12 Mass. App. Ct. 993

December 14, 1981

The defendant appeals from a conviction of larceny by check, G. L. c. 266, Section 37.

There was evidence to the effect that the complainant was to videotape a fashion show conducted by the defendant for which the complainant would be paid cash on delivery; that when payment was not made on demand at the conclusion of the show the videotapes were withheld by the complainant; and that delivery of the tapes was not made until four days later, after the defendant issued his check, which was later dishonored, for $1,400. From this evidence, disregarding the evidence less favorable to the Commonwealth on which the defendant relies, the finder of fact could properly draw the inference that the defendant obtained property by issuing a check for which there were insufficient funds.

The statute also requires that the check be issued with the intent to defraud. There was further evidence that the corporate checking account involved was repeatedly overdrawn in the weeks before and after this check was issued and that the defendant, who admitted at trial that "we had a cash flow problem," made no effort to replace the check and has never made good on his debt to the complaint. Even without the statutory presumption, we think the evidence taken as a whole was sufficient beyond a reasonable doubt to warrant an inference of intent to defraud.

Judgment affirmed.