2005-493, STATE OF NH v. JOHN REED STEWART D/B/A J.R.S. INTERIORS

Kelly A. Ayotte

JOHN REED STEWART d/b/a J.R.S. INTERIORS

No. 2005-493 Rockingham

of Auger Building Company, two checks in the amount of $25,000 each. One November 2002, the defendant executed and delivered to Ben Auger, the owner for certain payments to be made as certain portions of the job were finished. In

THE SUPREME COURT OF NEW HAMPSHIRE of his house, for a total cost of around one million dollars. The contract called

defendant hired Auger Building Company to complete an extensive renovation

Theodore Lothstein

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home The jury could have found the following facts. In October 2001, the reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 reverse and remand. a felony count of issuing a bad check. See RSA 638:4, I, IV(a)(1) (1996). We appeals his conviction, following a jury trial in Superior Court (Nadeau, J.), on HICKS, J. The defendant, John Reed Stewart d/b/a J.R.S. Interiors,

and orally, for the defendant.

general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: , attorney general (Nicholas Cort, assistant attorney

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as sound discretion of the trial court.” State v. Poole p. 2 response to a jury question. “The response to a jury question is left to the

The defendant first argues that the trial court misstated the law in

question and in denying his motion to dismiss for insufficient evidence. defendant appeals, arguing that the trial court erred in responding to a jury

November 20, but guilty with respect to the check dated November 14. The

The jury returned a verdict of not guilty with respect to the check dated

but was denied.

keep the checks. The defendant testified that he did apply for other funding,

because they were no good.” According to the defendant, Auger said he would

would apply for another mortgage “and that [he] would like the checks back his financing had fallen through. Upon his return, he informed Auger that he The defendant further testified that while he was away, he learned that

know when he could cash the checks.” would call the defendant’s assistant, who would then call Auger to “let him the defendant, the mutual understanding of all involved was that the attorney

deposited into the account on which the checks had been written. According to

represent him at the closing, and the proceeds of the mortgage loan were to be to be away.” He had hired an attorney, who held a power of attorney, to “checks would be good after a mortgage had gone through while [he] was going

November 13 or 14 because he was leaving the country. He told Auger that the

The defendant testified to the following: He wrote the checks on

the account at the time the checks were written. The testimony at trial also demonstrated that there were insufficient funds in

returned, as there were insufficient funds in the defendant’s bank account.

Auger finally deposited the checks on March 5, 2003. The checks were

defendant that “they’ll be good; I’m waiting for a transfer.”

unsustainable exercise of discretion standard. See ten or twelve times regarding the checks and was told at least once by the

determine whether the answer accurately conveys the law on the question and court’s answer to a jury inquiry in the context of the court’s entire charge to

(quotation omitted). Accordingly, we review the court’s response under the week or something like that.” He also testified that he contacted the defendant, 150 N.H. 299, 301 (2003) them was given to us and [the defendant] said, you know, it will be good next to cash them right away. Auger testified that the checks “or at least one of

time the checks were delivered that there were insufficient funds in the account

usual practice. Rather, he waited because the defendant informed him at the Auger did not deposit the checks immediately, although that was not his

2002. check was dated November 14, 2002, and the other was dated November 20, intended to pay the amount owed.

p. 3 The State does not have the burden to prove the defendant never

The trial court gave the following answer:

the account.

the bank on November 14th when he knew the funds were not in That [the defendant] believed that the check would not be paid by

-or-

(Eventually, possibly after his refinance) November 14th that the check would not be paid by the bank.

Does this statement mean that [the defendant] believed on

The jury asked for further clarification:

paid by the bank and that there were insufficient funds to cover the check.”

defendant issued the check, he knew or believed that the check would not be

to the second question, stated: “The State must prove that, at the time the court referred the jury to the original instructions, but in addition, in response could not be answered. With respect to the second and third questions, the

The court answered that the first question was not relevant and thus

(3) please define criminal intent check was written?

(2) Clarify “at that time” – what period of time? That moment the

binding

(1) is the verbal agreement between defendant + plaintiff legal +

On the first day of deliberations, the jury asked the following questions:

$1,000.00. And number five, that the defendant acted knowingly. Number four, that the face amount of the check exceeded knew or believed that the check would not be paid by the bank.

on which the check was drawn. Number three, that the defendant

money. Number two, that the payment was refused by the bank Number one, that the defendant issued a check for the payment of [T]he State must prove the following beyond a reasonable doubt.

follows: The trial court instructed the jury on the elements of the crime as

State v. Fitanides, 141 N.H. 352, 354 (1996) (citation omitted). whether the charge as a whole fairly covered the issues and law in the case.” of issue is neither a legal presumption, cf p. 4 check. We therefore conclude that knowledge of insufficient funds at the time

the defendant’s knowledge of his account balance at the time of writing the

the defendant’s belief as to the eventuality of the check being honored, not on drawee.” RSA 638:4, IV(b). The plain language of this subsection focuses on passed the check knowing or believing that the check would not be paid by the

RSA 638:4, I. The prosecutor is required to “prove that the person issued or

the check. other reason through no fault of the person who issued or passed

has been issued or where the drawee refuses payment for any

by the drawee, except in cases where a legal stop payment order

passes a check for the payment of money and payment is refused I. A person is guilty of issuing a bad check if he issues or

The bad check statute provides, in part:

our holding in Fitanides The State argues that this interpretation of RSA 638:4 runs contrary to The State need not prove that the defendant never

account balance on the date of the check.” We agree. “the trial court erred in directing the jury to consider [his] belief as to his check would not be paid by the drawee [bank].” RSA 638:4, IV(b). the defendant “passed the check knowing or believing that the The culpable mental state that the State is required to prove is that

intent ever

the amount owed.

issue), nor an element of the crime.

We affirmed the trial court’s answer to the jury in the negative, stating:

N.H. at 354.

to pay [the payee of the check] the amount owed.” Fitanides, 141

jury in a bad check case as to whether they “could consider the defendant’s

the check made him guilty regardless of his good faith belief that Auger would know check would not be paid if he had no account with drawee at time of knowledge that the funds were insufficient on the day that he actually wrote with the very heart of the matter”; particularly, “whether [the defendant’s]. RSA 638:4, II (person is presumed to

The defendant contends, “The jury’s questions revealed it was grappling

and that the bank would not honor the check. the defendant knew there were insufficient funds to cover the check,

doubt that at the time the defendant issued the check to Mr. Auger, Rather, the State has the burden to prove beyond a reasonable p. 5 Fitanides amount owed,” was correct, and our decision today is not inconsistent with thinking such knowledge was sufficient to meet the mens element of the crime, the court’s answer could have misled the jury into insufficient account balance on the date the check was issued was a necessary

and a rational jury could have found that the mens

does not have the burden to prove the defendant never intended to pay the

erroneously informing the jury that the defendant’s knowledge of an a belief that a check will be dishonored, cf defendant’s account at the time the checks were written may be less relevant, checks were in fact held for approximately four months, the status of the obtain financing prior to negotiation of the checks, and evidence that the

Accordingly, the first portion of the trial court’s answer, that “[t]he State

committed the crime of issuing a bad check despite his good intentions. namely “that the bank would not honor the check,” we conclude that by the answer referred to the correct object of the defendant’s knowledge or belief, We note that knowledge of insufficient funds is evidence of knowledge or above, that is not an element under RSA 638:4. Although the final portion of

agreement not to deposit the checks immediately, evidence of attempts to

such knowledge will often be compelling evidence of the criminal mens trial court’s erroneous response to the jury’s question. Cf. Poole, 150 N.H. at proved. Accordingly, we conclude that the defendant was prejudiced by the

[he] knew there were insufficient funds to cover the check.” As explained

issued. In a case such as this, however, where there was evidence of an solely by the State’s evidence of insufficient funds at the time the check was Thus, in many cases, a jury may find that the mens rea element is satisfied

checks are often issued, delivered and negotiated in a short period of time, admissibility of evidence of account balance on date check was issued), and as

payee, yet have every intention of paying the underlying obligation when or if check will not clear at the time it will likely be presented to the bank by the defendant’s claim that there had been no assault”). constitutes the mental state of the crime. A person may know or believe that a that the State had to prove that “at the time [he] issued the check to Mr. Auger, on whether the victim had been stabbed with a knife and away from the reinstruction following jury question “improperly focused the jury’s attention the crime. Cf. State v. King, 136 N.H. 674, 678 (1993) (reversing where court’s

check will clear at the time it is presented to the bank by the payee that does not exist, and in so doing, may have misled the jury. The court stated

. The second portion, however, added an element to the crime that

p. 5 Fitanides

RSA 638:4. Rather, it is the defendant’s knowledge or belief as to whether the check, or ever to pay the underlying obligation, are not relevant issues under

clarifies that the defendant’s intent ever to make good on the

Id. p. 6 People v. Poyet

such disclosure is a defense where fraud is an element. regarded as a defense to statutes not requiring intent to defraud,

disclosure of present insufficiency of funds is not generally

not require an intent to defraud and those which do. . . . While

on which they are drawn are of two general types: those which do checks with insufficient funds on deposit in or credit with the bank Statutes imposing criminal penalties on those who knowingly pass

the Supreme Court of California noted: jurisdictions in which the bad check statute requires an intent to defraud. As As the defendant acknowledges, however, the cases so holding are from

offense of issuing [a] bad check is not committed. wait until notified that sufficient funds have become available, the holds the check in accordance with the issuer’s instructions to

that the check is not supported by sufficient funds, and the payee whole.” State v. Leonard

omitted). doubt.” State v. Grimes beyond the language of the statute to discern legislative intent.” Id. (quotation whole, and if the statute’s language is clear and unambiguous, we do not look “starting point is the language of the statute. We construe each statute as a [A]s a matter of law, when a payee knows at the time of issuance, 151 N.H. 201, 203 (2004) (quotation omitted). Our intent of the legislature as expressed in the words of a statute considered as a In matters of statutory interpretation, we are “the final arbiter of the

, 492 P.2d 1150, 1151-52 (Cal. 1972) (citation omitted).

to the State, no rational trier of fact could have found guilt beyond a reasonable the defendant must show that, viewing the evidence in the light most favorable must address on appeal. “To succeed on a sufficiency of the evidence claim,

asserted: should have granted his motion to dismiss for insufficient evidence, which

The defendant also raises a sufficiency of the evidence claim that we

exercised its discretion in answering the jury’s question. See interpretation of the statute. Specifically, he contends that the trial court mens rea.” His sufficiency of the evidence claim, however, hinges upon his The defendant argues that the State failed to prove “a criminally culpable

prejudiced by answer to jury question). The trial court therefore unsustainably 302 (concluding, because of way State and defendant tried case, defendant was p. 7 Grimes

no rational trier of fact could have found guilt beyond a reasonable doubt.”

cannot say that “viewing the evidence in the light most favorable to the State,

that the November 14 check would not be paid by the drawee. Thus, we and found, based upon other evidence, that the defendant knew or believed statement.” A rational jury could have disbelieved the defendant’s testimony

[the loan was definite]; nor did he produce any documentation to support this

The State argues, however, that the defendant “did not say who told him

that he was told “it was definite.”

expected it to go through while he was away. In fact, the defendant testified

would be honored was that he had applied for a mortgage loan and that he Nevertheless, crucial evidence as to the defendant’s belief that the checks would be good in the near future and that he was waiting for “a transfer.”

The evidence also indicated that the defendant told Auger that the checks

concurred.

good immediately and Auger held the checks on the basis of that information.

evidence, the defendant told Auger that at least one of the checks would not be sufficient to support the defendant’s conviction. According to the undisputed Under the statute as interpreted herein, the evidence at trial was

, 152 N.H. at 311.

tending to weaken, in the evaluation of whether the mens insufficiency of funds and an agreement to hold the check may be evidence drawee.” RSA 638:4, IV(b). Knowledge on the part of the payee of an

as a matter of law to negate the mens insufficiency of funds at the time the check was issued, but it does not operate

passed the check knowing or believing that the check would not be paid by the

the defendant’s reading of the statute.

satisfied, the importance of evidence that the defendant knew of an

The required mental state is clearly expressed to be “that the person issued or to not require an intent to defraud), cert. denied, 679 A.2d 655 (N.J. 1996). 672 A.2d 1261, 1262-63 (N.J. Super. Ct. App. Div.) (construing similar statute even a reference to, an intent to defraud. See RSA 638:4; accord State v. Kelm, Nowhere in the plain language of RSA 638:4 is there a requirement of, or