The Hamburglar: Supreme Court Of Tennessee Deems Worthless Check Convictions Admissible To Impeach Alleged McDonald's Thief

Pursuant to Section 39-14-121(a)(1), the offense of passing worthless checks is committed when a person either  

with fraudulent intent or knowingly...passes a check...knowing at the time there are not sufficient funds...on deposit...for the payment in full of the check...or...[s]tops payment on a check...provided, that the...goods or services were as represented at the time of the issuance of the check.... 

Meanwhile, Tennessee Rule of Evidence 609(a)(2) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime may be admitted if the following procedures and conditions are satisfied:....

(2) The crime must be punishable by death or imprisonment in excess of one year under the law under which the witness was convicted or, if not so punishable, the crime must have involved dishonesty or false statement.

So, is the crime of passing a worthless check under Section 39-14-121(a)(1) a crime that must have involved dishonesty or false statement? According to the recent opinion of the Supreme Court of Tennessee in State v. Russell, 2012 WL 4753429 (Tenn. 2012).

In Russell, 

Wanda F. Russell was an assistant manager at a McDonald's restaurant in Smyrna, Tennessee. One of the assistant manager's responsibilities was to tally the amount of cash received during her shift and deposit the cash in the bank. Prior to depositing the cash, the assistant manager prepared a deposit slip reflecting the tally, recorded the amount of the bank deposit in a deposit log maintained at the restaurant, and placed both the deposit and the deposit slip into a deposit bag.

Based upon four separate instances in which Russell allegedly either did not make a deposit or deposited less than the amount that was purported to be deposited, Russell was charged with four counts of theft.

After she was convicted, Russell appealed, claiming, inter alia, that the trial court erred by deeming her prior convictions under Section 39-14-121(a)(1) for passing worthless checks admissible to impeach her pursuant to Tennessee Rule of Evidence 609(a)(2). The Supreme Court of Tennessee disagreed, concluding that

There are a number of ways to commit the offense of passing worthless checks. A person who commits the offense of passing worthless checks with "fraudulent intent" satisfies the "dishonesty" requirement of Tennessee Rule of Evidence 609(a)(2). Similarly, a person who passes a check knowing that there are insufficient funds to pay the check has made a misrepresentation to the payee and therefore meets the requirement of "dishonesty or false statement."...Finally, a person who cancels a check with knowledge that the goods or services received were as represented at the time the check was issued has knowingly failed to pay for those goods or services. Knowingly canceling payment for goods or services received when those goods or services were as represented is dishonest.

Ms. Russell argues that a conviction for passing worthless checks could arise from an honest mistake. We recognize that an individual may issue a check in good faith under the mistaken belief that the funds on deposit are sufficient to cover the amount of the check. Mistakenly issuing a check when the funds on deposit are insufficient, however, does not violate Tennessee Code Annotated section 39–14–121. Section 39–14–121(a)(1)(A) requires an individual to "know[] at the time there are not sufficient funds on deposit...for the payment in full of the check...." (emphasis added). Contrary to Ms. Russell's assertion, the statute setting forth the crime of passing worthless checks does not criminalize an honest mistake. A prior conviction for passing worthless checks pursuant to section 39–14–121 therefore is probative of a witness's honesty.

-CM