Albertson v. State

JAMES R. EYLER, J. Appellant, Kirk Albertson, was charged in the Circuit Court for Talbot County, Maryland, with theft scheme, multiple counts of passing bad checks which were dishonored for insufficient funds and stop payment orders, and multiple counts of theft over $500. After a jury trial, appellant was convicted of four counts of passing bad checks in violation of Section 8—103(a) of the Criminal Law Article, and three counts of passing bad checks in violation of Section 8-103(b). Appellant was sentenced to seven concurrent terms of eighteen months, with twelve months suspended on each count, for an ⁵³⁶ aggregate unsuspended sentence of six months. He was also ordered to pay restitution and was placed on supervised probation for five years.

Appellant timely appealed and, rephrased and reordered, presents the following questions for our review: 1. Did the trial court err in declining to give a jury instruction that explained the difference between a civil cause of action and a criminal charge for passing a bad check based on insufficient funds? 2. Was the evidence insufficient to sustain appellant’s convictions for violations of Sections 8-103(a) and 8-103(b) of the Criminal Law Article? For the following reasons, we agree that there was error in instructing the jury as to the four counts under Section 8-103(a).

We also agree that the evidence was insufficient to sustain the convictions under those counts. The judgments are otherwise affirmed. BACKGROUND State’s Case-In-Chief This case concerns the business dealings between the victim, Ed Scherl, a licensed auto-broker, and Rokabil Motors LLC (“Rokabil”), a retail used car dealership owned by appellant and William Haddaway. 1 Scherl’s role was to provide Rokabil with used cars that Rokabil would then place on its lot for sale to the general public, including to persons with poor or no credit. When a car sale was made, Scherl would deliver title to said vehicle to Rokabil, in exchange for a check in the amount of the sale.

Scherl testified that, when he received checks in exchange for title to the cars, he would collect them and deposit them between one and ten days after the transfer. After certain checks started bouncing, Scherl went directly to Rokabil’s ⁵³⁷ bank, Talbot Bank, where he learned that the checks were not “any good.” Scherl testified that appellant or Haddaway normally signed the checks, and that Carol Northcut, an employee of Rokabil, would sometimes sign paperwork associated with the transfer of the vehicles. A bank representative from Talbot Bank, Wanda Hutchinson, testified that appellant and Haddaway had signature authority for the Rokabil bank account. Referring to certificates of dishonor for the pertinent checks, Hutchinson explained that a check is “uttered” on the day it is written, and is “presented” when it comes to the bank for payment.

Hutchinson then addressed the first four checks at issue in this appeal, testifying to the check number, the amount, the day the check was uttered (issued), the amount of funds available on that day, the day the check was presented for payment, and the amount of funds available on the date of presentment. According to Scherl, the checks were signed and delivered to him by appellant in appellant’s office. 2 Looking to both Hutchinson’s and Scherl’s testimony at trial, the following table details the relevant figures for these four checks, including the vehicles associated with these checks: [[Image here]] Thereafter, all four of the checks were presented on the same day, November 3, 2009, notably more than thirty days after they were uttered. On that day, these four checks were ⁵³⁸ all dishonored for insufficient funds (“ISF”). The Rokabil account was overdrawn by $159.09 at opening, the high balance for the day; at closing, the account was ultimately overdrawn by $579.08.

Scherl testified at trial that he received neither the money due for these four vehicles, nor the return of the vehicles themselves. A representative from Queenstown Bank of Maryland, Heather Jarrell, testified to the remaining three checks at issue. Jarrell testified that a new bank account in the name of William Haddaway doing business as RMC Holdings was opened on October 5, 2009, with a $75.00 deposit. By the end of October, the balance had increased to $1,305.00.

Pertinent to our discussion, Jarrell testified that three checks, all payable to Scherl, were ultimately dishonored and not paid due to the placement of stop payment orders. (“SPO”). Scherl testified at trial that these checks were signed by appellant at Rokabil Motors. Scherl also explained that these checks were purportedly to replace three checks-from the Talbot Bank account that were given by Rokabil in exchange for the transfer of title of three vehicles different from those listed above: [[Image here]] A stop payment was ordered on these three Queenstown Bank checks on October 19, 2009.

There is no indication in the record who ordered the stop payment. The checks were then dishonored when presented on October 23, 2009. Scherl testified that he did not receive payment or the return of these three vehicles. Initial Argument on Motion for Judgment of Acquittal At the end of the State’s case-in-chief, defense counsel generally argued that there was insufficient evidence of identification of who was responsible for drafting the bad checks in ⁵³⁹ this case.

The court ruled that there was sufficient evidence of appellant’s involvement in the business and denied the motion. The court then went through the charged counts individually, but we address only the counts for which the jury returned convictions. As to Count 10, concerning the Mazda, after the State argued that there was testimony that appellant signed the check, the court denied the motion. On Count 12, the Pontiac, defense counsel conceded that appellant signed the check, and the court denied the motion.

Defense counsel made no specific argument on either Count 14, the Saturn, or Count 16, the Nissan, and the court denied the motions. As for the replacement checks for the three remaining vehicles, on Count 18, the Honda, and on Count 22, the Ford, defense counsel made no additional argument, and the court denied the motions. As for Count 24, the Dodge, defense counsel simply noted that the court had granted the motion for the count charging uttering a bad check initially from the Talbot account, and the court then denied the motion for the count concerning issuance of the replacement check for this vehicle. No further argument was made on the motions at the end of the State’s case-in-chief.

Defense Case Pertinent to our discussion, Carol Northcut was an employee of Rokabil and knew that Scherl was a wholesaler that provided cars for Rokabil to sell. Northcut’s understanding of the arrangement between Rokabil and Scherl was that “[Rokabil] Motors would give Ed Scherl a check for whatever car that we had sold and Ed was supposed to hold the check until he was given an okay by either Kirk [Albertson] or Bill [Haddaway].” Sometimes Scherl would call and ask Northcut to ask appellant whether he could cash certain checks. North-cut denied that she ever signed checks to Scherl, and testified that appellant kept the books and the checkbook register. Northcut further explained that Rokabil used a bank called Credit Acceptance Corporation (“CAC”) to help customers finance the purchase of vehicles provided by Scherl.

When a ⁵⁴⁰ customer obtained a loan for a vehicle, CAC paid Rokabil a certain percentage of the loan amount. Northcut then testified that, after a vehicle was sold, Scherl would sign over the title to an employee of Rokabil. On cross-examination, Northcut provided further details, testifying that Scherl was the only person providing cars for resale to Rokabil. Scherl would pass title to Rokabil, and then Rokabil would retitle the car to the individual purchaser.

With respect to the manner in which Scherl was to be paid, Northcut then testified that she “knew it was fact that Mr. Scherl was supposed to hold the checks.” Northcut confirmed that appellant signed the seven checks at issue in this appeal. On redirect examination, Northcut maintained that Scherl was supposed to hold the checks, explaining that “on some of the cars it was because we were waiting for funding from the bank.” Northcut testified that when funding came through, she would inform appellant. She also indicated that there was “no set system for when we gave [Scherl] a check,” and that appellant and Haddaway were the only ones who could sign a check to Scherl. Northcut concluded by testifying that Scherl was given a check “about 50 to 60 percent of the time” on the same day he delivered title.

Appellant testified on his own behalf and explained the arrangement between Rokabil and Scherl as follows: We did discuss a business deal. Ed Scherl was going to provide us with as many cars as we needed, which I believe he said the number would be 40, which would keep our lot full all the time. When we sold a car he would give us a title and we would pay for the car. Bill and I both explained to Ed Scherl that our dealership was not in a position to pay cash, as would be known as cash at the time we sold the car.

We would have to wait for a few other actions to transpire before we could pay the car off. Ed Scherl said that that wouldn’t be a problem. Just give me a check and I will hold it and when you had enough money to make that check good I would go to the bank and deposit that check. I reiterated with Ed Scherl that I felt a little ⁵⁴¹ uncomfortable with writing a check that he would hold.

Ed Scherl promised us and assured us that he would not present the check to the bank unless we approved that check to be presented to the bank. He would hold it until we had the money to cover the check. Appellant explained that the reason Rokabil did not have the money to pay for the car immediately was due to the fact that many of their customers had poor credit. Because of the need for these customers to obtain financing, Rokabil would often not be paid by CAC until 15 to 30 days after the sale.

Rokabil received hold checks and promissory notes from its customers as down payment for the sale of the vehicles. Appellant testified that Scherl was aware of this relationship with CAC and knew that it sometimes took between several weeks and a month before Rokabil would receive money for the sale of the vehicles. Appellant further testified that Scherl had been in the car business for over thirty years and was very familiar with the process of collecting money from CAC. Scherl was the only wholesaler that Rokabil worked with.

Appellant agreed that he would sign checks to Scherl on occasion. Appellant further explained that, after a sale, it could take anywhere between three to five days and 45 to 90 days before Rokabil received payment from the customer or CAC. At some point in October 2009, this delay began to bother Scherl. Appellant testified that some of the sales were problematic and that Rokabil could not make those checks to Scherl good.

After explaining this problem to Scherl, Scherl decided to have a tow truck come to Rokabil’s lot in order to remove his vehicles from the premises. On cross-examination, appellant agreed that he had signing authority for the checks to Scherl, and that he, appellant, had access to the checking account balance. He also confirmed that he signed all the checks at issue in this case, except for check number 2568, the one for $2,675.00 for a Mazda Protege. As for the hold check agreement, appellant asserted that Scherl had “a very disorganized way of doing things.” Appel ⁵⁴² lant claimed that he would tell Scherl certain checks could be cashed, and that Scherl, at times, would cash different checks.

Appellant also explained the process of how customers obtained financing from CAC. Starting with the premise that “[ejveryone is approved,” Rokabil would forward all the pertinent information to CAC regarding a car sale, and that CAC would then decide how much money it would advance to Rokabil for said vehicle. CAC would hold the balance on the sale until it received payment from the customer on the loan. After a certain period, CAC would pay Rokabil any balance due.

Appellant clarified that Scherl would bring cars to the lot and tell appellant how much he expected to be paid for that car. Rokabil would then try to sell the car to a customer for a profit. Appellant explained that, after the customer put down a down payment and drove the car off the lot, the financing company, CAC, occasionally would not pay the entire amount due for the car up front. Rokabil would be paid eventually as the customer paid down the loan.

Appellant agreed, however, that CAC paid Rokabil the full cost of the vehicle most of the time. Appellant maintained that the agreement between Rokabil and Scherl was that Scherl would have to wait a period of time to be paid after he delivered title for the cars, although he confirmed that they did not repeat the terms of that agreement on each transfer. Upon further cross-examination, appellant testified about the nature of the agreement as follows: Q. When you wrote and issued those checks and gave them to Mr. Scherl did you know there wasn’t enough money in the bank to cover them? A. No, sir.

Q. You didn’t know? A. That wasn’t part of the deal. Q. Well ... A. We agreed that these checks would not have been cashed. ⁵⁴³ Q. Because there wasn’t enough money in the bank to cover them?

A. No. That wasn’t our agreement. Q. But listen to the actual question. When you wrote the check ... A. Well I understand what you’re trying to get me to say but I can’t ...

BY THE COURT: Q. Well, sir, sir, wait a minute. Just listen to his question. BY [PROSECUTOR]: Q. When you wrote the check was there [sic], I understand that you wanted him to cash it later, but was there enough money in the bank when you wrote the check to cover the check? A. I don’t know.

Q. You don’t know? A. Because I didn’t look at the bank account because those checks weren’t supposed to be cashed on that day. Q. Was there ever enough money in the bank to cover those checks? A. Yes.

Q. When? A. If some weren’t cashed for 30 days there was a fluctuation at time where our checking account was up and down. Q. Were you out of business by then? A. No, we didn’t go out of business until Ed took all the cars off the lot.

Q. When was that? A. I believe that was October 24th or October 25th. Appellant did not know if there was enough money in the Talbot bank account to cover the checks written on September 28, 2009. He also admitted that the high balance in the bank during October was $3,263.00.

With respect to the replace ⁵⁴⁴ ment checks written on the Queenstown Bank, replacing checks for three different vehicles, appellant agreed that his partner, Haddaway, opened that account with a $75.00 deposit. Appellant confirmed that he never deposited enough money in the Queenstown Bank to cover the three replacement checks. While admitting he wrote the three checks at issue, appellant claimed he did not order stop payment on those checks. Appellant agreed that Scherl was never paid on the seven cars, and that Rokabil did not return the cars in question.

Apparently, the Motor Vehicle Administration (“MVA”) eventually required Scherl to pass title to the disputed cars to the owners. Appellant testified that was between the MVA and Scherl. Appellant also agreed that, after Rokabil went out of business, he never paid Scherl any money due on the seven checks. On redirect examination, appellant testified that it was not his “intent to cheat Ed out of any money, none whatsoever.

As a matter of fact Ed was our sole source of being in business.” While he did not always check the bank account balance before signing a check, appellant maintained that the agreement with Scherl called for Scherl to “not cash those checks for a period of time.” Further, appellant testified that “[t]his whole thing was Ed’s idea. It wasn’t our idea to write checks and then to hold them.” And, “Ed Scherl came up with the idea that if you can’t afford to pay for the cars when I give you the titles I’ll go ahead and take the hold check.” On recross, appellant admitted that Rokabil had bills due to entities in addition to Scherl. After the prosecutor asked whether there might not be enough money available if other creditors cashed their checks before Scherl on any given day, appellant replied that he was “unaware of that.” State’s Rebuttal The State called Scherl in rebuttal and asked him about the purported hold-check agreement. Scherl testified as follows: A. There were a couple of occasions where they had asked to hold the check up because of funding.

Some of it, they were all different. Some were cash deals, the checks ⁵⁴⁵ were good right away. There were some deals that were done on local banks, they actually walked the contracts through and got the check from the local banks. So they were fairly quick.

And then there were some that went through other lenders that took a week or 10 days to be funded and they would ask for time on those checks. Q. And did you give them that time? A. I did. Q. Now with regard to the checks that are involved today with Mr. Albertson do you recall whether any of those you were asked to wait or not?

A. I can’t recall honestly. Scherl also testified that he did not believe that any of the seven cars involved in this case were ones that became a matter of dispute with the MVA. He agreed, on cross-examination, that he was paid for the majority of the vehicles he delivered that were sold by Rokabil. Defense Surrebuttal Appellant testified that he never delivered checks to Scherl that were meant to be cashed immediately.

Appellant also testified: The agreement up front was he would hold the checks, we didn’t have to ask him to hold a check it was just the way it was right off the bat. He would hold the check until it was time for it to be cashed. We didn’t ask, that was his plan. Appellant disputed Seherl’s account regarding the seven vehicles in this case, indicating that Scherl took the titles back for those vehicles, and that the titles were not in appellant’s control after that.

MVA became involved after this because of concerns from the vehicle buyers and the financing company that the proper paperwork was missing. With respect to the three replacement checks, appellant asserted that Scherl knew not to cash those immediately because “that was included in our whole agreement, yes. Absolutely.” Appellant clarified that “I didn’t say don’t cash them, I said that we’ll let you ⁵⁴⁶ know when to cash the checks. I don’t know the exact conversation.” Final Argument on Motion for Judgment of Acquittal With respect to the first four checks issued on the Talbot Bank account, defense counsel argued that there was no evidence that appellant knew there was insufficient funds to cover those checks.

After hearing from the State that the evidence established that there were insufficient funds as early as the very next day after the checks were issued, the court denied the motion. The court stated that “I think the statute is clear there has to be sufficient funds to cover not only the check in question but in any other outstanding checks and obviously when the check was presented there were insufficient funds to do that.” Turning to the three Queenstown Bank checks, referred to as the replacement checks, defense counsel contended there was no evidence that appellant asked for a stop payment order on these checks, or that he even had authority to do so. The State responded that, while there was no evidence as to who asked for the stop payment order, that appellant admitted he wrote these checks and that appellant and Haddaway were both acting together in this case and were equally responsible. The court agreed that the jury could find that appellant and Haddaway were “aiding and abetting one another,” and that, because the issue was one for the jury to decide, the court denied the motion.

DISCUSSION I. We first address appellant’s claim of instructional error. In his brief, appellant asserts generally that: Defense counsel clearly stated the distinction between a civil claim for a bad check and a criminal bad check and that, not every check returned for insufficient funds means the conduct of the drawer is criminal in nature, supporting a conviction for bad check, but may only create a debt where ⁵⁴⁷ [the] person to whom the check is payable, has a civil claim against this drawer or maker of the check. Appellant clarifies this argument further: Had the Jury been instructed on the difference between a civil breach of contract action and criminal charges, there is a significant possibility that the Jury would have found that a hold-check agreement was in effect for the checks at issue, and the Jury would have acquitted Mr. Albertson of all violations under Section 8-103. The State responds by asserting that the trial court did not abuse its discretion in denying appellant’s requested instructions.

The State further asks us not to find error on the grounds that the trial court gave the pattern instructions for the underlying offenses. We agree that the trial court did not abuse its discretion in denying some of the requested instructions. Nevertheless, because the trial court is ultimately responsible for properly instructing the jury as to the applicable law, we are persuaded that there was error in not instructing the jury that the existence of a hold-check agreement could have negated the intent required to convict appellant of obtaining property or services by passing a bad check. 3 At trial, after appellant testified on direct examination, counsel and the court discussed defense counsel’s proposed ⁵⁴⁸ jury instructions outside the presence of the jury. Relevant to this claim, defense counsel wanted the court to instruct the jury: “To the extent an obligation is modified, supplemented, or nullified by an agreement, the agreement is a defense to the obligation.” After the court asked defense counsel to explain its rationale for this instruction, counsel responded that it was “out of the commercial law article, Your Honor, on negotiable instruments.” 4 The following discussion then ensued: THE COURT: Well that may be a civil principle of law but what relevance does it have to the criminal law? [DEFENSE COUNSEL]: Well because we’ve got an agreement here, Your Honor, that if the check is modified or the decision of the check is modified in any way then that means it’s not a negotiable instrument or a check at that point in time that can be named the bad check.

It goes along with the general law, Your Honor, and I’m quoting from bad checks and the instructions in the District Court of Maryland. After attempting to clarify that the source for this information was the District Court, defense counsel continued: [DEFENSE COUNSEL]: I’m just trying to explain the concept. Well I’m just trying to explain the concept, Your Honor. And that is the concept that is it’s either a bad check violation or a breach of contract.

In other words ⁵⁴⁹ when you give a check and it turns out to be bad, it is a criminal law violation if there is an immediate exchange of value. It’s not a bad check violation if for any reason you hold the check or you do something different with it. You’re paying it for rent. Or you’re paying it for some payment on a loan or something like that.

It’s a civil violation breach of contract. When asked to cite authority for this proposition, defense counsel replied that he did not have any, but that: [DEFENSE COUNSEL]: I think it’s a reasoning process, Your Honor, that if you read the statute the bad check statute it must be an immediate exchange for value for goods or services. The court denied counsel’s request to give the instruction, ruling as follows: Well absent some authority for your proposition I’m not going to give the instruction requested. I’m going to give the standard instructions.

You can argue what you think you can and as you understand the law. But I’m not going to give that instruction particularly in the abstract the way it’s framed here.... After argument on appellant’s motion for judgment of acquittal at the end of all the evidence, the parties and the court discussed jury instructions anew. At the conclusion of that discussion, the following transpired: [DEFENSE COUNSEL]: I do have a request, Your Honor, I think we need an instruction that distinguishes between the civil case of a breach of contract and the criminal case of their being a bad check.

A check is a promise to pay that’s a contract ... THE COURT: Do you have an instruction to submit? [DEFENSE COUNSEL]: I don’t have an instruction to submit. THE COURT: Well I’m not in the habit of entertaining, ad-libbing instructions and why would I instruct the jury to ⁵⁵⁰ make a distinction between a civil and a criminal concept. This is not a civil case. [DEFENSE COUNSEL]: Then I will phrase one if I may for the record very briefly and put it on the record even if the Court decides not to give it.

And that is ... THE COURT: All right, you may put whatever you want on the record. [DEFENSE COUNSEL]: There can be a check for insufficient funds that is a breach of contract. Or there can be a check for insufficient funds that is a criminal charge. THE COURT: Well I’m not going to instruct the jury to that effect.

You can argue that if you wish. Any other instructions? [DEFENSE COUNSEL]: No, Your Honor. Following this, the court instructed the jury. Those instructions were based on the then-existing pattern instructions regarding the crimes at issue.

The first instruction was for passing bad checks with knowledge of insufficient funds: The Defendant is also charged with the crime of obtaining property or services by a bad check. In order to convict the Defendant the State must prove, one, that the Defendant issued a check. Two, that the Defendant obtained property or services by issuing the check. Three, that the Defendant issued the check with knowledge that there were insufficient funds to cover that check and others outstanding.

Four, that the Defendant issued the check with the intent or belief that payment would be refused. And five, that the check was ultimately dishonored and the Defendant did not make the check good within 10 days after dishonor. And six, that the value of the property or services obtained was at least $500. See Maryland State Bar Ass’n, Maryland Criminal Pattern Jury Instructions 4:03, at 125 (2001) (“MPJI-Cr”).

The second charge was for passing a check with the intent to stop payment: ⁵⁵¹ The Defendant is also charged with the crime of obtaining property or services by a bad check. In order to convict the Defendant the State must prove, one, that the Defendant issued a check. Two, that the Defendant obtained property or services by issuing the check. Three, that the Defendant issued the check with the intent to stop payment on it.

And four, that the Defendant stopped payment without the consent of the payee and the check was dishonored and that the value of the property or services obtained was at least $500. See MPJI-Cr 4:03.1, at 127. The jury was finally instructed as to the statutory presumption permitting the following inference based on passing a check with insufficient funds: Knowledge that there were insufficient funds at the time the check was issued may be proved by the Defendant’s conduct and by all the surrounding circumstances. There has been placed into evidence a certificate under oath from the bank’s representative that the Defendant at the time of issuing the check did not have sufficient funds to cover that check and other outstanding checks.

Base[d] on the certificate you are permitted but not required to infer that the Defendant knew there were insufficient funds in the account. See MPJI-Cr 4:03.2, at 129. At the conclusion of the jury instructions, the court asked the parties if they had any “further instructions or comments on instructions other than what’s already been placed on the record ... ’’(emphasis added). Both parties replied that there were no further exceptions.

Despite the lack of exception, the State does not claim there was any procedural default with regard to the jury instructions. Given the trial court’s statement suggesting that all of defense counsel’s arguments placed on the record were preserved, we deem this issue properly before us. Maryland Rule 4~325(c) provides: “The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding.” “We review a trial judge’s decision whether to give ⁵⁵² a jury instruction under the abuse of discretion standard.” Arthur v. State, 420 Md. 512, 525 , 24 A.3d 667 (2011) (citations omitted). In determining whether a trial court has abused its discretion, we consider “(1) whether the requested instruction was a correct statement of the law; (2) whether it was applicable under the facts of the case; and (3) whether it was fairly covered in the instructions actually given.” Bazzle v. State, 426 Md. 541, 549 , 45 A.3d 166 (2012) (citation omitted). “The threshold determination of whether the evidence is sufficient to generate the desired instruction is a question of law for the judge.

The task of this Court on review is to determine whether the criminal defendant produced that minimum threshold of evidence necessary to establish a prima facie case ...” Bazzle, 426 Md. at 550 , 45 A.3d 166 (citations omitted). “[A] defendant needs only to produce ‘some evidence’ that supports the requested instruction[.]” Id. at 551 , 45 A.3d 166 . (citations omitted). “If there is any evidence relied on by the defendant which, if believed, would support his claim ... the defendant has met his burden.” Id. Here, there is no dispute that there was “some evidence” of a hold agreement before the jury. We will discuss that evidence further in our consideration of the sufficiency of the evidence that follows.

The question we must resolve now is whether the court erred in failing to give counsel’s requested instructions. We begin with counsel’s last request, prior to the court’s instructions to the jury. At that time, counsel requested the court to give the following instruction: There can be a check for insufficient funds that is a breach of contract. Or there can be a check for insufficient funds that is a criminal charge.

Defense counsel has cited no authority for this specific instruction, nor have we found any. The State notes that we recognized, in dicta, that “[principles of criminal law are inapplicable to the problems arising out of these contractual disputes.” See Schwartz v. State, 103 Md.App. 378, 393 , 653 A.2d 958 , cert. denied, 339 Md. 168 , 661 A.2d 701 (1995). We are not persuaded that this proposed instruction would have ⁵⁵³ been helpful to the jury. In any event, we readily conclude that this general law was more than fairly covered by the court’s instructions on the presumption of innocence and that the State had the burden to prove appellant’s guilt beyond a reasonable doubt.

We also conclude that appellant was not unfairly prejudiced by the court’s refusal to give this instruction because the record establishes that the jury was otherwise informed about the difference between civil and criminal cases during closing argument. Defense counsel distinguished between the burdens of proof in bad check cases under civil law and under criminal law. Counsel further argued that, in a civil case, Scherl would not have had to prove that appellant intended to have the check dishonored. In a criminal case, by contrast, the burden was proof beyond a reasonable doubt that appellant intended to have the check dishonored and that he knew that there were insufficient funds.

We conclude the trial court properly exercised its discretion in declining appellant’s requested instruction concerning the general difference between passing a bad check resulting in civil versus criminal prosecution. Next, considering the trial court’s clear indication that the argument had been preserved, we turn to appellant’s earlier requested instruction: “To the extent an obligation is modified, supplemented, or nullified by an agreement, the agreement is a defense to the obligation.” Defense counsel indicated that he found this language in the Commercial Law Article. Indeed, this sentence is part of the Uniform Commercial Code and is found in Section 3-117 of the Commercial Law Article: Subject to applicable law regarding exclusion of proof of contemporaneous or previous agreements, the obligation of a party to an instrument to pay the instrument may be modified, supplemented, or nullified by a separate agreement of the obligor and a person entitled to enforce the instrument, if the instrument is issued or the obligation is incurred in reliance on the agreement or as part of the same ⁵⁵⁴ transaction giving rise to the agreement. To the extent an obligation is modified, supplemented, or nullified by an agreement under this section, the agreement is a defense to the obligation.

Md.Code Ann. (1975, 2002 RepLVol.), § 3-117 of the Commercial Law Article. Section 3-117 is in the part of the code governing negotiable instruments. We conclude that the provision is inapplicable to the criminal charges in this case. It expressly provides that it is to be supplemented by State law in addition to the Uniform Commercial Code with respect to the applicability of the parol evidence rule.

There was no written agreement other than the checks. More important, the section deals with when an agreement, in addition to the negotiable instrument in question, may constitute a defense to civil liability on the instrument. We are not concerned with civil liability on the instrument. Appellant does not assert non-liability, only that the check was to be held until there were sufficient funds in the account, thereby avoiding criminal responsibility.

Having dispensed with two of appellant’s specific requested instructions, we turn now to his more general complaint. Counsel’s argument before the trial court was that: [W]hen you give a check and it turns out to be bad, it is a criminal law violation if there is an immediate exchange of value. It’s not a bad check violation if for any reason you hold the check or you do something different with it. It was apparent that counsel was requesting an instruction on the nature of the hold-check agreement that was in dispute in this case.

It also appears that counsel referred the court to language contained on the website for the District Court of Maryland. That website states the following: What is a Bad Check Violation? A bad check violation occurs when a person gives another person or business a bad check for an immediate exchange of goods or services. Two conditions must be met to charge an individual with a bad check violation: ⁵⁵⁵ An immediate exchange of goods or services.

A bounced check is not always a bad check violation. For example, payments under a contract, such as checks for rent, utilities, or