Agenda - Council - 05/08/1990 - Laserfiche WebLink

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I I I I I ! I ! I I I I I I I I I ! Under thc facts as they exist, we have a time period of three weeks in which the check was held and then finally presented to the bank. In addition, we have a situation where the parties are making conflicting claims as to whether or not the check has been paid since that time. Certainly, Mr. Kozitza has a colorable claim that he, in fact, has paid this check by agreeing to give up any claim he would have to return of his damage deposit and by providing Mr. Boschee with a money order for the balance of the money owed. Please note that the receipt for the money order indicates that it was marked "paid in full". As always, the evidence and its application to the elements which must be proved at 'trial, must be evaluated in light of the standard in criminal cases, which is proof beyond a reasonable doubt. Specifically, the prosecution would have to prove to the satisfaction of a jury, beyond a reasonable doubt, that three weeks is of a reasonable time to hold onto a check before presentment to a bank. In addition, the prosecution would have to prove, beyond a reasonable doubt, that the check was not subsequently paid by retention of the damage deposit and acceptance of a $210 money order. Further, the State would have to prove that the check was not for a past consideration, i.e., that the check was not for past due rent. A jury would not find that there was intent that the check not be paid at the time it was issued. Mr. Kozitza had sufficient funds on October 24, 1989, to pay the check. A jury would find that three weeks is not a reasonable time to hold onto a total of $820 before presenting the two checks to the bank. This is particularly true when there has been a history of late payments and, according to Mr. Boschee, previous returned checks. Mr. Boschee does not claim that Mr. Kozitza asked him to hold the check. It is also unlikely that a jury would find, beyond a reasonable doubt, that Mr. Kozitza has not paid the check. The evidence would consist of the testimony of Mr. Boschee and Mr. Kozitza. The conflict of the evidence would indicate that a jury would have to totally believe Mr. Boschee and totally disregard Mr. Kozitza in order to find Mr. Kozitza guilty. Mr. Kozitza has in his possession a writing, which he claims he received from Mr. Boschee, indicating what exactly was owed. The handwriting on the document that Mr. Kozitza has appears to be similar to Mr. Boschee's signature. This evidence would be difficult to discredit. It is likely that a jury would find that, even though Mr. Kozitza may owe Mr. Boschee additional monies for damages to the apartment, he did make the $410 returned check good. For these reasons, I concur with the assessment of the Ramsey City Prosecutor that criminal charges could not be proved beyond a reasonable doubt and that the case is, therefore, inappropriate for criminal prosecution. I also recommend to Mr. Boschee that he pursue this as a civil matter. He may have a good claim for damages to his apartment and money owed him by Mr: Kozitza in' that' regard: Mr. Boschee's remedies lie in the civil courts. KMT/mm