FILED

February 18, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY 1998 SESSION

STATE OF TENNESSEE, )

) C.C.A. NO. 01C01-9705-CR-00180

Appellee, )

) SMITH COUNTY

VS. )

) HON. J.O. BOND,

MICKEY HARRIS, ) JUDGE

)

Appellant. ) (Worthless checks)

FOR THE APPELLANT: FOR THE APPELLEE:

JACKY O. BELLAR JOHN KNOX WALKUP

212 Main St. Attorney General & Reporter

P.O. Box 332

Carthage, TN 37030 CLINTON J. MORGAN

Counsel for the State

 450 James Robertson Pkwy.

Nashville, TN 37243-0493

TOM P. THOMPSON

District Attorney General

DOUGLAS HALL

Asst. District Attorney General

111 Cherry St.

Lebanon, TN 37087

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY,

Judge
2

O P I N I O N

The defendant was indicted in October 1995 on three counts of passing

worthless checks. Following a trial, a jury found him guilty of two counts and ordered him

to pay restitution in the amount of ten thousand three hundred sixty-four dollars and

eighty-one cents ($10,364.81). The trial court sentenced the defendant to three years

for each of his convictions and immediately placed him on Community Corrections. The

sentences are to run consecutively. In this appeal as of right, the defendant challenges

the sufficiency of the evidence. After a review of the record and applicable law, we find

that the evidence supports the jury’s verdict. Therefore, we affirm the judgment of the

court below.

The defendant’s convictions stemmed from his dealings with Rankin Oil

Company in July and August of 1995. The defendant operated a BP Gas station in

Gordonsville, Tennessee, and he purchased his gasoline from Rankin Oil. The

defendant and Rankin Oil began their business relationship in 1992. Eric Rankin, vice

president of Rankin Oil, testified that initially Rankin Oil would deliver a load of gasoline

to the defendant and the defendant would subsequently pay for the amount of gasoline

received. However, Rankin testified that in June of 1995, the defendant had become

“several loads behind” and a new arrangement had been reached. Rankin testified that

he had told the defendant he would have to pay in advance for all future deliveries of

gasoline. As a result of this agreement, prior to gasoline delivery, the defendant would

leave a check with Rankin Oil with nothing but the signature line completed. The

gasoline would then be delivered and the invoice signed. The defendant, who had

collected credit card receipts for gas purchases, would then take the credit card receipts

to Rankin Oil in order to pay for part of the delivered gasoline. Once the credit card
1

Evidently, the third check was not presented to the bank within thirty days of its issue. Such

delay negates the presumption of the issuer’s fraudulent intent or knowledge or both of insufficient

funds. T.C.A. § 39-14-121(b )(2).

3

receipts were subtracted from the invoice, the defendant’s check was completed by a

Rankin Oil employee for the remaining amount of the invoice.

The first count of the indictment resulted from a transaction in mid-July

1995. Rankin testified that about this time, the defendant had left a check at Rankin Oil

and had requested that gasoline be delivered. An invoice showed that gasoline had been

delivered on July 18, 1995. The defendant then took his credit card receipts to Rankin

Oil in order to partially pay for the delivered gasoline. Subsequently, the defendant’s

check was completed. It was dated July 28, 1995, and reflected an amount of five

thousand two hundred twenty-nine dollars and thirty-eight cents ($5,229.38). Rankin

further testified that the check had been rejected by Citizens Bank on July 31, 1995, for

insufficient funds. Rankin stated that the defendant had been provided the ten day legal

notice as is required by statute.

 The second count of the indictment involved a similar transaction. Again,

the defendant left a check with Rankin Oil that contained only his signature. Gasoline

was delivered to the defendant on July 28, 1995. The defendant paid part of the invoice

with his credit card receipts and the remaining amount was filled in on his blank check.

This check was dated August 7, 1995, and was written in the amount of five thousand

one hundred thirty-five dollars and forty-three cents ($5,135.43). 

The third count of the indictment stemmed from a transaction similar to the

first two. Because the jury acquitted the defendant of this count, we have no reason to

discuss it further.1
4

Tennessee Code Annotated § 39-14-121 provides:

(a) A person commits an offense who, with fraudulent intent

or knowingly:

(1) Issues or passes a check or similar sight order for the

payment of money for the purpose of paying any fee, fine,

tax, license or obligation to any governmental entity or for the

purpose of obtaining money, services, labor, credit or any

article of value, knowing at the time there are not sufficient

funds in or on deposit with the bank or other drawee for the

payment in full of the check or order, as well as all other

checks or orders outstanding at the time of issuance.

. . .

(3) This subsection shall not apply to a post-dated check or

to a check or similar sight order where the payee or holder

knows or has good and sufficient reason to believe the

drawer did not have sufficient funds on deposit to the

drawer’s credit with the drawee to ensure payment.

(b) For purposes of this section, the issuer's or passer's

fraudulent intent or knowledge or both of insufficient funds

may be inferred if:

(1) The person had no account with the bank or other drawee

at the time the person issued or passed the check or similar

sight order; or

(2) On presentation within thirty (30) days after issuing or

passing the check or similar sight order, payment was

refused by the bank or other drawee for lack of funds,

insufficient funds or account closed after issuing or passing

the check or order, and the issuer or passer fails to make

good within ten (10) days after receiving notice of that

refusal.

The defendant argues that a check with only a signature is comparable to

a post-dated check and thus is not covered under the worthless check statute. The

Supreme Court has held that a post-dated check is not a “check” for purposes of the

worthless check statute. State v. Stooksberry, 872 S.W.2d 906 (Tenn. 1994). However,

we find that an incomplete check is not the same as a post-dated check. The Uniform

Commercial Code defines a check as “a draft drawn on a bank and payable on demand.”
2

The re vised U niform Com mer cial Code went into e ffect July 1, 1 996. 

5

T.C.A. § 47-3-104(2)(a) (1992).2

 A draft is an order, meaning it is a “direction to pay and

must be more than an authorization or request.” The person to pay must be identified

with reasonable certainty. T.C.A. §§ 47-3-102 & 104 (1992). A check is payable on

demand if it is payable at sight or on presentation or does not state a time for payment.

T.C.A. § 47-3-108 (1992). Thus, the defendant’s check was payable on demand and was

not a post-dated check. We further note that the fact that the check did not include an

amount does not affect its status as a check. See T.C.A. § 47-3-115 (1992)(defining an

incomplete instrument). Therefore, we conclude that the defendant’s check containing

only his signature does fall under the parameters of the worthless check law. The

defendant’s assertion that his check was a post-dated check is incorrect.

The defendant also challenges his convictions by alleging that Eric Rankin

and Rankin Oil “had knowledge or at least good and sufficient reason to believe the

[defendant] did not have sufficient funds on deposit.” He argues that because Mr. Rankin

had started making the defendant pay for gasoline prior to delivery, Mr. Rankin should

have known that the defendant would not have sufficient funds to cover the written

checks. We do not agree. Knowledge of a lack of sufficient funds cannot be inferred

based on the prior relationship between these parties. See State v. Newsom, 684

S.W.2d 647 (Tenn. Crim. App. 1984). This argument is without merit.

In conclusion, the evidence demonstrated that the defendant gave two

checks to Rankin Oil to pay for two future deliveries of gasoline. These checks were

returned by the bank due to insufficient funds. The defendant was properly notified of the

bank’s refusal to pay, but he did not remedy the situation by paying Rankin Oil what it

was due. Thus, fraudulent intent or knowledge or both of insufficient funds can be
6

inferred from the defendant’s failure to make the checks good. The evidence further

demonstrated that Rankin Oil had no knowledge or sufficient reason to believe that the

defendant did not have sufficient funds in his bank account. The defendant’s convictions

are clearly supported by the evidence. The judgment of the court below is affirmed.

______________________________ 

JOHN H. PEAY, Judge

CONCUR:

______________________________

JERRY L. SMITH, Judge

______________________________ 

THOMAS T. WOODALL, Judge