whole case this case marcella nassir which i'm not sure i'm pronouncing that correctly i had substantial college but you know not so my first language by any means was running a restaurant decatur undisputedly legitimate business fail because apparently her expenses exceeded her income it's not a crime to run a failed business and not everyone who writes a bad check commits a crime sometimes it's merely simply lying she clearly  isn't enough money at that time but intends to have enough money to cover that check when it gets presented and i think that is exactly what we have here we have a high volume account we have a business where money is coined gain it going out last sequence between the third fourth and pager he's a draw on a legitimate bank account this is not stolen account this is not a case where a more typical client of mine opens a checking account for a single minimal amount and then starts writing checks exceeds that minimum out without ever putting any more in three thousand dollars committed this account in the month of july including almost three thousand july seventeenth the day before the first check for fifteen hundred is written to mr hol i should say the first on a check unfortunately or fortunately i don't know no one asks who some of these other checks that cleared went to which i'll get to a moment another eighty five hundred dollars over twice  so i don't know if that person if that was holding or not but that person had presented more than once but he got paid check fifteen ninety two which is in the middle of a sequence also gets paid and that's for a thousand and seventy nine yes but all it says that later attempts to repay were not pay are not relevant to intent to defraud at the time the checks  twenty three dollars twenty cents four hundred fifty pounds withdraw is withdrawn for a fifty from the out and some of these are photocopied fees but the vast majority are either overdraft charges or not sufi's which are all thirty four bucks a pop and so i'm going to bet over a thousand anyway it was you know clearly i think you could you could even fairly say that whoever was in charge or apparently not in charge of monitoring the balance this was a business that she had a lot of money going in and not a great town it was up to the jury to determine the issue of whether or not he had the intent the fraud right i'm saying there's no rational basis for that and you look at the case law which of course the jur jury isn't told these cases that say you know just you know just because there's evidence about a conversation that occurs after the checks are not paid about whether she's going to repay them or not they're not told they're not structured that you know actually of any intent to defraud because again i don't see how is it attempted fraud when you have thousands of dollars coming in checks twenty the last thirty checks have cleared checks being written at the same time are clearing what about the stop payment he took march and that that's not enough you can't just say somebody should check and then later stop payment on it but that's a time to defrock with out more contrary to the statute with which specifically sense that that the defendant failed to have sufficient funds in the count when the checks delivered is evidence of both of the elements of the required mental state also we have numerous not sufficient funds fees overdraft charges there were fifteen overdraft charges fifteen on sufficient funds fees they were assessed on roughly half ten of the twenty two business days in the month of july wife the shipper case no relation the number of bad checks in this case the evidence that at the time she wrote them before she wrote them and afterward she issued a large number of bad checks a matter of a lower and negative balance her testimony other location and holdings testimony that she refused to pay the tax and that he never was paid in the fact that as the courts in shepparton predator rely on simply those cases that defendant testimony which also distinguishable because foreman had money in his account when he wrote that check it was later check he wrote the check on august fourth he had sufficient funds at that time but the next day a large ship that he had post i don't remember that record has it it strikes me that she writes these checks in july of two thousand and eight zero zero zero she's not charged until over the year later two thousand and far as what decision was made as to whether to charge the defendant whether or not those elements from present at the time she she committed that yes you can look at later circumstances but those to that point and that by the way i don't think it's a coincidence that that's the month that detective barrows goes to talk to my client about what happened and then charges are filed in september so again i think you know the timing suggests that basically criminal charges could have been assistance from keeping them from being discharged in bankruptcy and it was the state who filed this motion and levity and i think it's completely absurd to say that filing bankruptcy is further when they were discussing why a jury instruction that just says knowledge is not sufficient because it has to say knowledge attacked and it goes on to explain the differences and how it's possible to have knowledge and not intent also it's not a victim that you can have that some evidence but it's not enough and i don't think there's any contradiction between those two things also the state says this case is like shepard but it did not actually compare this case to sh and it's brief it also mentions the printer case which i distinguish there there were two total two checks written two days apart for about thirteen thousand dollars total time in the balance was six hundred at one point that th that person made a deposit of like six and a half six point seven thousand dollars which the court pointed out was enough to cover part of one one check for part of one day here well more way more money than the amount of the checks that are unpaid is coming through it's coming in to the account brunner isn't even remotely like this case in terms of the amount of money coming in again as i pointed out my reply brief her statement to detective barrow says nothing more thirteen months later is nothing more than hindsight recognition again the state doesn't explain ever how saying well we were trying to open another business with family members that wasn't doing too well and that's why there wasn't enough money in the account is nothing more than hindsight recognition i don't see where it says anything about intent to defraud let alone knowledge at the time and in fact the prosecutor doesn't argue its attempt to defraud the prosecutor only argues i think incorrectly but nonetheless only argues this shows that she didn't have the knowledge or that she had certain that she had the knowledge at the time she wrote the check