concurring. Although I fully agree with the majority to reverse and remand, I note that the April, 1983 bank statement reflects that the Brimms’ account had a negative balance for March, 1983. Thus, if the April/May, 1983 statements had been admitted into evidence, the jury would have known the First State Bank had permitted the Brimms to overdraft checks for at least five months before the bank decided to dishonor their insufficient checks. Nonetheless, the State prosecuted this case based upon insufficient checks reflected in only the July/August, 1983 Brimm bank statements.
Ralph Wilson, a vice-president for the Bank, testified that it was illegal for a bank to honor overdrafts unless some arrangement had been entered into between it and its customer. Obviously, the length óf time the Bank had honored insufficient checks written by the Brimms would be at least circumstantial evidence bearing on whether it had entered into an agreement with the Brimms. For example, if the State had contended that no such agreement existed during the entire five months in question, the clear implication would have been that the Bank participated illegally in honoring the Brimms’ insufficient checks for at least three months immediately prior to the months of July and August, 1983 when it decided not to honor such overdrafts. The fact that no earlier action was taken by the Bank raises relevant questions of why it did not. Clearly, none of the insufficient checks for the earlier three-month period was the subject of a prosecution against either Ms. or Mr. Brimm. There is no evidence reflecting that the Bank had an arrangement with the Brimms during this three-month period but not for July and August. The jury should have been able to consider the manner in which the Bank and the Brimms did business for this entire five-month period before it decided that no arrangement existed between these parties and that Ms. Brimm possessed an intent to defraud when she wrote the four insufficient checks for which she was prosecuted.