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.