What happens when a person writes a check that is subsequently returned
“NSF” yet the person received the value of the services or the
goods? Is that always a crime? Of course not. Ohio law requires the State
to prove certain mental elements of the case. Such as “what was the
purpose” of the check, what did the person “know”, and
and was it to “defraud”.
A person acts “purposefully” when “it is his specific intention
to cause a certain result, or, when the gist of the offense is a prohibition
against conduct of a certain nature, regardless of what the offender intends
to accomplish thereby, it is his specific intention to engage in conduct
of that nature.” R.C. 2901.22(A).
R.C. 2913.01(B) defines “defraud” as “to knowingly obtain,
by deception, some benefit for oneself or another, or to knowingly cause,
by deception, some detriment to another.”
“Deception” is defined as “knowingly deceiving another or
causing another to be deceived by any false or misleading representation,
by withholding information, by preventing another from acquiring information,
or by any other conduct, act, or omission that creates, confirms, or perpetuates
a false impression in another,including a false impression as to law,
value, state of mind, or other objective or subjective fact.” R.C.
2913.01(A).
R.C. 2901.22(B) provides that “a person acts knowingly, regardless
of his purpose when he is aware that his conduct will probably cause a
certain result or will be of a certain nature. A person has knowledge
of the circumstances when he is aware that such circumstances probably
exist.”
“Whether a person acts knowingly can only be determined, absent a
defendant’s admission, from all the surrounding facts and circumstances,
including the doing of the act itself.” Thus, “[t]he test for
whether a defendant acted knowingly is a subjective one, but it is decided
on objective criteria.”
State v. McDaniel, 2nd Dist. No.6221, 1998 WL 214604, (citing
State v. Elliott, 104 Ohio App.3d 812, 663 N.E.2d 412(1995)).
A person is presumed to know that a check will be dishonored if the check
was properly refused payment for insufficient funds upon presentment within
thirty days and that it is not satisfied within ten days of notice of
the dishonor. R.C. 2913.11(C).
R.C. 2913.11(C) establishes a rebuttable presumption to assist the state
in meeting its burden of proof with regard to the element of knowledge.
While presentment and notice of dishonor are required in order for the
state to take advantage of the statutory presumption, they are not required
to prove the element of knowledge that the checks would be dishonored
for purposes of the offense of passing bad checks set out in R.C. 2913.11(A).
State v. Bergsmark, 6th Dist. No. L-03-1137, 2004-Ohio-5753, ¶15;
State v. Hines, 12th Dist. No. CA94-09-182, 1995 WL 389570(July 3, 1995). Where the state
chooses not to rely upon the statutory presumption or the presumption
is inapplicable, the knowledge element may be proven by means other than
evidence of presentment and dishonor.
Each PBC case must be independently reviewed under the framework set forth
above. There is no easy PBC case for the State of Ohio if the defense
attorney knows how to navigate the statutes and case law.
Call or text 614-884-1100 or complete a Free Case Evaluation form
