Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

PASSING BAD CHECKS (ME147)

R.C. 2913.11 -- Passing bad checks.

State v. O‘Bryan, 181 Ohio App. 3d 247, 2009-Ohio-753 – Within R.C. 2913.11 Division (A) is a definitional section and (B) sets forth the offense. Aggregate value language in (E) applies to all offenses. Reference in (E) to (A) is a mistake. Defendant was properly convicted of a felony based on aggregate value of checks written. Restitution was properly ordered for checks passed in other counties as a part of the same course of conduct. Venue is proper.

State v. Edwards (2001), 141 Ohio App. 3d 388, 395 -- "When the payee knows that a check is not collectible at the time it is tendered, there can be no crime of passing a bad check." Checks were issued to payee who had knowledge of uncertain business conditions and was aware funds to cover the amount of the checks were yet to be received from another transaction. Thus there was insufficient evidence of an intent to defraud.

State v. Boyd, Montgomery App. No. 19518, 2003-Ohio-2406 -- From conversations with the defendant recipient had reason to believe there were problems with a check before it was presented to be cashed. Though the defendant could have been more specific as to the problems with the check, the state failed to prove intent to defraud element of passing bad checks. Also see State v. Creachbaum (1970), 24 Ohio App. 2d 31, 36-37, which according to Boyd, directs the focus on the understanding of the payee rather than the steps taken by the defendant to inform the payee of the status of the check.

State v. Suber, 154 Ohio App. 3d 681, 2003-Ohio-5210 -- Defense to passing bad check charges was based on an opportunistic distortion of federal banking law allowing depositors access to funds before checks cleared. Convictions affirmed, except for one count where the check was not dishonored, but merely added to the overdraft.

State v. Primous, 164 Ohio App. 3d 26, 2005-Ohio-5586 -- Criminal simulation, as proscribed by R.C. 2913.32, relates to objects, not documents. It does not encompass passing bad checks.

State v. Adams (1982), 3 Ohio App. 3d 50 -- Inclusion of instructions on the presumption set forth in R.C. 2913.11(B) is proper even though the defendant has introduced evidence rebutting the presumption. However, the instructions must also address the nature and effect of a rebuttable presumption in a criminal case so that the charge does not have the effect of shifting a burden of proof to the defendant. See Sandstrom v. Montana (1979), 442 U.S. 510.

State v. Kuder (1994), 94 Ohio App. 3d 222 -- The statutory presumption that the issuer of a check knows it will be dishonored if the obligation is not discharged by payment or satisfaction within ten days of receiving notice of dishonor does not apply to checks drawn on a closed account. It is error to include an instruction on the presumption in such cases, even though the defendant may have offered evidence that an effort was made to redeem the check.

State v. Harris (1982), 7 Ohio Misc. 2d 43 -- Headnote: "There can be no intent to defraud, for purposes of establishing an essential element of the offense covered by R.C. 2913.11, passing bad checks, where the payee knew at the time the check was tendered that it was not then collectable. Also see State v. Vice (1946), 33 Ohio Ops 544, 70 N.E. 2d 125.

State v. Hedrick (1994), 92 Ohio App. 3d 618 -- Payment of past due rent with a worthless check may constitute passing bad checks. Benefit received may have been avoidance of harassment for a time. Compare State v. Rudd (1988), 55 Ohio Misc. 2d 1.

State v. Cote (1991), 62 Ohio Misc. 2d 202 -- Employer did not commit passing bad checks by issuing paycheck which could not be cashed after funds in corporate account had been seized to collect on a judgment.

State v. Durbin (1992), 82 Ohio App. 3d 156 -- (1) Use of a check to pay an antecedent or preexisting debt may be a basis for a passing bad checks charge, however, conviction must be reversed if there is no proof of a purpose to defraud. Checks sent to pay lump sum alimony could not be cashed, however, the debt remained and the defendant obtained no benefit. (2) Notice of dishonor means actual notice, and not merely proof of receipt by an employee.

Cincinnati Bar Association v. Cohen (1999), 86 Ohio St. 3d 100 -- Public reprimand to attorney who threatened to file passing bad checks charge against client whose checked bounced, and whose account remained unpaid. Held to violate DR7-105 (A lawyer shall not threaten to present criminal charges solely to gain advantage in a civil matter.)

Portis v. TransOhio Savings Bank (1988), 46 Ohio App. 3d 69 -- In the context of a civil suit for malicious prosecution, court finds probable cause existed for filing of charge, notwithstanding arrangement with bank to pay off amount owed in installments.

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