Kimberling v. State

SHIELDS, Presiding Judge.

Michael Kimberling was convicted of check deception, a class A misdemeanor, pursuant to Ind.Code Ann. § 35-48-5-5(a) (Burns Repl.1985). He appeals, challenging the sufficiency of the evidence in two respects, one of which mandates the reversal of his conviction and his discharge: Did the State establish notice was sent to Kim-berling informing him the check had been dishonored?

FACTS

Michael Kimberling operated four gas stations and had a purchasing corporation for these stations known as Southlake Marketing Incorporated, d/b/a Southlake Marketing. City Sales Incorporated is a wholesaler of tobacco, candy, and other related items, and sold merchandise to Southlake Marketing through then-salesman Joseph Kaspar. On January 24, 1985, Kimberling issued a check in the amount of $1,971.00 to pay for goods previously delivered by City Sales. That check, number 1134, was drawn on Southlake Marketing's account with Citizens Federal Savings. Before Kimberling issued the check he phoned the bank to inquire about his balance. He was told his balance at that time was $4,572.97. However, when check number 1134 was presented to Citizens Federal Savings on January 80, 1985, it was returned to City Sales marked "UNCOLL."

Kaspar was assigned the task of collecting on check number 1134 and two other Southlake Marketing checks that had been returned to City Sales. Although he had some difficulty contacting Kimberling, he eventually did so and arranged a payment schedule. Kimberling made good on the other two checks, but 1134 was not paid. Finally, Kaspar advised Kimberling orally if he failed to satisfy his account with City Sales it would seek criminal prosecution.

After Kaspar had given Kimberling this oral advisement, Joseph Sobek, credit manager for City Sales, sent a letter to South-lake Marketing, care of Michael Kimberlyn [sic]. The letter was dated March 19, 1985, and stated:

"Unless full payment of $5633,12 [sic] is received by March 25, 1985, your account will be turned over to the prosecuting attorney for legal action."

Record at 98. Kimberling was subsequently convicted of check deception in connection with check number 1134.

DISCUSSION

Kimberling argues the letter he was sent, quoted in full above, does not fulfill the required statutory notice. He points out the letter does not refer to the check number, to the fact it was dishonored, or to the amount of the check. The State, while conceding notice is an element of the offense which it must prove, argues the letter satisfied the requirement inasmuch as Kimberling had ample actual notice of the check's dishonor.

The check deception statute provides at section (e):

"(e) It is a defense under subsection (a) if a person who:

(1) Has an account with a credit institution but does not have sufficient funds in that account; and

(2) Issues or delivers a check, draft, or order for payment on that credit institution;

pays the payee or holder the amount due, together with protest fees and any service fee or charge, which may not exceed the greater of fifteen dollars ($15) or five percent (5%) (but not more than two hundred fifty dollars ($250)) of the amount due, that may be charged by the payee or holder, within ten (10) days after the date of mailing by the payee or holder of notice to the person that the check, draft, or order has not been paid by the credit institution. Notice sent in the manner set forth in IC 28-2-8-1(c) constitutes notice to the person that the check, draft, or order has not been paid by the credit institution. The payee or holder of a check, draft, or order that has been dishonored incurs no civil or criminal liability for sending notice under this subsection."

IC 85-43-5-5(e).

This court has held the sending of notice of non-payment is an element of the offense which must be proved by the State at trial.

"A construction which includes notice as part of the defense would place control of the availability of the defense in the hands of the payee or holder. The holder or payee could totally deprive a defendant of the defense of payment by intentionally not mailing notice of nonpayment and thereby nullifying the legislature's intent that such a defense can and should exist. Thus, the only interpretation that gives viability to the legislature's expressed intent that a defense shall exist is the construction that the defense is timely payment after the state has proven the element of mailing notice of nonpayment."

Suits v. State (1983), Ind.App., 451 N.E.2d 375, 381.

Contrary to the State's contention, the statute does not talk in terms of actual notice of dishonor but rather specifically requires the payee or holder of the dishonored check to mail notice to the drawer "that the check has not been paid by the credit institution." IC 35-48-5-5(e). Thus, the question is not whether Kimberling knew the check in question had been dishonored, which he clearly did, but rather, whether the payee mailed him notice of the dishonor. It did not. As noted by Kimber-ling, the letter he was sent does not refer to the check number, the bank on which it was drawn, to the fact a check was dishonored or to the amount of the check.¹ In fact, the letter is totally devoid of any information reasonably calculated to apprise Kimberling of notice his check number 1134 had been dishonored. Consequently, the State failed to meet its burden of proof on this element of the offense of check deception.

Judgment reversed and cause remanded for the entry of a judgment of acquittal.

HOFFMAN, J., concurs. STATON, J., dissents, with separate opinion.

1 . The $5633.12 amount in the letter necessarily included amounts owed on an open account inasmuch as the three checks which were returned, two of which were paid, do not total that amount.