OPINION
The appellant, Larry Sneed, was convicted by a jury of the offense of passing a worthless check. Mr. Jones, whose testimony was рreserved by deposition because of his ill health, stated that Sneed had persuaded him to accept Sneed’s check fоr $25,000 in exchange for a check drawn on Jones’s bank in the amount of $25,000. The exchange occurred on a Saturday. Sneed told Mr. Jonеs that he needed to procure a certified cheek for a business transaction which was to take place on Monday. Since the Monday in question was Memorial Day, a bank holiday, and Sneed’s bank was not open on Saturday, he proposed to Jones, whose bank was open on Saturday, that the two “swap checks.” Mr. Jones agreed to the exchange because he hаd both a business and a personal relationship with Sneed dating back several years. When Sneed’s check was first presented for рayment, it was dishonored because there were insufficient funds in the appellant’s account. When Mr. Jones contacted Sneеd and informed him of the instrument’s presentment and dishonor, Sneed stated that there must have been some sort of mistake and *409 urged Jones to run thе check through the bank a second time. When Mr. Jones did so, he learned that Sneed’s account had been closed.
Although the aрpellant has listed three issues in his brief, the issues presented for our review can be condensed into two: whether the taking of the victim’s testimony by deposition in the appellant’s absence violated the appellant’s constitutional rights and whether there was sufficiеnt evidence to support the jury’s verdict.
APPELLANT’S ABSENCE AT THE VICTIM’S DEPOSITION
The appellant contends that his constitutional right to due process and his constitutional right to confront witnesses were violated because he was not permitted to attend the victim’s deposition as required by Rule 15(b) of the Tennessee Rules of Criminal Procedure. Rule 15(b) provides in pertinent part:
The officer having custody of a defendant shall be notifiеd of the time and place set for the examination and shall, unless the defendant waives in writing the right to be present, produce him at thе examination. ... A defendant not in custody shall have the right to be present at the examination upon request ... but his failure, absent good сause shown, to appear ... shall constitute a waiver of that right and of any objection to the taking and use of the depositiоn based upon that right.
Tenn.R.Crim.P. 15(b).
The appellant alleges that he was incarcerated in the Maury County Jail on an unrelated matter at thе time of the deposition and that he was not transported to the place of the deposition as required by Rule 15(b). A presentenee report submitted on January 28, 1994, indicates that when the report was prepared, the appellant was incarcerated in the Maury County Jail for failure to pay child support. The record is devoid of any reference, however, to the appellant’s having been incarcerated on August 30, 1993, the date of the deposition. The appellant’s counsel was present at the taking of the deposition. The text of the deposition, which was entered into evidence at the appellant’s trial, reveаls no contemporaneous objection to the taking of the deposition without the presence of the appellant. The appellant, raising this issue for the first time on appeal, still has produced no evidence that he was incarceratеd and therefore unable to attend the taking of Mr. Jones’s deposition. 1 This issue is simply without merit.
SUFFICIENCY OF THE EVIDENCE
The appellant contends that the evidence prеponderates against the jury’s verdict because the evidence shows that Mr. Jones knew when he received the check from thе appellant that the appellant did not have sufficient funds to cover the check. Tennessee Code Annotated Seсtion 39-14-121 (1991), the worthless check statute, does not apply to situations “where the payee or holder knows or has good and sufficiеnt reason to believe the drawer did not have sufficient funds on deposit to his credit with the draw-ee to ensure payment.” Id.
Where an аppellant challenges the sufficiency of the convicting evidence, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia,
Having reviewed the testimony of Mr. Jones, we conclude that the evidence is sufficient to establish that, while he was aware that he could not cash the check until the *410 appellant’s bank opened on Tuesday, Mr. Jones had no reason to know that the appellant’s cheek was not good on Saturday when thе exchange took place.
The appellant also maintains that the evidence introduced at trial is insufficient to support the jury’s verdict of guilty because there was no identification of the appellant as the person who gave the check to Mr. Jones. The state has the burden of proving the identity of the defendant beyond a reasonable doubt.
White v. State,
The judgment of conviction is vacated, and the indictment is dismissed.
Notes
. Because appellant was not present at the deposition, Mr. Jones did not identify him as the perpetrator. Had appellant attended, the next issue could be meritless.