No. 86-158
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
GREG FLEMING,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas Alan Kragh, Polson, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Barbara Claassen, Asst. Atty. General, Helena
John R. Frederick, County Attorney, Polson, Montana
Submitted on Briefs: Oct. 23, 1 9 8 0
Decided: January 2 , 1987
F j led : JAN 2 - j357
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Greg Fleming appeals a Lake County District Court
verdict convicting him of issuing bad checks, common scheme,
a felony. Fleming was sentenced to three years in prison
with all but ten days suspended subject to certain
conditions, and ordered to pay restitution.
Three issues are raised on appeal:
1) Whether the District Court erred in denying the
appellant's motion to dismiss the second amended information?
2) Whether the District Court erred in admitting
testimony by a bank officer regarding appellant's signature?
3) Whether sufficient evidence exists to support the
conviction of issuing bad checks as part of a common scheme?
We affirm.
On September 3, 1985, Fleming was charged by second
amended information with issuing bad checks, common scheme, a
felony, or in the alternative, theft, common scheme, a
felony. The information specified that eleven checks "as
well as others" constituted a common scheme. On September
17, 1985, Fleming filed a motion to dismiss which stated that
the information failed to charge an offense and/or was not
supported by probable cause. The motion was denied October
3, 1985. At trial, the State established that between
January 1984 and April 1985, Fleming issued a total of 198
checks returned N.S.F. by the Ronan State Rank, the
depository bank. Representatives of six merchants in the
Lake County area testified in regard to nine of the N.S.F.
checks listed in the amended information. The managinq
officer and executive vice president of the bank testified
that written notice is sent by the bank to a customer when
insufficient funds are available to pay a particular check.
The bank officer provided copies of Fleming's bank statements
for the months of January 1984 through May 1985, which were
admitted into evidence to show that 198 of Fleming's checks
had been returned by the bank due to insufficient funds. The
bank officer further testified that he had known Fleming
since birth and because of his personal contact with Fleming
at the bank, he was familiar with Fleming's signature. Prior
to trial, the officer inspected Fleming's signature card
filed with the bank and at trial identified the mark placed
on the checks by the bank showing that the checks had indeed
been returned due to insufficient funds. He concluded his
testimony by stating that in his opinion, Fleming wrote the
checks in question. On January 31, 1986, the District Court
found Fleming guilty of issuing bad checks, common scheme, a
felony, under § 45-6-316, MCA. The court dismissed the
alternative count of theft, common scheme, a felony.
The first issue is whether the District Court erred in
denying the appellant's motion to dismiss the second amended
information. Fleming argues that he was not adequately
apprised of the charges being brought against him, and that
the allegation of a common scheme of issuing bad checks
should only be considered as a sentencing matter.
The statute under which Fleming was charged, 5 45-6-316,
states as follows:
(1) A person commits the offense of
issuing a bad check when he issues or
delivers a check or other order upon a
real or fictitious depository for the
payment of money knowing that it wili not
be paid by the depository.
(2) If the offender has an account with
the depository, failure to make good the
check or other order within 5 days after
writter. notice of nonpayment has been
received by the issuer is prima facie
evidence that he knew that it would 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 6 months, or both.
- - offender - engagedo ina issuin
1f- the has
bad checks which - - - -
are part f commoz
scheme - - - value - - property,
or if the of any
labor, or services obtained - attempted
or
to - oEained exceeds $300, he shall -
- be be
fined - - exceed $50,000 or be
not to
imprisoned - - state prison for any
in the
term not to exceed - vears. - both.
- - - 10 2
.
or
(Emphasis added.)
The second amended information charged that:
on or about the dates stated below . ..
Greg Fleming, with the purpose to secure
property, to-wit: merchandise, services,
or money from the following businesses or
persons, issued or delivered the
following checks, upon a depository ...
knowing that they would not be paid by
the depository ...
The a.bove checks, as
well as others constituted a Common
Scheme or were issued to obtain property,
labor, or services which exceeded $300.00
in value ...
The information charges the offense in the language of
5 45-6-316, MCA, and matches eleven checks with a particular
payee, amount, and date. Montana follows the general rule
that an information is sufficient if it properly charges an
offense in the language of the statute describing the offense
thereby sufficiently apprising the accused of the crime
charged. It need not be perfect. State v. Pearson (Mont.
follows that Fleming was clearly on notice of the charges
being brought against him. In addition we reject Fleming's
argument that the common scheme concept should only be
considered. as a sentencing matter.
"Common scheme" is defined in S 45-2-101 ( 7 ) , MCA as "a
series of acts or omissions motivated by a purpose to
accomplish a single criminal objective - -by a common purpose
or -
- plan which results - - repeated commission - - -
or in the of the same
offense or affects the same person or the same persons or the
property thereof." (Emphasis added.)
In State v. Renz (Mont. 1981), 628 P.2d 644, 646, 38
St.Rep. 720, 723, we said that proof of common scheme
requires proof that the suspect series of acts constitute a
common criminal scheme. These acts must be either
individually incomplete such that they show that a single
crime had been committed, or be acts which closely follow one
another evidencing a continuing criminal design.
Common scheme is clearly an element to be charged and
proven under 5 45-6-316, MCA, as it is specifically mentioned
in subsection (3) of the statute. The District Court ~OUP~.
that Fleming was involved in a common scheme which resulted
in the repeated commission of the same offense, issuinq a bsd
check. We agree with this finding.
The second issue is whether the District Court erred in
admitting testimony by a hank officer regsrdinq appellant's
signature.
Rule 901, M.R.Evid., provides:
(a) General provision. The requirement
of authentication or identification as a
condition precedent to admissibility is
satisfied by evidence sufficient to
support a finding that the matter in
question is what its proponent claims.
(b) Illustrations. By way of
illustration only, and not by way of
limitation, the following are examples of
authentication or identification
conformi-ng with the requirements of this
rule :
(2) Nonexpert opinion on handwriting.
Nonexpert opinion as to the genuineness
of handwriting, based upon familiarity
justifies the District Court's conclusion that the
requirements of S 45-6-316, MCA, have been met. It was
proven that Fleming issued or delivered a total of nine
checks to various businesses and individuals over the course
of a year, knowing that the checks would not be paid by his
bank. The repeated issuance of one bad check after another
fits the definition of a common scheme as found in the
statute. The decision of the District Court was correct.
Affirmed.
Justice J
We concur:
accomplish a single criminal objective - 3 - common purpose
or a
- plan which results - - repeated commission - - -
or in the of the same
offense or affects the same person or the same persons or the
property thereof." (Emphasis added.)
In State v. Renz (Mont. 1981), 628 P.2d 644, 646, 38
St.Rep. 720, 723, we said that proof of common scheme
requires proof that the suspect series of acts constitute a
common criminal scheme. These acts must be either
individually incomplete such that they show that a single
crime had been committed, or be acts which closely follow one
another evidencing a continuing criminal design.
Common scheme is clearly an element to be charged and
proven under 5 45-6-316, MCA, as it is specifically mentioned
in subsection (3) of the statute. The District Court found!
that Fleming was involved in a common scheme which resulted
in the repeated commission of the same offense, issuing a bad
check. We agree with this finding.
The second issue is whether the District Court erred in
admitting testimony by a bank officer regarding appellant's
signature.
Rule 901, M.R.Evid., provides:
(a) General provision. The requirement
of authentication or identification as a
condition precedent to admissibility is
satisfied by evidence sufficient to
support a finding that the matter in
question is what its proponent claims.
(b) Illustrations. By way of
illustration only, and not by way of
limitation, the following are examples of
authentication or identification
conforming with the requirements of this
rule :
(2) Nonexpert opinion on handwriting.
Nonexpert opinion as to the genuineness
of handwriting, ba-sed upon familiarity
not acquired for purposes of the
litigation.
Subsection (b) (2) expresses the rule observed at common law
and in Montana that a nonexpert may give his opinion on the
genuineness of handwriting if he is familiar with that
handwriting. See Commission Comment to Rule 901 (b)( 2 ) ,
M.R.Evid.
The managing officer and executive vice president of the
bank which handled the checks testified that he was familiar
with Fleming's signature. The bank official's familiarity
was gained through having known Fleming since birth, his
personal contact with Fleming at the bank, and his review of
Fleming's signature card on file at the bank. The bank
officer stated that comparing signature cards with the
signatures on individual checks was part of his job at the
bank. He concluded that, in his opinion, Fleming wrote the
checks in question.
We believe the bank officer was sufficiently qualified
to render an opinion as to the author of the checks admitted
into evidence.
The final issue is whether sufficient evidence exists to
support the conviction of issuing bad checks as part of a
common scheme.
The test applied by this Court where sufficiency of the
evidence is an issue on appeal in a criminal case, whether
the trial is by jury or not, is the substantial evidence
test. This test is met if a reasonable mind would accept the
evidence as supporting the conclusion reached. In applying
this test the evidence is viewed in a light most favorable to
t h ~
prevailing party. State v. Oman, (Mont. 1985) , 707 P.2d
1117, 11.20, 42 St.Rep. 1565, 1568. The evidence clearly