Overdraft Protection & Payment No Defense to Check Charge
Published: April 21, 2011
Tags: Criminal, Judge Randolph A. Beales, Virginia Court of Appeals
Defendant is not entitled to have her bench trial convictions for felony check uttering reversed based on her testimony about participating in an overdraft protection program and delayed notice of dishonor due to her eviction, the Court of Appeals said.
After being evicted from her apartment, defendant cashed two checks totaling $425 at a store over a two day period. The checks were drawn on a federal credit union that denied payment twice, one week and two weeks later, the second time because defendant’s account was closed. Defendant testified she met with a credit union branch manager to review her account before it was closed and the two checks did not come up. The store sent defendant a certified letter demanding payment in five days. The post office returned the letter as undeliverable with the notation “unable to forward.” One year later a police officer informed defendant of an outstanding arrest warrant and two months later, defendant paid the store for the checks and associated fees.
On appeal defendant argues the evidence was insufficient to prove intent to defraud. We affirm. The appellate standard of review asks if any rational trier of fact could find the essential elements of a crime beyond a reasonable doubt. Virginia’s Bad Check Statute, Va. Code § 18.2-181, aims to discourage writing bad checks and Va. Code § 18.2-183 establishes a rebuttable presumption requiring prompt payment within five days of notice to avoid it. The trial court was not required to credit defendant’s testimony about the overdraft protection program. Defendant acknowledged prior felony convictions. She admitted being unsure of her balance when the checks were written and was unable to attest to knowing about the two checks when she met with the credit union manager. She admitted being evicted for financial difficulties shortly before writing the checks and her failure to inform the store of her address change indicates an intent to make herself more difficult to locate.
Charles v. Commonwealth (Beales), Docket No. 1054-10-2, April 19, 2011, Chesterfield Circuit Court (Burgess), Todd M. Ritter for appellant, John W. Blanton, AAG.VLW 011-7-137(UP), 9 pp.