No. 84-306 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsALLEN DALE McHUGH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

In Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Cannon & Sheehy; Edmund F. Sheehy, Jr., Helena, 

llontana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mike PlcGrath, County Attorney, Helena, Montana 

- - -- 

Submitted on Briefs: Oct. 18, 1984 

Decided: March 26, 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 receipts 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 accounts became overdrawn. In one statement period no deposits 

were made by McHugh to his First Security Bank account despite 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 himself 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 a check 

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 accomplish a single criminal objective - or & - a common purpose - or 

plan which results in the -- repeated commission --- 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 defendant issued or delivered checks to numerous Helena merchants 

with the purpose of securing their property, labor or services. 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 evidence overwhelmingly supports a finding that McHugh repeatedly issued checks to local merchants without sufficient funds 

on deposit to cover those checks. Despite receiving bank 

statements, overdraft notices and certified letters indicating 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, evidencing 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 continuing criminal design. 

McHugh further argues that he did not engage in a continuing 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 required by § 45-6-316(l), MCA. In this regard, McHugh contends 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 covering others. He further argues that he should not be convicted 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 evidence 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 understanding 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 refused the instructions. 

Section 45-6-316 (I), MCA does not require actual knowledge 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 definition 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 instruction, 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 properly 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 reasonably believe his checks would be honored. The jury rejected 

these arguments. 

We hold that the District Court properly refused defendant's proposed jury instructions no. 16 and 17. 

We affirm the defendant's co 

We concur: ,/ 

/A Chief Justice