No. 84-306
IN THE SUPREME COURT OF THE STATE OF M N A A
OTN
1985
THE STATE OF MONTANA,
P l a i n t i f f and Respondent,
-vs-
ALLEN DALE McHUGH,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e F i r s t J u d i c i a l District,
I n a n d f o r t h e County o f Lewis & C l a r k ,
I n H o n o r a b l e Gordon B e n n e t t , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Cannon & S h e e h y ; Edmund F. Sheehy, J r . , Helena,
llontana
For Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Mike PlcGrath, County A t t o r n e y , H e l e n a , Montana
- - --
S u b m i t t e d on B r i e f s : Oct. 18, 1984
Decided: March 2 6 , 1985
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant Allen Dale McHugh was convicted in a jury
trial in Lewis and Clark County District Court of issuing bad
checks, common scheme, a felony. McHugh was sentenced to
five years at the Montana State Prison with three years
suspended subject to certain conditions. McHugh appeals his
conviction. We affirm.
The issues are:
1. Is the evidence sufficient to support the jury's
verdict that defendant engaged in a common scheme of issuing
bad checks?
2. Did the District Court err in denying defendant's
motion to dismiss at the close of the State's case?
3. Did the District Court err in refusing defendant's
proposed instructions no. 16 and 17?
McHugh was charged by information filed November 30,
1983 with issuing bad checks, common scheme, a felony. At
trial, the State introduced seventeen bad checks written on
two separate Helena checking accounts. The record shows that
at least ten of the seventeen checks remained unpaid at the
time of trial.
Representatives of five Helena merchants testified
regarding ten NSF checks received from McHugh. Each of these
merchants sent certified letters to McHugh notifying him that
the checks had bounced and advising him that if full payment
was not received within a certain number of days, the checks
would be turned over to the county attorney. Delivery re-
ceipts from each of these certified letters were returned to
the individual merchants signed either by McHugh personally
or by his friend, Murray Vickers, who lived with McHugh.
Vickers signed for some of the letters and left them where
McHugh customarily picked up his mail. Vickers testified
that McHugh would have seen the letters Vickers signed for.
Despite having received these certified letters, McHugh
contacted none of these merchants. These ten checks remained
unpaid at the time of trial. The State introduced, through
McHugh's own testimony, seven additional checks written to
local merchants by McHugh which were returned marked NSF or
account closed.
Representatives of each of McHugh's two banks also
testified. The State introduced monthly account statements
sent to McHugh by the banks during the period covered by the
information. These statements show that McHugh maintained a
significant negative balance in both accounts for substantial
periods of time. The bank representatives testified that
overdraft notices were sent to McHugh for each day the ac-
counts became overdrawn. In one statement period no deposits
were made by McHugh to his First Security Bank account de-
spite a negative opening balance of $401.14. Further, bank
representatives testified that these statements did not show
the total amount of checks written that were dishonored by
the bank. The statements showed only actual charges against
the accounts. One of the bank representatives testified that
he found it very hard to believe that someone would not know
under these circumstances he had insufficient funds to cover
the checks. This witness noted that the bank statements
instructed account holders to bring to the bank's attention
any discrepancies or questions regarding the account. There
is no indication in the record that McHugh ever contacted
either bank to discuss questions or discrepancies in his
accounts.
McHugh attempted to show at trial that he did not or
could not have had knowledge that his checks would not be
honored by the banks. McHuqh attempted to show that bank
charges assessed on each overdraft accounted for his negative
balance. and that deposits made by McHugh would have been
sufficient to cover the actual checks written by McHugh.
Bank representatives testified to the contrary.
McHugh also attempted to show that an officer at Valley
Bank had agreed to cover his checks until McHugh received an
anticipated $4,000 check in settlement of an insurance claim.
This bank officer testified that he had discussed the matter
with McHugh, but that he told P4cHugh he would not cover the
checks until McHugh received the check and deposited it in
his account.
McHugh himself testified at trial, characterizing him-
self as "dumber than they come" regarding checkbook balances.
He testified that if he would have known about the bad. checks
he would have made them good. He testified that he either
simply lost track of checks he had written or believed the
bank would cover the checks despite his negative balance.
Is the evidence sufficient to support the jury's verdict
that defendant engaged in a common scheme of issuing bad
checks?
Defendant argues that the evidence is insufficient to
justify a jury verdict that he is guilty of engaging in a
*
common scheme. He argues that each check written was an
individual and complete act, each being too distant in time
to constitute a continuing criminal design.
McHugh was charged with issuing bad checks under
S 45-6-316, MCA. That section provides:
"(1) A person commits the offense of issuing a bad
check when, with the purpose of obtaining control
over property or to secure property, labor, or
services of another, he issues or deli~~ers check
a
or other order upon a real or fictitious depository
for the payment of money knowing that it will not
be paid by the depository.
" (3) A person convicted of issuing a bad check
shall be fined not to exceed $500 or be imprisoned
in the county jail for any term not to exceed six
months, or both. If the offender has engaged in
issuing bad checks which are a part of a common
scheme ... he shall be fined not to exceed
$50,000 or be imprisoned in the state prison for
any term not to exceed ten years, or both."
"Common scheme" is defined in S 45-2-101 (7), MCA a.s "a
series of acts or omissions motivated by a purpose to accom-
plish a single criminal objective -
or & - common purpose -
a or
plan which results - - repeated commission - - -
in the of the same
offense or affects the same person or the same persons or the
property thereof." This statutory definition was included in
the court's instruction to the jury concerning common scheme.
Pursuant to this Court's holding in State v. Renz (Mont.
1981), 628 P.2d 644, 645-46, 38 St.Rep. 720, 722-23, the jury
was further instructed that acts alleged to be a common
scheme must be either individually incomplete such that they
show a single crime had been committed or has been committed
or that they must be acts which closely follow one another,
evidencing a continuing criminal design.
The test applied by this Court to determine whether the
evidence is sufficient to support the verdict is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
State v. Rodriguez (Mont. 1981), 628 P.2d 280, 283, 38
St.Rep. 578F, 5781, citing Jackson v. Virginia (1979), 443
U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573. We
conclude the evidence is sufficient to support the jury's
verdict that McHugh engaged in a common scheme of issuing bad
checks.
The evidence in the record justifies a rational trier of
fact in finding the essential elements of the charged offense
beyond a reasonable doubt. The record shows that the defen-
dant issued or delivered checks to numerous Helena merchants
with the purpose of securing their property, labor or servic-
es. The evidence establishes circumstances which would
allow a rational trier of fact to believe that McHugh could
not have expected the banks to honor his checks. The evi-
dence overwhelmingly supports a finding that McHugh repeated-
ly issued checks to local merchants without sufficient funds
on deposit to cover those checks. Despite receiving bank
statements, overdraft notices and certified letters indicat-
ing that his checks were not being honored by his banks,
McHugh continued to engage in precisely the same conduct,
resulting in a repeated commission of the same offense. The
evidence in the record supports a finding that the issuance
of each check closely followed issuance of another, evidenc-
ing a continuing criminal design.
McHugh nonetheless argues that the bad checks he issued
did not closely follow one another because some of the checks
were issued in April and May of 1983 and others were issued
in the fall of 1983. However, the record shows that a number
of bad checks relied upon by the State were issued on First
Security Bank in a short period within the months of April
and May of 1983, and that another group of checks was issued
on Valley Bank within a short period of time in the fall of
1983. We conclude that issuance of each check followed
issuance of the others closely enough to constitute a contin-
uing criminal design.
McHugh further argues that he did not engage in a con-
tinuing criminal design because the bank paid some of the
checks he issued and dishonored other checks. He argues that
the banks could have decided to pay all of his checks rather
than bouncing some and paying some. McHugh also notes that
his wife was writing checks on the two bank accounts and that
she was not charged with issuing bad checks. We find no
merit in these arguments. As stated in defendant's brief,
the evidence shows that the defendant himself issued numerous
bad checks which were not made good by him, and the property
obtained thereby was not paid for.
McHugh argues that it is "particularly repugnant" to
convict him of this crime when the unpaid checks in question
totalled less than $400. The State, however, is not required
to establish any particular amount where, as here, a common
scheme is established. Section 45-6-316(3), MCA.
We hold that the evidence is sufficient to support the
jury's verdict that defendant engaged in a common scheme of
issuing bad checks.
Did the District Court err in denying defendant's motion
to dismiss at the close of the State's case?
McHugh argues that the court erred in not dismissing the
charges after presentation of the State's case because the
State had made no prima facie showing of knowledge as re-
quired by § 45-6-316(l), MCA. In this regard, McHugh con-
tends he had enough money on deposit to cover the checks
written but not to cover the bank's service charges. He
argues that the charges against him are merely the result of
arbitrary bank actions in covering some checks but not cover-
ing others. He further argues that he should not be convict-
ed of the crime when the bank promised to cover his checks.
A directed verdict of acquittal is appropriate in a
criminal case only where the State fails to prove its case
and there is no evidence upon which a jury could base its
verdict. The decision whether to dismiss the charge or
direct a verdict of acquittal lies within the sound
discretion of the trial court and will not be disturbed on
appeal, absent a showing of an abuse of discretion. State v.
Goltz (1982), 197 Mont. 361, 372, 642 P.2d 1079, 1085.
A person acts knowingly with respect to the result of
conduct when he is aware that it is highly probable that a
result will be caused by his conduct. Section 45-2-101(33),
MCA. Here, extensive evidence introduced during the State's
case-in-chief tended to show that McHugh knew that it was
highly probable that the checks he was issuing would not be
honored. This evidence included bank statements showing
significant negative balances, numerous overdraft notices
mailed to the defendant, and numerous certified letters sent
to McHugh notifying him of the overdrafts and requesting
payment. Numerous checks remained unpaid at the time of
trial. The State's case-in-chief contains sufficient evi-
dence upon which the jury could base its verdict.
McHugh's contention that the overdrafts were caused by
bank charges rather than a lack of sufficient deposits was
directly refuted by the testimony of bank representatives.
Noreover, the record contains ample evidence to justify the
jury's rejection of McHugh's argument that because the bank
honored some of his checks McHugh could not have known the
bank would dishonor other checks. The evidence supports a
finding that under the circumstances McHugh was aware that it
was highly probable that his checks would not be paid by the
hanks.
We hold that the District Court properly refused to
dismiss the charges at the close of the State's case.
I11
Did the District Court err in refusing defendant's
proposed instructions no. 16 and 17?
McHugh argues that the District Court erred in refusing
his proposed jury instructions no. 16 and 17. McHughfs
proposed instruction no. 16 would have in effect required
that the jury find he had actual knowledge that his checks
would not be honored. McHughls proposed instruction no. 17
would have provided McHugh a defense if the jury found that
McHugh had such credit with the bank as to lead him to a
reasonable belief that his checks would be honored, and would
allow proof of such a belief by showing an implied under-
standing by McHugh from his past course of dealing with the
bank and the bank's past conduct. Both proposed instructions
were derived from states, unlike Montana, where criminal
liability for issuing bad checks depends on an intention to
defraud. We conclude that the District Court properly re-
fused the instructions.
Section 45-6-316 (I), MCA does not require actual knowl-
edge that the checks will not be paid by the bank. This
section requires only that the defendant act "knowing that
[the check] will not be paid by the depository." The defini-
tion of "knowingly" and the equivalent term "knowing" is
stated in section 46-2-101(33), MCA. This definition was
presented to the jury in Instruction no. 9. That instruction
informed the jury that "[wlhere, as here, knowledge of the
existence of a particular fact is an element of an offense,
such knowledge of the fa.ct is established if a person is
aware of a high probability of its existence." This instruc-
tion, which was given to the jury, properly states Montana
law with respect to the knowledge requirement.
If the instructions, reviewed as a whole, fully and
fairly present the law to the jury, the jury has been proper-
ly instructed. State v. Zampich (Mont. 1983), 667 P.2d 955,
957, 40 St.Rep. 1235, 1237; State v. Johnson (Mont. 1982),
646 P.2d 507, 512, 39 St.Rep. 1014, 1-020. Here the jury was
fully and fairly instructed. with regard to the knowledge
requirement of 9 45-6-316, MCA.
Under the knowledge instruction given by the court,
McHugh had ample opportunity to present evidence and argue
that he was not aware of a high probability that his checks
would be dishonored, either because he had an agreement with
the bank to honor the checks or because his prior dealings
with the hank and the bank's past conduct led him to reason-
ably believe his checks would be honored. The jury rejected
these arguments.
We hold that the District Court properly refused defen-
dant's proposed jury instructions no. 16 and 17.
We affirm the defendant's co
We concur: ,/
/A
Chief Justice