No. 86-158 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSGREG 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, 1980 

Decided: January 2, 1987 

Fj 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. 

-- 1f- the offender - has engaged in issuin 

bad checks which are part ofa commoz ---- scheme --- or if the value -- of any property, 

labor, or services obtained - or attempted 

- to - be oEained exceeds $300, he shall - be 

fined - not - to exceed $50,000 or be 

imprisoned -- in the state prison for any 

--- term not to exceed - 10 vears. 2. - or both. 

(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 or by 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." (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 - or 3 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." (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 

th~ prevailing party. State v. Oman, (Mont. 1985) , 707 P.2d 

1117, 11.20, 42 St.Rep. 1565, 1568. The evidence clearly