State v. Alams
State v. Alams
Opinion of the Court
Payment of a past due debt by way of a worthless check constitutes the unlawful issuance of a bank check even though the issuer seeks nothing more than a brief reprieve from the recipient’s collection efforts. Viewing the evidence in light most favorable to the State, a jury could have reasonably concluded that Alams sought such a reprieve. Accordingly, we affirm.
FACTS
This case arises from a “sale lease-back” agreement between Humphrey Alams and Richard Padovan, the owner of Coho Equipment Leasing Company. In September 1994, Padovan agreed to buy Alams’ chiropractic equipment for $25,000, and Alams agreed to lease back the equipment from Coho Equipment Leasing Company for $820.91 a month.
Alams made the first payment by check, which was returned for insufficient funds. Alams then gave Padovan a cashier’s check, but due to a computational error, the amount paid was $209 short of the amount actually due. In December, Alams wrote Padovan a check for $209 on a closed bank account.
By January, Alams’ debt totaled $1,938.02, which Padovan repeatedly attempted to collect. On January 20, 1995, Alams presented Padovan with a check for $1,136, but again the check was drawn on a closed account. After several more attempts to collect payment, Padovan reported the situation to the Everett Police Department. Alams was charged under RCW 9A.56.060 with one count of unlawful issuance of a bank check in an amount exceeding $250.
In its ruling on Alams’ motion in limine, the court held that the State could not present evidence that Alams had fraudulently entered into the lease agreement nor could it present evidence regarding whether Alams ever paid off the debt. The court, however, denied Alams’ motion to exclude testimony that Alams defaulted on a small business loan during the time period.
Alams was the sole defense witness. He testified that he had several accounts with the bank and that he shifted money between the accounts during the time frame in question. He stated that he did not recall receiving overdraft or account closure notices. He further stated that he believed that he had enough money to cover the check, but he was not sure, and he did not know exactly how much money he had in his various accounts.
During closing argument, the prosecutor stated:
The final element which I have to prove in order to prove him guilty is that he acted with intent to defraud Mr. Padovan when he wrote that check. You can infer his intent from what was going on around him. You can infer the intent from what was happening with these accounts. You have to do that, because Mr. Alams never spoke to anybody, prior to today, about what was going on here. He never talked to the police about this case—
The trial court sustained defense objections to the statement and issued a curative instruction. The prosecutor continued:
I apologize. Except for what he said on the stand, he’s not told us what was really going on in his head. We’re not psychic. We can’t see inside his head back in January 20th of 1995 to know what he intended when he wrote this check. So you have to infer this from what occurred back then and what was going on.
DISCUSSION
I. Sufficiency of the Evidence Supporting Intent to Defraud Element
The offense of unlawful issuance of a bank check includes as an element of the offense the “intent to defraud.”
Alams argues that the intent to defraud element is not met because “the recipient loses nothing, since he or she is still entitled to the money and the identical remedies remain available for nonpayment.”
Alams’ only attempt to distinguish this case is an argu
II. Admission of Evidence of Alams’ Previous Loan Default
Evidence of a prior bad act is admissible under ER 404(b) to prove, among other things, the actor’s motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Alams contends that the court’s admission of evidence of his small business loan default was an abuse of discretion because the evidence was not admissible to show intent and had little or no probative value. Even assuming the court erred in admitting the evidence, however, the error was harmless.
Evidentiary errors under ER 404(b) are nonconstitutional in nature.
Alams admits that “the evidence was unnecessary to prove the state’s theory because a great deal of other evidence of his tenuous financial situation was introduced by
III. Denial of a Mistrial for Violation of an Order in Limine Based on ER 404(b)
In limine, the trial court excluded testimony establishing that Alams had fraudulently entered into the lease agreement, and testimony as to whether Alams ever paid off his debt to Padovan. Alams contends that Padovan’s testimony violated the first order, and that one of the prosecutor’s questions violated the second. He asserts that the trial court abused its discretion by rejecting his motion for a mistrial. We agree with the court’s conclusion that even assuming error there is not a substantial likelihood that the comments affected the verdict.
Padovan testified, “I got a bill of sale from [Alams] for the equipment. And then we disbursed funds on that bill of sale, which was no good.” The defense objected to the statement, and at sidebar the court sustained the objection. Alams did not seek, and the court did not issue, a curative instruction. On redirect, following a question by Alams’ attorney concerning Alams’ September payment by money order, the prosecutor asked Padovan, “Did Mr. Alams ever give you money orders to cover any of the other checks which were returned account closed?” The defense objected before Padovan could respond, and the court again sustained the objection.
The court found that the statement concerning the bill of sale could lead to a number of different conclusions, rather than a conclusion that Alams had fraudulently sold the equipment to Padovan. The court also found that the prosecutor’s question regarding payment by money order
Assuming error, the burden is on Alams to show there is a substantial likelihood that the comments affected the verdict. And he fails to do so. We find no abuse of discretion.
IV Prosecutor’s Closing Argument
Alams has two complaints concerning the prosecutor’s closing argument. The first is that the prosecutor violated his Fifth Amendment rights when the prosecutor stated that Alams had never talked to the police about the case. Alams objected to the statement, and the court issued a curative instruction. The second is that the prosecutor shifted the burden of proof by stating that Alams had not told the jury what was really going on in his head. Alams failed to object to this statement, but he argues that the comment was flagrant and ill-intentioned. Even assuming error, the statements were harmless beyond a reasonable doubt.
The State agrees that the comment that Alams had never talked to the police was improper, but argues that the error was harmless. “ ‘A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error.’ ”
As for the burden-shifting issue, “failure to object to an improper remark constitutes a waiver of error unless the remark is so flagrant and ill intentioned that it causes
We find the evidence sufficient to support the verdict. And upon review of the alleged errors, we hold that none, individually or collectively, denied Alams a fair trial. Accordingly, we affirm.
Webster and Baker, JJ., concur.
Review denied at 137 Wn.2d 1037 (1999).
RCW 9A.56.060.
Br. of Appellant, at 16.
State v. Bradley, 190 Wash. 538, 69 P.2d 819 (1937).
State v. Broum, 113 Wn.2d 520, 554, 782 P.2d 1013, 787 P.2d 906, 80 A.L.R.4th 989 (1989).
Id. (citations omitted).
Br. of Appellant, at 29.
State v. Ng, 110 Wn.2d 32, 37, 750 P.2d 632 (1988) (citation omitted).
State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.