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Delay-Wilson v. State (10/28/2011) ap-2328

Delay-Wilson v. State (10/28/2011) ap-2328

        The text of this opinion can be corrected before the opinion is published in the Pacific 
        Reporter.   Readers are encouraged to bring typographical or other formal errors to the 
        attention of the Clerk of the Appellate Courts. 

                                  303 K Street, Anchorage, Alaska   99501
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DOROTHY S. DELAY-WILSON,                          ) 
                                                  )         Court of Appeals No. A-10721 
                            Appellant,            )       Trial Court No. 3AN-09-1070 CR 
             v.                                   )                   O P I N I O N 
STATE OF ALASKA,                                  ) 
                            Appellee.             )         No. 2328 - October 28, 2011 

                 Appeal     from    the  Superior     Court,   Third    Judicial   District, 
                 Anchorage, Michael Spaan, Judge. 

                 Appearances:       Rex   Lamont     Butler,   Rex    Lamont     Butler   & 
                 Associates,     Inc.,  Anchorage,      for  the   Appellant.     Eric    A. 
                 Ringsmuth,      Assistant    Attorney    General,    Office    of  Special 
                 Prosecutions      and  Appeals,     Anchorage,     and   John   J.  Burns, 
                 Attorney General, Juneau, for the Appellee. 

                 Before:    Coats,    Chief   Judge,    and Mannheimer        and   Bolger, 

                 COATS,      Chief Judge. 

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                Dorothy   Delay-Wilson   was   convicted   of   three   counts   of   issuing   a   bad 
check1  and one count of second-degree theft.2  The bad check convictions were based on 

three separate checks that she deposited to her Key Bank account during September 

2008.  Two of the checks were in the amounts of $6000 and $3500 and were drawn from 

her Wells Fargo account, which did not have enough funds to cover the checks.                    The 

third check was a counterfeit check drawn on a third person's account in the amount of 

$3825.    Delay-Wilson would cash the checks and then deposit the cash into her Key 

Bank account.      In this manner, Delay-Wilson avoided having the bank place a hold on 

the checks. She would later withdraw the cash from the account.  The State's theory was 

that Delay-Wilson used her knowledge of banking practices to siphon money from her 

Key Bank account while it was artificially inflated by the bad checks. 

                Delay-Wilson argues that she should have been acquitted on one of the 

convictions for issuing a bad check.         This was the counterfeit check for $3825 from 

Ingram Book Company which Delay-Wilson cashed on September 17, 2008.  She then 

deposited the cash from this check into her bank account.             The check was made out to 

Amanda VanVliet, Delay-Wilson's daughter, and was endorsed by VanVliet payable to 

Delay-Wilson, who in turn endorsed the check. 

                Under AS 11.46.280(a), "a person commits the crime of issuing a bad check 

if the person issues a check knowing that it will not be honored by the drawee."  Further, 

"a person 'issues' a check when as a drawer the person delivers it or causes it to be 

delivered to a person who thereby acquires a right against the drawer with respect to the 

        1   AS 11.46.280(d)(2). 

        2   AS 11.46.130(a)(1). 

                                                - 2 -                                             2328 

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check ... ."3     The statute does not define the term "drawer."            But the Alaska statutes 

adopting the Uniform Commercial Code define "drawer" to mean "person who signs or 
is identified in a draft as a person ordering payment ...."4       In other words, the offense of 

issuing a bad check under AS 11.46.280 requires proof that the defendant signed or 

otherwise authorized the check in question. 

                Here,   the   Ingram   Books   check   purported   to   authorize   payment   from   a 

Citibank account belonging to Ingram Books.             Delay-Wilson did not "issue" the check 

in question - she did not sign the check in the sense of authorizing payment from an 

account that she owned or controlled. She merely signed the check to endorse it and thus 
negotiate it.5 

                The State concedes that the mere act of endorsing the check is not sufficient 

to establish liability under AS 11.46.280 and that Delay-Wilson did not issue the Ingram 
Books   check.    The   State's   concession   of   error   is   well   founded.6 Therefore,   Delay­ 

Wilson's conviction on this count must be vacated and a judgment of acquittal must be 


                Delay-Wilson argues that her other two convictions for issuing a bad check 

should also be overturned. Delay-Wilson cashed a $6000 check on September 13, 2008. 

She deposited a $3500 check in one of her accounts on September 25, 2008.                    In these 

two instances, it is uncontested that Delay-Wilson issued these checks as the drawer of 

the checks. She wrote the checks on an account owned by her, and she signed the checks 

and delivered them to the bank. Delay-Wilson concedes that she issued these checks and 

        3   AS 11.46.280(c)(3) (emphasis added). 

        4   AS 45.03.103(a)(3). 

        5   See AS 45.03.201, .204. 

        6   See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972). 

                                                - 3 -                                           2328

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that they were not honored.  But she argues that there was insufficient evidence to show 

that she did so knowingly. 

                When   evaluating   a   verdict   to   determine   if   it   is   supported   by   sufficient 

evidence, we evaluate the evidence and the inferences from the evidence in the light most 
favorable to upholding the jury's verdict.7        We uphold a guilty verdict when we conclude 

that a reasonable jury could have concluded that the defendant was guilty beyond a 
reasonable doubt.8      From the evidence presented at trial, the jury could have found that 

Delay-Wilson knew that there was nowhere near a sufficient amount of money in the 

account on which the checks were drawn to pay the checks when she deposited them. 

Delay-Wilson also withdrew substantial amounts of cash from her account before the 

bank realized that the checks were not good.            In addition, the State presented evidence 

that Delay-Wilson deposited two counterfeit checks almost a year later in June and July 

of   2009.   Delay-Wilson   was   an   experienced   business   woman   who   owned   multiple 

businesses.     This   evidence   supported   a   reasonable   conclusion   by   a   jury   that   Delay- 

Wilson had not merely made a mistake when she issued the two checks in September of 

2008, but knew that there were insufficient funds in her accounts to pay the checks.  We 

conclude that, evaluating the evidence in the light most favorable to the jury's verdict, 

the jury could have found Delay-Wilson guilty beyond a reasonable doubt. 

                Delay-Wilson argues that her conviction for theft in the second degree was 

not supported by sufficient evidence.          A person commits second-degree theft "if with 

intent to deprive another of property or to appropriate property of another to oneself or 

        7   Id. 

        8   Phillips v. State, 211 P.3d 1148, 1151 (Alaska App. 2009). 

                                                  - 4 -                                             2328

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a third person, the person obtains the property of another,"  and that property is worth 
"$500 or more but less than $25,000."10 

                 Delay-Wilson asserts that, because her actions were easily traceable, no 

reasonable jury could conclude that she would try to steal money from Key Bank by 

depositing bad checks and then withdrawing the cash before the checks were discovered 

to be bad.     But this scenario reviews the evidence in the light most favorable to Delay- 

Wilson.      As   we   have   previously   stated,   we   review   the   evidence   in   the   light   most 

favorable to upholding the jury's verdict.             And, as in our analysis of her bad check 

convictions, we conclude that a reasonable jury could find that Delay-Wilson acted with 

the intent to deprive Key Bank of property worth more than $500. 

                 Delay-Wilson argues that Judge Spaan erred in instructing the jury on the 

mental state which the jury was required to find in order to convict her of theft.  She 

contends that he should have instructed the jury on the charge of theft by deception and 

should have instructed the jury that, to convict her, the jury had to find that she did not 
believe there were sufficient funds in her accounts to pay the checks which she issued.11 

                 Delay-Wilson failed to preserve this argument by raising an objection at 

trial. She must therefore establish that the alleged error would be obvious to a competent 
judge or attorney even without an objection. 12 

         9   AS 11.46.130. 

         10  AS 11.46.100. 

         11  See generally AS 11.46.180 (theft by deception statute); AS 11.81.900(b)(18)(A) 

(defining "deception" to mean "to knowingly create or confirm another's false impression 
that the defendant does not believe to be true, including false impressions as to law or value 
and false impressions as to intention or other state of mind"). 

         12 Adams v. State , 927 P.2d 751, 756 (Alaska App. 1996). 

                                                   - 5 -                                              2328

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                 The State did not charge Delay-Wilson with theft by deception.                    Judge 

Spaan instructed the jury that, to convict Delay-Wilson of theft in the second degree, the 

jury had to find that she "intended to deprive another of property or to appropriate the 

property of another to herself," that she "obtained the property of another," and that "the 

value of the property was $500 or more."  Under the court's instructions, the jury had to 
find that Delay-Wilson had the "conscious objective" to deprive the bank of the money.13 

Because the jury had to find that Delay-Wilson intended to deprive the bank of property, 

it had to find that she knew that there were insufficient funds in her accounts when she 

issued the checks.      We do not find plain error. 


                 On REMAND, we direct the superior court to VACATE Delay-Wilson's 

conviction   on   Count   II,   the   count   that   charges   her   with   issuing   the   bad   check   on 

September 17, 2008.  The court shall enter a judgment of acquittal on this charge.   In all 

other respects, the judgment of the superior court is AFFIRMED. 

         13 See generally AS 11.81.900(a)(1) (stating that "a person acts 'intentionally' with 

respect to a result ... when the person's conscious objective is to cause that result"). 

                                                  - 6 -                                               2328 
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