Durham v. State
| Docket Number: | 2010-KA-00728-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-08-2011 Opinion Author: Barnes, J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Writing bad checks with fraudulent intent - Sufficiency of evidence - Section 97-19-55 - Jury instruction - Mandatory presumption - Issue of intent - Burden of proof Judge(s) Concurring: Lee, C.J., Griffis, P.J., Ishee, Roberts, Maxwell and Russell, JJ. Non Participating Judge(s): Myers, J. Dissenting Author : Irving, P.J. Dissenting Author : Carlton, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-03-2010 Appealed from: Forrest County Circuit Court Judge: Robert Helfrich Disposition: CONVICTED OF COUNTS I-IV, FELONY BAD CHECK, AND SENTENCED TO THREE YEARS ON EACH COUNT, WITH THE SENTENCES TO RUN CONSECUTIVELY, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS , WITH THREE YEARS SUSPENDED AND THREE YEARS OF POST-RELEASE SUPERVISION OF THE SENTENCE IN COUNT IV District Attorney: Jon Mark Weathers Case Number: 08-516CR |
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| Party Name: | Attorney Name: | |||
| Appellant: | Jim Durham |
RICHARD V. DYMOND |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LISA LYNN BLOUNT |
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| Topic: | Writing bad checks with fraudulent intent - Sufficiency of evidence - Section 97-19-55 - Jury instruction - Mandatory presumption - Issue of intent - Burden of proof |
| Summary of the Facts: | Jim Durham was convicted on four counts of writing bad checks with fraudulent intent. He was sentenced to three years in Counts I-IV, with the three years on Count Four suspended and ordered to be served under post-release supervision. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Durham argues that the evidence was not sufficient to support his convictions. Durham argues that the bad-check law under section 97-19-55 cannot be applied to checks given to discharge a pre-existing debt, and since the payees “relinquished their property to Durham in reliance up on a consignment arrangement which required Durham to pay them after the auction sale[,] . . . . the checks were in payment of the pre-existing debts created by the consignment agreement.” Thus, Durham concludes that his convictions violated the constitutional ban on imprisonment for debt under Section 30 of the Mississippi Constitution. However, as the State notes, section 97-19-55 was revised subsequent to the cases cited by Durham, and the amendments eliminated any distinction between a contemporaneous exchange or payment on a past-due account. Accordingly, there is no merit to this assignment of error. Issue 2: Jury instruction Durham argues that a new trial was warranted as a jury instruction, which tracked the statutory language of section 97-19-57(1), was unconstitutional since it “gave rise to a mandatory inference” of intent and shifted the burden to the defendant to prove his innocence. A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion. The State argues the jury instruction does not require the jury to presume any facts; rather, it merely creates a permissible inference. The necessity for resorting to presumptions disappears when there is direct and positive evidence upon the matter in issue. The jury instruction in question states that if the jury found that Durham had not paid the checks within fifteen days, this fact “shall be prima facie evidence and create a presumption of intent to defraud.” No explanation of the term “prima facie” was provided to the jury, nor was there any instruction that, regardless of the presumption, the burden of proof remained on the State to prove intent to defraud beyond a reasonable doubt. Accordingly, the language in the jury instruction created a mandatory presumption, and the circuit judge failed to shift the burden of proof away from the defendant by instructing the jury regarding the “prima facie” inference. Moreover, the giving of the instruction did not constitute harmless error. The issue of intent was a crucial element of the crime, and there were numerous references made by the State at trial in regard to section 97-19-57(1)’s fifteen-day requirement. However, Durham testified that he expected Community Bank to cover his checks as they had done in the past. Therefore, the submission of the erroneous jury instruction cannot be considered harmless error as Durham’s intent was disputed at trial, and the issue of intent directly affected the verdict. |
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