State Of Louisiana VS Beryl Anne Deluzain
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 KA 1893 STATE OF LOUISIANA VERSUS BERYL ANNE DELUZAIN Judgment Rendered May 7 2010 A V Appealed from the Twenty Second Judicial District Court In and for the Parish of St Tammany State of Louisiana Case Number 393 975 Honorable Peter Garcia Presiding Walter P Reed Counsel for Appellee District Attorney State of Louisiana Kathryn Landry Assistant District Attorney Baton Rouge LA Marion B Farmer Counsel for Defendant Appellant Covington LA Beryl Anne Deluzain BEFORE CARTER C GUIDRY AND PETTIGREW JJ J G GUIDRY J The defendant Beryl Anne Deluzain was charged by bill of information with issuing worthless checks in an amount over 500 a violation of La R 14 00 S 71 She pled not guilty Following a trial by jury the defendant was found guilty as charged The trial court deferred imposition of sentence under La C Cr P art 893 and placed the defendant on supervised probation for four years The court also ordered the defendant to pay 33 in restitution to the victim The defendant 06 445 now appeals urging three assignments of error as follows I The evidence as a whole was insufficient to prove beyond a reasonable doubt Beryl Deluzain was guilty of issuing worthless checks in an amount over 500 00 IL The trial court erred when it instructed the jury specific intent to defraud existed at the time the check was presented and not at the time it was issued The III trial court erred when it restricted defense counsel voir dire in s regards to the issuer of a check must have specific intent to defraud at the time the check was written Finding the evidence insufficient to prove an essential element of the crime we reverse the conviction and sentence FACTS In October 2003 the defendant and Allain Poux entered into an agreement for the sale of European Expressions Inc Mr Poux the owner of an outdoor garden supplies business and the property where it was located agreed to sell the business s inventory and equipment to the defendant He also agreed to allow the defendant to lease the property A payment plan was devised wherein the defendant agreed to pay Mr Poux installments of 2per month for the inventory and equipment of the 00 250 business and 2per month to lease the property The lease and merchandise 00 500 payments were scheduled to commence in November 2003 In connection with the payment agreement the defendant tendered 24 postdated checks to Mr Poux twelve 00 250 2 checks for the monthly inventory installment payments and equipment 2 twelve 2 checks for the first year of lease payments 00 500 Two checks were postdated for the first of each month through November 2004 For the first eight months of the agreement the monthly checks were presented to the bank on the date indicated on the draft The bank honored each of the checks However when Mr Poux presented the checks for the July 2004 payments the checks were returned by the bank unpaid insufficient funds Thereafter both checks for August 2004 the inventory payment check for September 2004 both checks for October 2004 and both checks for November 2004 were also returned due to insufficient funds upon presentment After unsuccessfully attempting to collect the money for the nine returned checks from the defendant Mr Poux sent the defendant certified letters demanding that she honor the unpaid checks within ten days The defendant did not respond to the demands Mr Poux subsequently reported the matter to the St Tammany Parish District Attorney Office s Sam Gebbia the director of the Worthless Checks Division of the District Attorney s Office testified that once worthless checks complaints are submitted to the District s Attorney Office three separate demand for payment letters are sent to the issuer of the unpaid checks He explained that when the defendant herein failed to respond to the District Attorney s collection attempts a warrant was secured for her sOffice arrest SUFFICIENCY OF THE EVIDENCE In cases such as this one where the defendant raises issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors the reviewing court should preliminarily determine the sufficiency of the evidence before discussing the other issues raised on appeal State v Hearold 603 So 2d 731 734 La 1992 The sufficiency issue must be decided first because a finding of insufficient evidence to 1 In her brief the defendant claims there were eleven returned checks However the evidence and the bill of information reflect that there were only nine returned checks 3 support the guilty verdict bars the retrial of a defendant based on the constitutional protection against double jeopardy Thus all other issues would be rendered moot State v Davis 01 3033 pp 2 3 La App 1st Cir 6 822 So 2d 161 163 02 21 Accordingly we will first determine whether the evidence was sufficient to support the defendant conviction for issuing worthless checks s A conviction based on insufficient evidence cannot stand as it violates due process See U Const amend XIV La Const art I S 2 The standard of review for the sufficiency of the evidence to uphold a conviction is whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude that the state proved the essential elements ofthe crime beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S 2781 2789 61 L 560 S Ct 2d Ed 1979 See also La C Cr P art 821 State v Mussall 523 So 2d 1305 1308 B 09 La 1988 When analyzing circumstantial evidence La R 15 provides assuming S 438 every fact to be proved that the evidence tends to prove in order to convict it must exclude every reasonable hypothesis of innocence This statutory test is not a purely separate one from the Jackson constitutional sufficiency standard Ultimately all evidence both direct and circumstantial must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt State v Shanks 97 1885 pp 34 La App 1 st Cir 6715 So 2d 157 159 98 29 The defendant argues the evidence presented at the trial of this matter was insufficient because the state failed to prove that she intended to defraud Mr Poux when she issued the series of checks in connection with the business agreement Since intent to defraud is an essential element of the crime charged she asserts her conviction and sentence must fall In response the state argues that it was entitled to the presumption of evidence of intent to defraud based upon the defendant sfailure to 4 pay following notice that the checks she issued were dishonored upon presentation Louisiana Revised Statutes 14 provides i worthless a 1 A 71 ssuing checks is the issuing in exchange for anything of value whether the exchange is contemporaneous or not with intent to defraud of any check draft or order for the payment of money upon any bank or other depository knowing at the time of the issuing that the offender has not sufficient credit with the bank or other depository for the payment of such check draft or order in full upon its presentation Louisiana Revised Statutes 14 1 A provides tSection shall apply to a 7 1 b his check draft or order tendered for satisfaction in whole or in part of payments due on installment contracts open accounts or any other obligation for which the creditor has authorized periodic payments or the extension of time in which to pay Considering the language of the statute it is clear that the intent to defraud must exist at the time the check is issued i e coincident with the first delivery of the instrument in complete form La R 14 Reporter Comment It is assumed that the S 71 s following definition of issuing in Section 191 of the N former 7 L S I R 1911 will be followed Issue means the first delivery of the instrument complete in form to a person who takes it as a holder See also La R 10 a issue means S 3105 the first delivery of an instrument by the maker or drawer whether to a holder or nonholder for the purpose of giving rights on the instrument to any person Furthermore the fact that La R 14 makes the worthless check S 71 b 1 A statute applicable to checks issued for payments due on installment contracts and open accounts does not change the need for intent to defraud at the time of issuance This section of the statue does not presuppose that the check for payment on the named credit accounts will be postdated Therefore in order to convict the defendant in this case the state was required to prove 1 that the defendant issued a check in exchange for something of value 2 with the intent to defraud at the time of issuance and 3 with the knowledge that at the time she wrote the check she did not 5 have enough money in her account for the check to clear when presented See State v Tullier 504 So 2d 1001 1002 La App 1st Cir 1987 Intent is a question of fact to be decided by the trier of fact It need not be proven as a fact but may be inferred from the circumstances See State v Broaden 992124 p 18 La 2780 So 01 21 2d 349 362 cert denied 534 U 884 122 S 192 151 L 135 2001 S Ct 2d Ed The defendant in this case does not dispute that she issued the postdated checks to Mr Poux as payment for the leasing of the property for one year and for twelve installment payments on the equipment and inventory It is also not disputed that the defendant was aware at the time of the issuing that she did not have sufficient credit with the bank to cover all of the checks Thus as previously noted the sole issue presented herein is whether the essential element of intent to defraud was proven At trial the state relied on the statutory presumption set forth in the worthless checks statute to prove fraudulent intent Louisiana Revised Statutes 14 2 A 71 provides The offender failure to pay a check draft or order issued for value s within ten days after notice of its nonpayment upon presentation has been deposited by certified mail in the United States mail system addressed to the issuer thereof either at the address shown on the instrument or the last known address for such person shown on the records of the bank upon which such instrument is drawn or within ten days after delivery or personal tender of the written notice to said issuer by the payee or his agent shall be presumptive evidence of his intent to defraud In State v Lindsey 491 So 2d 371 La 1986 the Supreme Court concluded that the presumption provided for in La R 14 is a permissive presumption since S 71 the trier of fact is free to accept or reject the inference it provides The rebuttable presumption allows but does not require the trier of fact to find that the defendant possessed the intent to defraud based upon notification by certified mail and failure to pay within ten days The presumption is valid only in cases where the evidence supports the inference it suggests See State v Lindsey 491 So 2d at 376 377 Z In the instant case the defendant argues that the presumption of intent to defraud was rebutted by evidence adduced at the trial She claims that the fact that 1 almost eight months and payment of approximately 60 had passed before 00 000 the first check was dishonored 2 she mortgaged her home to assist in the business endeavor and 3 she later tried to get her brother to take over the business when she could no longer make the payments all show that she did not intend to defraud Mr Poux Thus she argues that the permissive presumption was not supported by the facts of this case and was insufficient to prove the necessary element of intent to defraud In response the state notes that the defendant failed to voluntarily vacate the premises or return any of the purchased merchandise and she never made any attempt to pay the checks after they were dishonored The state argues that these facts are evidence of the defendant intent to defraud Mr Poux s After a thorough review of the record before us we agree with the defendant s argument Although the defendant does not dispute that she failed to pay Mr Poux the amount of the checks within ten days after receiving notice of nonpayment of the checks the evidence in this case does not support the inference suggested by the rebuttable presumption Thus the presumption was rebutted by the evidence As previously noted the defendant testified that the payment arrangements were made using postdated checks because she did not have sufficient funds for full payment when the checks were issued It was the understanding of both parties that Mr Poux would hold the postdated checks until the first of each month at which time the defendant would have sufficient funds in her bank account to cover the checks Mr Poux complied with the agreement and held each of the postdated checks until the date of maturity before presenting it for payment The arrangement proceeded without a problem for approximately eight months It was not until July 2004 when the first check was dishonored 7 At the trial of this case the defendant did not dispute that she received notice from Mr Poux that several of her checks had been returned unpaid The state presented evidence that the defendant was given notice via certified mail demanding payment The defendant also admitted that she did not remit payment in response to the demand letters She further acknowledged that at the time of the trial over four years later the checks remained unpaid However the defendant denied possessing intent to defraud Mr Poux at the time of the issuance of the checks She testified that she entered into the agreement with the intentions of successfully running the business and fulfilling the payment agreement This she claimed was evidenced by the payment of the first eight months of checks The defendant testified that her failing health and a decline in her business made it impossible for her to deposit sufficient funds into her account to cover the checks As evidence that she lacked any fraudulent intent the defendant further testified that once the checks began to bounce she sought other means to secure the funds to pay Mr Poux The defendant introduced a copy of a letter dated July 27 2004 wherein Mr Poux agreed to allow the defendant to transfer the lease of the property to her brother Bryan Deluzain The defendant explained that this letter had been requested by financial institutions during Bryan Deluzain efforts to secure the financing necessary to take over the s business Unfortunately Bryan Deluzain was unable to secure financing At trial in his explanation of the decision to utilize the postdated checks to facilitate the transaction Mr Poux did not indicate any deception by the defendant It appears from his testimony that he was aware that the defendant could not make an upfront payment for the business thus she did not have sufficient funds available to cover the checks He explained 2 The defendant testified she was diagnosed with pulmonary hypertension a condition she believed to be fatal Although she later learned that the diagnosis was not accurate the defendant claimed the diagnosis affected her ability to adequately run the business She further testified that the threat of hurricanes in the area caused a panic that directly affected the outdoor business N A Well at the time I don tthink she had the cash although I don t know I don tknow But I think it was a safe way for payment of the merchandise and whatnot and I believe she wanted to buy also some additional merchandise to fill up the place plants and trees so I think she needed some cash flow Q So how did it come about where the 24 checks were delivered to you Who said let do it that way s A I don tremember I think it was a mutual agreement Q And you saying that she short cash right so I understand your re s testimony A I don tknow I don know her finances but evidently she t tpay cash couldn Q Did you ask for cash up front A Well I asked for payment I didn task for cash or credit card or Q By payment what do you mean Payment for the merchandise on the property A Correct Q And you knew that she didn thave cash up front to cover that is that correct A I don know t Q Excuse me A I don know t Q Did she ever tell you that A I don think so t The gravamen of the offense of issuing a worthless check is the issuer s fraudulent intent at the time the check is issued Although the statute creates a permissible inference or presumption of fraudulent intent the inference may be rebutted by the defendant evidence and alone it is not enough to sustain a s conviction corroborating evidence of some other type of deception is necessary to establish intent See State v Jones 400 So 2d 658 La 1981 M The facts of this case particularly the payment agreement indicate the existence of a credit arrangement between the defendant and Mr Poux The act of tendering postdated checks under these facts was nothing more than a representation by the defendant the issuer that she expected to have funds in the bank on a future date to satisfy the checks The fact that the defendant acknowledged at the time of issuance that she did not have sufficient funds to cover the checks is strong evidence against any intent to defraud The defendant was forthcoming with Mr Poux and did not attempt to deceive him regarding her inability to make full payment Also the fact that Mr Poux agreed to accept the checks that arguably he knew were worthless at the time of issuance serves to relieve the defendant of any criminal responsibility under La R 14 because no intent to defraud at the time of issuance can be S 71 proven The defendant sfailure to honor the postdated checks as agreed could be pursued in a civil action but it falls short of the conduct proscribed in La R S 71 14 The state argues that the facts of this case are similar to those in State v Washington 29 La App 2d Cir 9 700 So 1068 wherein a 784 97 26 2d conviction for issuing worthless checks was upheld using the presumption of intent to defraud A notable distinction is that there was conflicting evidence in Washington regarding whether the defendant disclosed that she did not have sufficient credit with the bank when she issued the check The defendant claimed she disclosed that she did not have sufficient funds but the sales manager of the car dealership to whom she issued the check testified that the defendant did not tell him she did not have the money when he accepted the check In affirming the defendant conviction in that s case the appellate court noted that the trial court found among other things that the defendant did not advise the sales manager that the money was not in her account 3 The record reflects Mr Poux also filed a civil action against the defendant based upon her breach of the agreement 10 when she issued the check State v Washington 29 at pp 67 700 So 2d 784 at 1074 The defendant sdeceptive failure to disclose her lack of funds to cover the check which was not postdated coupled with her failure to honor the check within the 10 day period after demand her failure to return the vehicle for several months after the demand and her failure to cooperate with the dealership were sufficient to support the statutory presumption of intent to defraud In this case unlike Washington it is undisputed that the checks were postdated Postdated checks can be used in situations where the funds are not available at the time of issuance but the maker fully intends that the funds will be available when the checks are presented The defendant described the existence of such an agreement and Mr Poux s testimony does not dispute it he essentially claimed he did not know if the defendant had all of the funds in her account when the checks were issued but he nevertheless clearly expected that the funds would be there as of the date of the check The evidence herein simply does not support an inference of intent to defraud See State The defendant subsequent actions of s v Jones 400 So 658 La 1981 2d continuing to occupy the premises until evicted failing to return merchandise to Mr Poux and failing to make good on the checks are not sufficient to prove intent to defraud at the time of issuance This assignment of error has merit For the foregoing reasons the defendant conviction and sentence are s reversed CONVICTION AND SENTENCE REVERSED Since resolution of the assignment of error challenging the sufficiency of the evidence results in a reversal of the defendant conviction and sentence we pretermit discussion of the remaining s assignments of error 11 STATE OF LOUISIANA STATE OF LOUISIANA COURT OF APPEAL VERSUS FIRST CIRCUIT BERYL ANNE DELUZAIN 2009 KA 1893 BEFORE CARTER C GUIDRY AND PETTIGREW JJ J Carter C dissenting J I respectfully dissent from the majority reversal of the defendant s s conviction and sentence and would affirm the defendant conviction and sentence s The defendant argues the evidence presented at the trial of this matter was insufficient because the state failed to prove that she intended to defraud Mr Poux when she issued the series of checks in connection with the business agreement The defendant failure to comply with the 10day demand letter created a s rebuttable presumption that she issued the checks with the intent to defraud See La R 14 A finding of intent to defraud was further bolstered by the S 71A 2 s defendant 1 failure to voluntarily vacate the premises although she was not paying the rent 2 failure to return merchandise she had not paid for and 3 failure to take any action to make good on the checks for a debt she acknowledged she owed See State v Washington 29 La App 2 Cir 9 700 So 784 97 26 2d 1068 1073 1074 In my opinion the evidence when viewed in the light most favorable to the prosecution was sufficient to prove beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence all of the essential elements of the offense of issuing worthless checks See Jackson v Virginia 443 U 307 319 99 S 2781 2789 61 L 560 1979 La S Ct 2d Ed Code Crim P art 82113 State v Brown 2003 0897 La 4 907 So 1 05 12 2d 18 cert denied 547 U 1022 126 S 1569 164 L305 2006 S Ct 2d Ed I also find no merit in the defendant sremaining assignments of error The defendant argues the trial court erred when it instructed during voir dire that the offense of issuing worthless checks required specific intent to defraud at the time the check was presented and not when it was issued Improper statements of law during voir dire do not always require reversal See State v Kohler 434 So 2d 1110 1119 La App 1st Cir 1983 Any prejudicial effect suffered by the defendant was remedied when the trial court during final instructions correctly charged the jury that intent to defraud must exist when the check is issued Finally the defendant maintains the trial court erroneously limited her right to full voir dire examination by preventing defense counsel from questioning potential jurors about the requirement that intent to defraud exists at the time the check is issued The disallowance of a proper question on voir dire examination does not automatically result in reversible error State v Morgan 459 So 6 9 2d La App 1st Cir 1984 writ denied 462 So 1263 La 1985 The entire voir 2d dire examination must be considered in evaluating the fairness of the trial court s ruling State v Sims 98 1304 La App 1 Cir 4 734 So 813 819 In 99 1 2d light of the entire voir dire transcript and the trial court final instructions to the s jury the trial court limitation of questioning on the issue of intent to defraud did s not unfairly restrict the defendant opportunity to fully examine the prospective s jurors as to their competency and bias For the above stated reasons I respectfully dissent and would affirm the s defendant conviction and sentence 2
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