Prima Facie Evidence of Crime of Issuing a Worthless Check

Subject:

Requested By: Ed McClearen Assistant District Attorney Tenth Judicial District

Question: Does G.S. 14-107.1 provide the exclusive method of proving a violation of G.S. 14-107?

Conclusion: No.

In order for the State to make out a prima facie case of a violation of G.S. 14-107 the State must prove: (1) that the defendant drew and uttered a check; (2) that the defendant did not at the time the check was drawn have sufficient funds on deposit or credit with the banking institution upon which the check was drawn to pay the check upon presentment; (3) that the defendant knew that the check was drawn on insufficient funds. G.S. 14-107.1 has not changed the substantive offense of writing a worthless check. It only provides an alternate method of permitting the State to make out a prima facie case of a violation of G.S. 14-107. Proof of a violation of G.S. 14-107 before the enactment of G.S. 14-107.1 is still sufficient to make out a prima facie case.

"A prima facie case does nothing more than carry the case to the jury for its determination. Owens v. Kelly, 240 N.C. 770, 84 S.E. 2d 163. Likewise, prima facie evidence is not more than sufficient evidence to establish the vital facts without further proof, if it satisfies the jury. In a criminal case the jury is at full liberty to acquit the defendant if it is not satisfied from all the evidence — including prima facie evidence — that defendant’s guilt has been proven beyond a reasonable doubt. In short, the inference or conclusion which may be drawn from certain facts recited in the statute may justify, but not compel a verdict adverse to the defendant. Ordinarily, the establishment of prima facie evidence does not shift the burden of the issue from the State to the defendant. State v. Bryant, 245 N.C. 645, 97 S.E. 2d 264; State v. Wilkerson, 164 N.C. 431, 79 S.E. 888." State v. Riera, 276 N.C. 361, 367 (1970))

G.S. 14-107 provides that certain evidence is prima facie proof of the two elements of the crime of writing a worthless check. In order to make out a prima facie case of the first element of the crime of writing a worthless check, i.e., that the defendant drew and uttered a check, the State may offer proof of the following: (1) the check was delivered in a face-to-face transaction with a person authorized to take checks; (2) the name and address of the check passer are on the check;

(3)

the check taker identifies the check passer at the time of acceptance by a North Carolina driver’s license or other serially numbered card containing the person’s photo and mailing address; (4) the license or identification card number of the check passer appears on the check;

(5)

after dishonor, the acceptor sends the check passer a letter by certified mail setting forth the circumstances of dishonor and requesting that any error in connection with the transaction be disposed of in ten days; and (6) the acceptor files an affidavit with a judicial official before issuance of the first criminal process declaring that the other conditions have been satisfied and that 15 days have transpired since he mailed the letter to the check passer and any error has not been remedied. The acceptor must attach to the affidavit a copy of the letter sent to the check passer, a receipt from the U.S. Postal Service certifying the mailing of the letter, and the check or a copy of the check, including the marking by the bank indicating why it was returned.

In order to make out a prima facie case of the second element of the crime of writing a worthless check, i.e., that the defendant did not at the time the check was drawn have sufficient funds on deposit or credit with the banking institution upon which the check was drawn to pay the check upon presentment, the State may offer proof that the bank that dishonored the check returned it in the regular course of business indicating the reasons for dishonor and the acceptor has mailed the certified letter and has filed the affidavit described in preceding paragraph, the check then may be introduced as prima facie evidence of dishonor and as evidence that the defendant had no credit with the bank.

It is the opinion of this Office that G.S. 14-107.1 was enacted by the legislature in order to permit the State to make out a prima facie case of a violation of G.S. 14-107 with fewer witnesses. Rather than sending each clerk who accepted a check, the accepting employer can send one employee to testify in all its cases, and testimony from a bank official about the dishonor of the check is eliminated.

Rufus L. Edmisten Attorney General

Lester V. Chalmers, Jr. Special Deputy Attorney General