at Campbell, and check number 298 for $275 was cashed at Poplar Bluff.
On June 22, 1998, check number 285 for $275 was cashed at Poplar Bluff.
On June 23, 1998, check number 292 for $275 was cashed at Poplar Bluff.
The cashier at First Community Bank testified that "one or two" of the eight checks identified above were returned to First Community Bank marked "refer to maker," and "[t]he others were all insufficient." The cashier explained that the checks were "charged back" to Coleman's account. Then, this:
"Q. . . . were there anything close to sufficient funds in Mr. Coleman's account on the charge back on these checks?
A. No, sir. I think he had like a balance of 500 and something dollars.
Q. What was the total of the checks written, approximately?
A. Probably around $3800. Because, we had, at first, when all the checks came back to us, we ended up having a balance of like $3400, or, approximately, and, then he did make another deposit against that.
Q. Okay.
A. Which left us a balance of like $2400.
Q. And when you say a balance, you're talking about a negative balance?
A. A negative balance."
At the conclusion of the evidence, Appellant's lawyer protested that all three counts charged Appellant with writing a check payable to First Community Bank, whereas the evidence showed all checks passed to First Community Bank were payable to Coleman. Appellant's lawyer further argued that there was no evidence establishing where any of those checks were written. Appellant's lawyer observed: "If [Coleman] took these in Butler County, jurisdiction lies there, not in Dunklin County. And if he takes them [in] Ripley County, where their address is, it lies in Ripley County, not in Dunklin County."
As one might expect, the record is bare of any testimony from Coleman.
Before announcing its findings, the trial court granted the prosecutor "leave to amend the three-count information by interlineation to conform with the evidence[.]"
Pursuant to that ruling, the prosecutor marked through "First Community Bank" in each of the three counts and wrote "Paul Coleman."
Appellant's sole claim of error in the second case is point II, which reads:
"The trial court erred in overruling [Appellant's] motions for judgment of acquittal as to Counts I-III in [the second case], and in sentencing her upon those convictions for passing `insufficient funds' 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 there was insufficient evidence that: (1) [Appellant] passed the checks to Paul Coleman; and, (2) assuming arguendo that she did pass the checks to him, that at the time that [she] purportedly passed the checks to Coleman that she did so with the purpose to defraud."
This court begins its consideration of the above point by recognizing that an appellate court reviews only issues raised in the points relied on in an appellant's brief. State v. Martineau , 932 S.W.2d 829, 833 (Mo.App.S.D. 1996); State v. Crenshaw , 852 S.W.2d 181, 185 n. 4 (Mo.App.S.D. 1993). Consequently, although Appellant's lawyer complained in the trial court that the evidence failed to show venue lay in Dunklin County (as there was no proof as to where Appellant wrote the checks or where she gave them to Coleman), this court need not ponder that question, as it is not raised in Appellant's second point. There is likewise no issue in Appellant's second point about (a) the sufficiency of the information, (b) the admissibility of the evidence regarding the eight checks on which the prosecutor relied to support his "joint scheme" theory, or (c) the trial court's permission for the prosecutor to amend Counts I through III after the close of the evidence.
The first challenge to the sufficiency of the evidence in Appellant's second point is that there was no showing that she "passed the checks [in Counts I through III] to Paul Coleman." Citing Trotter , 5 S.W.3d at 194, Appellant asserts: "In order to pass a check, one transfers it or puts it into circulation."
Appellant concedes the evidence was sufficient to support a finding that she signed the checks in question, that they were made payable to Coleman, and that at some point they were cashed. However, insists Appellant, there was no proof as to how Coleman obtained the checks, when or where he obtained them, or "what he did with/to them."
For the reasons that follow, this court holds the trial court could have reasonably found beyond a reasonable doubt that Appellant passed the checks to Coleman.
The checks were obviously put into circulation, as they were cashed at various First Community Bank sites. There was no evidence to suggest that after Appellant wrote the checks, Coleman obtained possession of them without Appellant's knowledge or consent. Appellant wrote the checks on printed, personalized check forms bearing her name, address and Social Security number. There is no plausible reason Appellant would have used the printed forms had she not intended to turn the checks over to Coleman.
Furthermore, Appellant wrote at least eleven checks payable to Coleman in the aggregate amount of $3,375 during a ten-day period; those eleven checks were passed to First Community Bank during an eight-day period. All of that activity occurred during a span of twelve days (June 12, 1998 through June 23, 1998). That flurry of activity belies any notion that Appellant did not give the checks to Coleman promptly after writing them.
As this court understands the evidence, the earliest date on any of the eleven checks is June 12, 1998 (the check in Count I); the latest date on any of them is June 21, 1998.
As this court understands the evidence, the first date any of the eleven checks was passed to First Community Bank was June 16, 1998; the last date any of them was passed to First Community Bank was June 23, 1998.
Given those circumstances, this court rejects Appellant's contention that there was insufficient evidence to support a finding beyond a reasonable doubt that she passed the checks to Coleman.
The remaining challenge to the sufficiency of the evidence in Appellant's second point is that there was no showing that she passed the checks with the purpose to defraud.
Appellant wrote the first of the eleven checks June 12, 1998 — check 280 for $275 (the Count I check). On that date, the balance in her account at First Midwest Bank was 16 cents. The only deposit to her account during the period when all eleven checks were written and passed to First Community Bank was a $200 deposit June 15, 1998. Obviously, that deposit was insufficient to pay any of the eleven checks.
As noted in the segment of this opinion addressing appeal 23151, issuing a check with knowledge there are insufficient funds in the account on which the check is drawn is sufficient evidence of fraudulent intent to make a submissible case under section 570.120. Aldrich , 724 S.W.2d at 692.
Appellant's second point is denied. The judgment in the second case is affirmed.