*1 FOR RESPONDENT: ATTORNEY Hayden T. Mark strictly construed should exclusion such Greenebaum, Doll & McDonald Mut. Auto. effective. insurance Tower Center 1400 Vine Trautwein, Ky., 414 S.W.2d Ins. Co. Box 1808 P.O. (1967). Lexington, KY herein, we posed to the second As the errors clausе of exclusion
hold Paul does issued St. policy
and omissions the Common- policy of public
not violate defeating the Kentucky, wealth America, STATES UNITED 304.9-105. KRS Plaintiff-Appellee, re- qualifications general enumerates agent or insurance permanent quired for appearing The exclusion license. solicitor Defendant-Appellant. BARB, Patsy agent an not render policy Paul’s St. degree as did complete to the uninsured Beacon, to in referred provisions exclusion Vehiсle the Motor Circuit. Beacon construes supra. Sixth upon a force- predicated Act as Reparations 3, 1994. Submitted March policy.- public To expression ful 6, 1994. qualifica- relates 304.9-105 trary, KRS May Rehearing Denied necessary insurance standards tions and residency, reputation, edu- i.e., age, licensing, of exami-
cation, completion, success course There responsibility.
nation, financial рolicy public case of appearance in applicable.
considerations statute, regard to this legislature, with policy behind emphasis to the not lent nor, forth re- 304.9, seq. setting et
KRS there be no specified that has it
quirements, We do coverage. minimum
exclusions exclusion, its ambi-
not find requirements the minimum
guity, eliminatеd Ins. Bishop v. Allstate See the statute. Ky., 623 S.W.2d certified. law is so
STEPHENS, C.J., LAMBERT, SPAIN,
REYNOLDS, STUMBO JJ.,
WINTERSHEIMER, concur. only.
LEIBSON, J., in result concurs MOVANT:
ATTORNEY FOR Moss
Gordon Lynn
Hays, Moss & Street
267 West Short KY 40507
Lexington, *2 by
reversible error admitting this evidence in violation of Fed.R.Evid. which mandates admission of only if the crimes involve “dishonesty or false state- argues ment.” She Smith, Marvin N. Atty., Asst. U.S. Greene- worthless check statute under which she was ville, (briefed), TN plaintiff-appellee. convicted, 39-14-121, § Tenn.Code Ann. Jerry Laughlin (briefed), W. per anot se crime dishonesty as by Laughlin, Nunnally Hood, Greeneville, TN, & court, and that inquiry for defendant-appellant. into the factual circumstances underlying her convictions, there is no evidence that MERRITT, Before Judge, Chief and or false state- SILER, MILBURN and Judges. Circuit government respоnds that MERRITT, Chief delivered the on its face requires an court, MILBURN, defraud or knowing which misrepresentation, Judge, joined. falling Circuit squarely within scope Judge (pp. 696-97), separate delivered a dissenting opinion. Tennеssee’s worthless check pro-
MERRITT,
Judge.
Chief
vides
(a)
This is an
appeal
jury
A
con-
who,
commits an offense
viction for
aiding
two counts of
abetting
and
knowingly:
intent or
wire fraud in
§
violation of 18 U.S.C.
(1) Issues or passes a cheek ... know-
for which the
sentenced her to
ing at that time that there are not suffi-
imprisonment.
months
appeal,
On
she
cient funds in or on deposit with the
assignments
raises two
First,
of error.
de-
bank_
fendant asserts that
the district court im-
(b) ...
[T]he issuer’s ... fraudulent intent
properly admitted evidence of prior misde-
knowledge
or both of insufficient funds
meanor convictions for “fraud” in violation of
may be inferred if:
609(a)(2)
of the Federal Rules of Evi-
(1)
presentation
Second,
(30)
On
dence.
thirty
contends that the dis-
days
issuing
after
trict court
...
refusing
the check ... pay-
erred
to reduce her
ment
offense level
refused
the bank ...
being
for lack
minimal minor
of funds ...
pаrticipant
the issuer
the criminal
fails to
activity under
(10)
good
§
days
3B1.2 of
within ten
the United
after re-
States Sentencing
ceiving notice
Guidelines.
of that refusal.
We find
argu-
defendant’s first
ment
meritorious
therefore reversе her
Tenn.Code Ann.
39-14-121.2 In State v.
conviction.1
(1986),
the Ten-
trial,
Prior to
defendant filed a motion in
Court affirmed a trial
limine requesting
government
court’s exclusion of a bad check conviction.
prohibited
inquiring
about her thrеe The court stated that
actual records of
“[n]o
1989 Tennessee misdemeanor convictions for
introduced,
this incident were
and the trial
concluded that
concerning
appeal
contеnds on
court committed
offense was
neither
1. Because we reverse defendant's
we
issufing]
intent but also "knowingly
need
not reach the
Guidelines issue.
knowing
... a check ...
at the time there are not
deposit
оn with the bank."
2. The
question
dissent raises the
of what
(Appellee’s
Brief at
No
14—
of the Tennessee worthless
check statute is rele-
ever raised
or the defendant
vant to
this case. The
concedes in
in thе district
appeal
in the briefs on
its brief that
different,
"[t]he
Tennessee statute"
former version of the statute is at
under which the defendant was convicted is
Consequently,
rely
issue.
parties
on the
which criminal-
the distriсt court that Tenn.Code
only issuing
izes not
a worthless check with
appropriate
is the
version in this case.
Barb was
like
credibility of
nor relévant
clear
victed,
element
required as an
its admission.”
justify
witness
only was
Nоt
intent.
in a
The Tennessee
Barb,
but there
to convict
required
decision,
on Goad
relied
*3
factual
regarding the
in the record
evidence
is not
checks
worthless
passing
that
surrounding
convictions
the
cirсumstances
dishonesty or false state
of
always a crime
intent when
knowledge or
Dixon,
1992 WL
v.
Barbee
sum, no evi-
In
the worthless
wrote
Barbee,
court
the trial
In
(Tenn.App.1992).
or false
establishes
dence
a wit
of
of evidence
the admission
allowed
statement.
for
conviction
misdemeanor
Tennessee
ness’s
of
The court
check.
worthless
a
find
Barbee
Under
Denami
error, clearly
admission
the
ruled
appeals
it admitted
court erred
that
not a
is
conviction
such a
acknowledging that
the
the basis of
on
convictions
check
the bad
stated
dishonesty: “We have
crime of
per se
convic
matter оf law
as a
that
view
mistaken
bad
prior misdemeanor
the
for
the basis
that
cheek
Tennessee’s
under
tions
dishones
may have involved
conviction
check
it is
dishonesty. While
of
are crimes
statute
trial
finding
within the
[is]
a
ty
that such
checks
for worthless
a conviction
clear that
Barbee, 1992 WL
judge’s discretion.”
under
for admission
may qualify
added).
(emphasis
at *9
that
equally clear
it is
false
funds
rect
S.W.2d
former
sertion
of the
find
because
The
insufficient
time
had
found,
The
not
Denami
appeal of
defendant
representation
the checks
statute.
after a review
check
that the
sufficiently proven
it
had
(Tenn.Crim.App.1979),
persuasive.
a criminal
argued that the
not
gravamen of
always implicitly
of
were
cites State
of
that there
shown
of
Tennessee’s worthless
intent;
pay the checks
the check. We
the evidence
written.
cоnviction
Denami
that
are sufficient
Denami,
there were
for
making a
was
39-1959.
present-
the as-
do not
at the
issuer
court
a
di-
a
funds_”
matter
for
ningham, 638
criminalizes
at
esty and adds
ability to
unable
U.S.C.C.A.N., pp.
fraud
hard
(citing
evidence
Cong.,
significant
truthfulness
the
fought fraud
in other
of
to
2d
H.R.Conf.Rep. No.
judge the
time
law, a conviction
impact on the
say that
simply
Sess.
Such
harmless error.
F.2d
cases
aof
nothing
there
See United
a
writing a check
9, reprinted
credibility
696, 698
witness,
conviction,
may
are
and this
.admission
jury.
well
involving dishon
States
the
not
93-1597, 93d
have
is
evidence
factfinder’s
propensity
not,
“knowing
Cir.1981)
v. Cun
made
We
of
was a
[1974]
as a
are
of
of
“overwhelming
jury, that there was'
ed to
of the
judgment
Accordingly,
delivered
checks
that
were
evidence
case is remanded
and the
is reversed
intent”;
knew
defendant
a new trial.
money in
account and
his
he had
that
pre-
through
the bank
attempting to defraud
dissenting.
$15,500
cheeks
different
of three
sentation
from the
dissent
decision
respectfully
of each
hours
of the bank
branches
three Tennessee
majority
of
that
use
he was
that
showed
evidence
other.
despite
cheeks
money from the
to obtain
able
As the
error.
was reversible
money
because
in his account
having no
discussed
has
manipulation knowledge his extensive
issue,
express an
I also decline
Guidelines
Denami, 594
system.
computer
the bank’s
question.
on
at 750.
S.W.2d
609(a)(2), if a witness
Under Fed.R.Evid.
of Denami
the facts
is clear from
involving
for a crime
prior conviction
his
defraud
аttempting to
the defendant was
statement,
the court
false
un-
Further,
the bank.
deny
not have discretion .to
admissibility,
its
cluded
bad check
years
unless
is more than ten
old or
there
was not
clear nor rel
problems
other
evant to
with the
the issue of credibility
not in
of the witness
who had
been
issue in
convicted.
this case. See
Morrow,
had
Cir.1992)
discretion to
(en
exclude
the con
—
victions under
Likewise,
banc),
law.
U.S. -,
Dixon,
Barbeе
decision
and all upon other checks ... such funds
then outstanding. Nevertheless, statutes, under either of the Kathy BONDS, Plaintiff-Appellant, the violations involved dishonesty. As the majority opinion recites, COX; Harris; C.W. H.J. and D.R. 594 S.W.2d 750 (Tenn.Crim.App.1979), Aldridge, Defendants- held, gravamen “The charged оffense Appellees. is the fraudulent intent with which the cheek passed or uttered.” Denami followed State, (Tenn. Stines v. 556 S.W.2d United States Court of Crim.App.1977), which “It stated: Sixth Circuit. the worthless check with fraudulent Submitted Oct. 1993. constitutes crime.” The decision in (Tenn. State v. 1986), is not contrary. In that found no
abuse of discretion when