# FILED
February 18, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JANUA RY 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9705-CR-00180 Appellee, ) ) SMITH COUNTY VS. ) ) HON. J.O. BOND, MICKEY HA RRIS, ) JUDGE ) Appellant. ) (Worthless checks)

FOR THE APPE LLANT: FOR THE APPELLEE:
JACK Y O. BEL LAR JOHN KNOX WALKUP 212 Main St. Attorney General & Repor ter P.O. Box 332 Carthage, TN 37030 CLI NTO N J. MOR GAN Counsel for the State 450 Jame s Roberts on Pkwy. Nashville, TN 37243-0493 TOM P. THOMPSON District Attorney General DOUGLAS HALL Asst. District Attor

ney General 111 Cherry St. Lebanon, TN 37087

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The defendant was indict ed in O ctober 1995 on three counts of passi ng worthless checks. Following a trial, a jury found him guilty of two counts and ordered him to pay restitution in the amou nt of ten t housand three hundred sixty -four dollars and eighty-one

cents ($10,364.81). The trial court sen tenced the defendant to three years foreach of his convictions and immediately placed him on Community Correction s. 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 rec ord and applicable law, we find that the evidence supports the j ury’s verdict. Therefore, we affirm the judgment of the court bel ow.

The defendant’s convictions ste mmed from his de alings with Rankin Oil Company

in July and Augu st of 1 995. T he defendant operated a BP Gas station in Gor donsvi lle, Tennessee, and he purchased his g asoline from Rankin Oil. The defendant and Rankin Oil be ga n their business relationship in 1992. Eric Rankin, vice president

of Rankin Oil, testified that i nitially Rankin Oi l would deliver a load of gasoline to the defendant and the defendant would subsequently pay for the amount of gasoline received. However, Rankin tes tified that i n June of 1995, the defendant had become “several loads behind” and a new arrangement had been reached. Rankin testified tha t he had told the defendant he would hav e to pay in advance for all future d eliveries of gasoline. As a result of this agreement , prior to gasoline delivery, the defendant would leave a check with Rankin Oil with not hing but the signature l ine completed. The gasoline would then be de livere d and the invoice signed . The defendant, who had collected credit card receipts for gas purchases, would

then take the credit card r eceipts t o Rankin Oil in order to pay for part of the delivered gasoline. Once the credit card1 Evidently, the third che ck was not presented t o the bank wit hin thi rty day s of its i ssue. Such delay negat

es the presumption o f the issue r’s fraud ulent i ntent or knowl edge or both of insuffi cient funds. T.C.A. § 39-14-121(b )(2). 3 receipts were subtracted from the invoice, the defendant’s check was c omplete d by a Rankin Oil employee for the remaining amount of the invoic e.

The first count of the indictment res ulted from a transaction in m id- July 1995. Rankin testified that about thi s time, the defendant had left a check at Rankin Oil and had requested that gasoline be delivered. An inv oice showed that gasoli ne had been delivered on July 18, 1995. The defendant then too k his credit card receipts to Rankin Oil in order to partially

pay for the delivered gasoli ne. Subsequently, the defendant’s checkwas com ple ted. It was dated Ju ly 28, 199 5, and ref lected an amount o f five thousand two hundr ed twenty-nine dollars and thirty-eight cents ($5,229.38). Rankin further testified that the check had been r ejected by

Citizens Bank on July31, 1995, for insufficientfunds. Rankin stated that the defendant had been provided the ten day legal notice as is required by statute.

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

left a chec k with Rankin Oil that contained only his si gnature. Gasoline
was delivered to the defendant on Jul y 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 theindictment stemmed from a transacti on similar to the first two. Because the jury acquitted the defendant of this count, we have no reason to discuss it further. 14 Tennessee Code Annotated § 39-14-12 1 provides: (a) A person commits an offense who, with fraudulent i ntent or knowingl y: (1) Issues or passes a check or sim ila r sight order for the paymentof money

for the p urpose o

f paying any fee, fine, tax, license or obligatio n to any governmental entity or forthe purpose of obtaining money, serv ices, labor, credit or

any article of val ue, kno wing at the time there a re not sufficient funds in or on deposit with the bank or other dr awee for the paymentin full o f the check or order, as we ll as all other checks or orders outstandi ng at the time of issuance.

. . . (3) This subsection shall not apply to a post-dated check or to a check or similar sight or der where the payee or holder knows or has g ood and s uff icient reason to believe the drawer did not h ave suffi cient fu nds o n deposit to the drawer’s credit w

ith the drawee to ensure pay ment. (b) For purposes o f this section, the issuer's or passer's fraudulent in te nt or knowledge or both of insufficient funds may be i nferred 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 o r si milar sight order, pay ment was refused by the b ank or other drawee for lack of funds, insufficientfunds or

account closed after issuing or passing the ch eck o r order, and the issuer or passer fails to make good within t en ( 10) days after receiv ing notice of that refusal.
The defendant argues that a check with only a signature is comparable to
a post-dated chec k and thu s is not covered under the worthless check st atute. The Su preme Court h as held that a pos t-dated check i s not a “

check” for purposes of t h e worthless check statute. State v. Stooksberry , 872 S.W.2d 906 (Te nn. 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
m ust be more than an authorization or request.” The person to pay must b e identifie d with reasonable certainty. T.C.A. §§ 47-3-102 & 104 (1992). A check is payable on demand if it is payable at sig ht 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)(defini ng an incomplete instrument). Therefore,we conclude that the defendant’s check containing onlyhis signa

ture does fall

under the par

ame ters of the worthless check l aw. The defendant’s assertion that his c heck was a post-dated check is incorrect.

The defendant also challenges his convictions by alleging that Eric Rankin and Rankin Oi l “had knowledge or at least good and sufficient reas on to believe the [defendant] did nothave sufficient funds on deposit.” He argues that because Mr. Rankin had started making the de fendant pay for gasoline prior to delivery, Mr. Rankin should have known that

the defen dant would not have sufficient funds to cover the wri tten checks. We do not agree. Knowledge o f a l ack of sufficient funds cannot be inferred based on the prior relationshi p between these parties

. See State v. Newsom , 684 S.W.2d 647 (Tenn. Crim. App. 1984). This argument is without merit.

In conclusion, the evid e nce demo nstrated that the defend ant gave two checks to Ran kin Oil to p ay for two f uture de liveries of gasoline. These ch ecks we r e returned by the bank due to insufficient funds. The defendant was properly notified of the bank’s refusal to pay, but he d id not remedy the situation by paying Rankin Oil what it
was due. Thus, fraudule nt i ntent or knowledge or both of insufficient funds can be6

inferred from the defendant’s failure to make the c hecks good. The evidence further demonstrated that Rankin Oil had no know ledge 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 judg ment of the court below is affirmed.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ JERRY L. SMITH, Jud ge

______________________________ THOMAS T. W OODALL, Judge