APPEAL FROM THE LAKE COUNTY COURT, DIVISION II THE HONORABLE PAUL D. STANKO, JUDGE CAUSE NO. 2C-85-4073
Shields, P.j., Hoffman, concurs. Staton, J., Dissents with separate opinion.
Michael Kimberling was convicted of check deception, a class A misdemeanor, pursuant to Ind. Code Ann. § 35-43-5-5(a) (Burns Repl. 1985). He appeals, challenging the sufficiency of the evidence in two respects, one of which mandates the reversal of his conviction and his discharge: Did the State establish notice was sent to Kimberling informing him the check had been dishonored?
Michael Kimberling operated four gas stations and had a purchasing corporation for these stations known as Southlake Marketing Incorporated, d/b/a Southlake Marketing. City Sales Incorporated is a wholesaler of tobacco, candy, and other related items, and sold merchandise to Southlake Marketing through then-salesman Joseph Kaspar. On January 24, 1985, Kimberling issued a check in the amount of $1,971.00 to pay for goods previously delivered by City Sales. That check, number 1134, was drawn on Southlake Marketing's account with Citizens Federal Savings. Before Kimberling issued the check he phoned the bank to inquire about his balance. He was told his balance at that time was $4,572.97. However, when check number 1134 was presented to Citizens Federal Savings on January 30, 1985, it was returned to City Sales marked "UNCOLL."
Kaspar was assigned the task of collecting on check number 1134 and two other Southlake Marketing checks that had been returned to City Sales. Although he had some difficulty contacting Kimberling, he eventually did so and arranged a payment schedule. Kimberling made good on the other two checks, but 1134 was not paid. Finally, Kaspar advised Kimberling orally if he failed to satisfy his account with City Sales it would seek criminal prosecution.
After Kaspar had given Kimberling this oral advisement, Joseph Sobek, credit manager for City Sales, sent a letter to Southlake Marketing, care of Michael Kimberlyn [sic]. The letter was dated March 19, 1985, and stated:
"Unless full payment of $5633.12 [sic] is received by March 25, 1985, your account will be turned over to the prosecuting attorney for legal action."
Record at 98. Kimberling was subsequently convicted of check deception in connection with check number 1134.
Kimberling argues the letter he was sent, quoted in full above, does not fulfill the required statutory notice. He points out the letter does not refer to the check number, to the fact it was dishonored, or to the amount of the check. The State, while conceding notice is an element of the offense which it must prove, argues the letter satisfied the requirement inasmuch as Kimberling had ample actual notice of the check's dishonor.
The check deception statute provides at section (e):
"(e) It is a defense under subsection (a) if ...