Heard: March 9, 2017.
received and sworn to in the Lawrence Division of the
District Court Department on January 21, 2014.
case was tried before Michael A. Uhlarik, J. The Supreme
Judicial Court on its own initiative transferred the case
from the Appeals Court.
A. Mallard, Assistant District Attorney (Lindsay M. Nasson,
Assistant District Attorney, also present) for the
K. Kenyon, Jr., for the defendant.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd,
case before us challenges the constitutionality of a jury
instruction for the crime of drawing or uttering a fraudulent
check. The challenged instruction informed the jury that they
could infer that the defendant had both (1) knowledge of
insufficient funds and (2) fraudulent intent if they found
that the defendant "failed to make good on th[e] check
within two days after she was notified that the bank had
refused payment because of insufficient funds." The
instruction stems from G. L. c. 266, § 37, which
designates the failure to make the required payment on the
bad check within two days of notice as "prima facie
evidence" of the defendant's intent and knowledge.
We conclude that the statute's designation of prima facie
evidence and the corresponding instruction are
constitutionally infirm because a defendant's failure to
pay a check within two days of being notified of its dishonor
is, without more, insufficient to warrant a jury in finding
the essential elements of the crime beyond a reasonable
doubt. Nevertheless, we conclude that the error was harmless
beyond a reasonable doubt in this case, and therefore we
affirm the defendant's convictions.
jury could have found the following facts. Between July 26
and 28, 2013, the defendant deposited four checks, totaling
$15, 000, into certain bank accounts she held at TD Bank via
automated teller machines (ATMs). The funds were credited to
the respective accounts electronically on the day of the
transaction, before the checks were finally negotiated. Each
check was drawn from a single Citizens Bank account in the
defendant's name that had been closed for years. All four
checks eventually bounced and were returned to TD Bank by
July 31, 2013.
the time she deposited the checks and the negotiation of the
checks, the defendant transferred funds between her accounts
at TD Bank, in the manner of a "check-kiting"
scheme. After transferring the funds, but before
the checks had been returned, the defendant made a number of
expenditures, including nearly $3, 000 on Walt Disney World
and Sea World tickets, nearly $600 on her cellular telephone
bill, over $700 on clothing and shoes, and a $2, 000 cash
withdrawal. The defendant ultimately overdrew her accounts at
TD Bank by roughly $12, 000.
early August of 2013, a representative of TD Bank contacted
the defendant by telephone and informed her that the checks
had been returned. The defendant responded that she was out
of town, but would remedy the situation when she returned.
The defendant never did so, however, and testified at trial
that she "forgot" and was overwhelmed by her own,
and her mother's, health problems. By August 21, 2013, no
repayment had been made and TD Bank sent a demand letter
informing the defendant that she owed TD Bank $11, 664.20.
Within a week, the defendant still had not made any deposit.
When TD Bank attempted to follow up with the defendant, it
discovered that the defendant's cellular telephone number
was no longer in service.
trial, the defendant testified that she believed that her
account at Citizens Bank was still open and that her tax
refund had been deposited into that account. There was
evidence, however, that the Citizens Bank account had been
closed for years, and that she already had spent much of her
$13, 000 tax refund, which had been previously deposited into
one of her accounts at TD Bank, well in advance of the four
jury convicted the defendant on four counts of larceny by
uttering a false check. The defendant appealed, and we