T.P.I. -- CRIM. 11.09

WORTHLESS CHECKS

Any person who [issues] [passes] [stops payment on] a worthless check or similar sight order for the payment of money for the purpose of [obtaining (money) (services) (labor) (credit) (any article of value)] [paying any fine, fee, tax, license or obligation to any governmental entity] is guilty of a crime.

For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:1

[Part A:

(1) that the defendant [issued] [passed] a check or similar sight order for the

payment of money for the purpose of:

(a) obtaining [money] [services] [labor] [credit] [any article of value];

or

(b) paying any fine, fee, tax, license or obligation to any governmental

entity;

and

(2) that the defendant knew at the time that there were not sufficient funds in

or on deposit with the bank or other drawee for the payment in full of the

check or order as well as all other checks or orders outstanding at the

time of issuance;

and

(3) that the defendant acted with fraudulent intent or knowingly.]

The issuer's or passer's fraudulent intent or knowledge or both of insufficient funds may be inferred if you find that:2

[The person had no account with the bank or other drawee at the time the

person issued or passed the check or order;]3

or

[On presentation within thirty days after issuing or passing the check or

order, payment was refused by the bank or other drawee for lack of

funds, insufficient funds or account closed after issuance or passing of

the check or order, and the issuer or passer failed to make good within

ten (10) days after receiving notice of that refusal.]4

[For you to find notice in this case, you must find that the notice was in writing and, if the address is known, sent by certified mail with return receipt requested and addressed to the issuer or passer at the address shown as follows: (1) on the check or order, if given; or (2) if not shown on the check or order, on the records of the bank or other drawee, if available.5 If notice is given in accordance with the above requirement, it may be inferred that the notice was received no later than five days after it was mailed.]6

[Notice shall not be required (in the event the situs of the drawee is not in the state of Tennessee)7 (if the drawer is not a resident of the state of Tennessee or has left the state of Tennessee at the time such check, draft, or order is dishonored)8 (if the drawer of such [check] [draft] or [order] did not have an account with the drawee of such [check] [draft] [other order] at the time the same was issued or dishonored)9.]

or

[Part B:

(1) that the defendant stopped payment on a check or similar sight order for

the payment of money for the purpose of [obtaining (money) (services)

(labor) (credit) (any article of value)] [paying any fine, fee, tax, license or

obligation to any governmental entity];

and

(2) that such [money] [credit] [goods] [services] were as represented at the

time of the issuance of the check or sight order;

and

(3) that the defendant acted with fraudulent intent or knowingly.]10

"Fraud" is defined as the term is used in normal conversation and includes, but is not limited to, deceit, trickery, misrepresentation and subterfuge.11

"Intent" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.12

The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally.13

"Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.14

"Obtain" means:

(A) to bring about a transfer or purported transfer of property or of a

legally recognized interest therein, whether to the defendant or

another;

or

(B) To secure the performance of service.

Obtain includes but is not limited to the taking, carrying away or the sale, conveyance or transfer of title to or interest in or possession of property.15

"Services" include [labor] [skill] [professional service] [transportation] [telephone] [mail] [gas] [electricity] [steam] [water] [cable TV] [other public services] [accommodations in hotels, restaurants or elsewhere] [admissions to exhibitions] [use of vehicles or other movable property].16

[It is an exception to this offense that it was a post-dated check or a check or sight order where the payee or holder knew or had good and sufficient reason to believe the drawer did not have sufficient funds on deposit to his or her credit with the drawee to insure payment. If the defendant proves this exception by a preponderance of the evidence,17 you must find [him] [her] not guilty.]18

"Value" shall be determined by the amount appearing on the face of said check on the date of issue.19

If you find the defendant guilty of this offense beyond a reasonable doubt, you must go further and fix the range of value of the check involved.

The state has the burden of proving this value beyond a reasonable doubt as defined in these instructions.


The jury will fix the value of the check involved along with its verdict by indicating which of the following ranges the value falls within:

1. five hundred dollars ($500) or less;

2. more than five hundred dollars ($500), but less than one thousand dollars

($1,000);

3. one thousand dollars ($1,000) or more, but less than ten thousand dollars

($10,000);

4. ten thousand dollars ($10,000) or more, but less than sixty thousand

dollars ($60,000);

5. sixty thousand dollars ($60,000) or more.20

FOOTNOTES

1. Tenn. Code Ann. 39-14-121.

2. Tenn. Code Ann. 39-14-121(b). The Court should instruct the jury concerning

inferences. T.P.I. -- CRIM. 42.19 (Inferences).

3. Tenn. Code Ann. 39-14-121(b)(1).

4. Tenn. Code Ann. 39-14-121(b)(2).

5. Tenn. Code Ann. 39-14-121(c).

6. Tenn. Code Ann. 39-14-121(d).

7. Tenn. Code Ann. 39-14-121(e)(1).

8. Tenn. Code Ann. 39-14-121(e)(2).

9. Tenn. Code Ann. 39-14-121(e)(3).

10. Tenn. Code Ann. 39-14-121(a)(2).

11. Tenn. Code Ann. 39-11-106(a)(13).

12. Tenn. Code Ann. 39-11-106(a)(18).


13. Tenn. Code Ann. 39-11-301(a)(2).

14. Tenn. Code Ann. 39-11-106(a)(20).

15. Tenn. Code Ann. 39-11-106(a)(24)(A). "Obtain" includes, but is not limited to, conduct heretofore known as larceny, larceny by trick, larceny by conversion,

embezzlement, extortion or obtaining property by false pretenses. Tenn. Code

Ann. 39-11-106(a)(24)(B).

16. Tenn. Code Ann. 39-11-106(a)(35).

17. Tenn. Code Ann. 39-11-202(b)(2). The trial judge should utilize T.P.I. --

CRIM. 42.01 (Preponderance of the Evidence).

18. Tenn. Code Ann. 39-14-121(a)(3).

19. Tenn. Code Ann. 39-14-121(f).

20. Tenn. Code Ann. 39-14-105.

COMMENTS

1. The offense of issuing or passing worthless checks is punishable as theft pursuant to Tenn. Code Ann. 39-14-105. Tenn. Code Ann. 39-14-121(f).

2. The Committee is of the opinion that the language of Tenn. Code Ann. 39-14-121(a)(3) are words "of similar import" as the term is used in Tenn. Code Ann. 39-11-202 (Exceptions).