Preview:

STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v MICHAEL JAMES SHAW, Defendant-Appellant.

UNPUBLISHED April 27, 2006

No. 261097 Cheboygan Circuit Court LC No. 04-003019-FH

Before: White, P.J., and Fitzgerald and Talbot, JJ. PER CURIAM. Following a jury trial, defendant was convicted of check insufficiency of $500 or more, MCL 750.131(3)(c), and was sentenced to probation for six months. He appeals as of right. We affirm. Defendant challenges the trial court's jury instruction that allowed the jury to draw a permissive presumption concerning intent to defraud, an essential element of the charged offense, People v Cimini, 33 Mich App 461, 464; 190 NW2d 323 (1971). MCL 750.132 addresses proof of the intent to defraud: As against the maker or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, when presented in the usual course of business, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in or credit with such bank or other depository, provided such maker or drawer shall not have paid the drawee thereof the amount due thereon, together with all costs and protest fees, within 5 days after receiving notice that such check, draft or order has not been paid by the drawee. [Emphasis added.] Notice is not defined in the statute. Over defendant's objection, the trial court instructed the jury as follows: If you determine beyond a reasonable doubt that the defendant wrote or caused the check to be written, that he signed it, that the check was presented in the usual course of business, and that the bank refused to cash it, that the defendant received notice of nonpayment, and that the defendant did not pay the amount due -1-


on the check and all costs and fees after -- within five days after he received notice of nonpayment. Then these facts, if not explained, are circumstances from which you may infer that the defendant intended to

Download PEOPLE OF MI V MICHAEL JAMES SHAW.pdf

Michigan Law