State Of Oklahoma v Wilma Fay Jackson

S-2007-779

Filed: May 1, 2008

Not for publication

Prevailing Party: Wilma Fay Jackson

Summary

Wilma Fay Jackson appealed her conviction for obtaining money by false pretenses. Conviction and sentence were dismissed due to lack of evidence. Judge Lumpkin dissented.

Decision

The Judgment of the District Court is AFFIRMED. Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there sufficient evidence to support the charging information against Wilma Fay Jackson?
• Did the district court err in sustaining the motion to quash and dismiss based on the lack of sufficient evidence for the charged offense?
• Was there an adequate demonstration of a "false representation" and that the nursing home was deprived of the services of a licensed LPN due to Jackson's actions?

Findings

• the district court properly sustained the motion to quash the information for lack of sufficient evidence to prove a necessary element of the charged offense
• the Judgment of the District Court is AFFIRMED
• I would reverse and remand for the district court to issue a bind over on Counts 23 through 84

S-2007-779

May 1, 2008

State Of Oklahoma

Appellant

v

Wilma Fay Jackson

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE A. JOHNSON, JUDGE:

Wilma Fay Jackson was charged by Information in the District Court of Okmulgee County, Case No. CF-2007-13, with eighty-four felony counts and two misdemeanor counts of Obtaining Money by False Pretenses, in violation of 21 O.S.2001, § 1541.1 and § 1541.2. The District Court sustained Jackson’s Demurrer, and Motion to Quash and Dismiss, and ordered the case dismissed. The State appeals the dismissal under 22 O.S.2001, § 1053(4). The State appeals by claiming the district court erred in finding that the charging information was not supported by sufficient evidence. We find no merit to the State’s claim. The district court properly sustained the motion to quash the information for lack of sufficient evidence to prove a necessary element of the charged offense. See 22 O.S.2001, § 504.1 (providing in relevant part that to prevail on motion to quash information for insufficient evidence, defendant must establish beyond the face of the indictment or information that there is insufficient evidence to prove any one of the necessary elements for which [she] is charged); Reeves v. State, 1939 OK CR 152, 96 P.2d 536 (holding that crime of obtaining property by false pretenses requires among other things, a false representation or statement of past existing fact and an obtaining of something of value by accused without compensation to the person from whom it is obtained), overruled in part on other grounds by Broadway v. State, 1991 OK CR 113, I 7, 818 P.2d 1253, 1255.

DECISION

The Judgment of the District Court is AFFIRMED. Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF OKMULGEE COUNTY

THE HONORABLE JOHN MALEY, DISTRICT JUDGE

APPEARANCES AT TRIAL

ROBERT FUGATE
ASSISTANT PUBLIC DEFENDER
P.O. BOX 926
NORMAN, OK 73070
ATTORNEYS FOR APPELLEE

TOM GIULIOLI
DISTRICT ATTORNEY
314 WEST 7TH STREET
OKMULGEE, OK 74447
ATTORNEY FOR STATE

APPEARANCES ON APPEAL

KATRINA CONRAD-LEGLER
P.O. BOX 998
OKMULGEE, OK 74447
ATTORNEYS FOR DEFENDANT

TOM GIULIOLI
DISTRICT ATTORNEY
314 WEST 7TH STREET
OKMULGEE, OK 74447
ATTORNEY FOR APPELLANT

OPINION BY: A. JOHNSON, J.

LUMPKIN, P.J.: Concur in Part/Dissent in Part

C. JOHNSON, V.P.J.: Concur

CHAPEL, J.: Concur

LEWIS, J.: Concur

LUMPKIN, PRESIDING JUDGE: CONCUR IN PART/DISSENT IN PART

While I agree Counts 1-22 were properly dismissed due to the time period covered by those Counts being before the period covered by the fraudulent license, i.e. February 1, 2004 through January 31, 2006, I must dissent to the Court’s affirming the action of the district court on the remaining Counts. With all due respect, I believe the district court, and maybe this Court, was more concerned about the fairness of the state statute that required the revocation of the defendant’s LPN License due to failure to pay state income taxes than it was about the fraud that had been committed through the use of a falsified LPN License. The Court states there was a failure to prove an obtaining of something of value by accused without compensation to the person from whom it was obtained. Yet the analysis misses the point of what took place, i.e. the nursing home contracted for the services of a properly licensed LPN nurse but they did not receive the services of a licensed LPN. While the defendant did work at the nursing home, she was not a licensed LPN, thus her fraudulent acts deprived the nursing home of the level of services for which she was hired. The nursing home would not have hired her for an LPN position if they had known she was not a licensed LPN. It was her false representation that caused the nursing home to hire and pay her at an LPN rate of pay. To follow the district court’s analysis, any person fraudulently holding themselves out as a licensed professional, who actually performed some services, could not be prosecuted for that fraud because some service was actually provided. However, the real issue is, was the nursing home deprived of the services of a licensed LPN by the defendant’s fraud? The answer is yes. It does not matter that the defendant actually worked the hours at the nursing home, because the hours were not worked by a licensed LPN. The payments she received for the work of a licensed LPN were received due to her fraud and misrepresentation. I would reverse and remand for the district court to issue a bind over on Counts 23 through 84.

Click Here To Download PDF

Footnotes:

1. 21 O.S.2001, § 1541.1
2. 21 O.S.2001, § 1541.2
3. 22 O.S.2001, § 1053(4)
4. 22 O.S.2001, § 504.1
5. Reeves v. State, 1939 OK CR 152, 96 P.2d 536
6. Broadway v. State, 1991 OK CR 113, I 7, 818 P.2d 1253, 1255

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1541.1 - Obtaining Money by False Pretenses
• Okla. Stat. tit. 21 § 1541.2 - Obtaining Money by False Pretenses
• Okla. Stat. tit. 22 § 1053 - Appeals from District Court
• Okla. Stat. tit. 22 § 504.1 - Motion to Quash Information

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Reeves v. State, 1939 OK CR 152, 96 P.2d 536
• Broadway v. State, 1991 OK CR 113, I 7, 818 P.2d 1253, 1255