Jonathan Brent Buccino v State Of Oklahoma

F-2018-350

Filed: Jul. 18, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Jonathan Brent Buccino appealed his conviction for three counts of embezzlement. His conviction and sentence were upheld, meaning he will face five years in prison for each count, with the sentences running one after the other, but they were all suspended. Judge Lumpkin wrote the opinion, and no judges dissented.

Decision

The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an error in convicting the defendant of embezzlement due to insufficient proof regarding the restrictions on the defendant's use of invested money based solely on oral testimony?
• Did the District Court err in its application of the Statute of Frauds, which the defendant argued invalidated the agreement because it could not be completed within a year?
• Was the trial court correct in determining that the crime of Embezzlement does not require the existence of a contract, rendering the Statute of Frauds inapplicable?
• Did the prosecution have sufficient evidence to support the filing of criminal charges against the defendant despite the argument that this matter should have been pursued civilly?

Findings

• the court did not err, the evidence was sufficient to support a conviction for embezzlement
• the court did not err, the Statute of Frauds is not applicable to the crime of embezzlement

F-2018-350

Jul. 18, 2019

Jonathan Brent Buccino

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Jonathan Brent Buccino was convicted in a non-jury trial before the Honorable Brian Henderson, Associate District Judge, of three (3) counts of Embezzlement (21 O.S.Supp.2004, § 1451), in the District Court of LeFlore County, Case No. CF-2013-405. Appellant was sentenced to imprisonment for five (5) years in each count, said sentences ordered to run consecutively, and all sentences were suspended. It is from this judgment and sentence that Appellant appeals.

Appellant raises the following propositions of error in support of his appeal:

I. Did the District Court err in convicting the defendant of embezzlement where the State clearly failed to reach its burden of proof beyond a reasonable doubt regarding restrictions on how the defendant could utilize invested money when the only evidence presented was oral testimony.

II. Did the District Court err in convicting the defendant of embezzlement where the Statute of Frauds applies because this agreement could not have been completed within a year.

After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted.

In Proposition I, we review Appellant’s challenge to the sufficiency of the evidence supporting his conviction in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Mitchell v. State, 2018 OK CR 24, IT 11, 424 P.3d 677, 682. In reviewing sufficiency of the evidence claims, this Court does not reweigh conflicting evidence or second-guess the decision of the fact-finder; we accept all reasonable inferences and credibility choices that tend to support the verdict. Id. The credibility of witnesses and the weight and consideration to be given to their testimony are within the exclusive province of the trier of facts. Rutan U. State, 2009 OK CR 3, I 49, 202 P.3d 839, 849. Generally, the rule in embezzlement situations states, when the agent does with the money or property only what he is authorized to do by the terms of his employment, he is not guilty, but conversely, where the agent is authorized to dispose of the money or property in a particular manner, any other disposition with fraudulent intent constitutes embezzlement. Logan v. State, 1972 OK CR 38, I 19, 493 P.2d 842, 845. See also 21 O.S.2011, § 1451.

Reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found beyond a reasonable doubt that Appellant was authorized to spend the victim’s investments only on software development and that he instead used the money for other purposes. The elements of embezzlement were clearly met by the State’s evidence, and this proposition of error is denied.

In Proposition II, Appellant asserts the Statute of Frauds applies in his case and argues that any agreement must be invalidated as it violates the Statue of Frauds because it was required to be in writing since it couldn’t be completed within a year’s time and failing to put said agreement in writing requires the Court to ‘guess’ if the Defendant’s actions were criminal. Appellant contends the correct avenue for this matter should have been a civil case. Therefore, this Court should reverse the District Court’s finding of guilt.

Appellant’s reliance on the Statute of Frauds was raised during defense counsel’s closing argument. The trial court made no comment on the argument. In returning a guilty verdict, we can only presume the court rejected the argument. To the extent our review on appeal is that of the trial court’s construction and application of Oklahoma law, we review the trial court’s decision de novo. State U. Davis, 2011 OK CR 22, IT 5, 260 P. 3d 194, 195. The Statute of Frauds is found in 15 O.S.2011, § 136. It is not applicable to the instant case. The crime of Embezzlement does not require the existence of a contract. Whether or not there was a contract is totally irrelevant to the crime of Embezzlement. See 21 O.S.2011, § 1451 (elements of embezzlement). Appellant’s reliance on the Statute of Frauds affords him no relief. The trial court did not err in rejecting its application in this case.

Appellant’s argument that this should have been a civil case, and not a criminal case affords him no relief. The issue is not whether the victim had a civil cause of action against Appellant, but rather whether Appellant’s behavior supported the criminal action brought against him. Morrison U. State, 1990 OK CR 33, I 7, 792 P.2d 1189, 1192. District Attorneys in the State of Oklahoma have general discretion and authority to decide what criminal charges should be filed in a case. McNeely U. State, 2018 OK CR 18, I 9, 422 P.3d 1272, 1276. Here, the District Attorney was well within his discretion in filing criminal charges against Appellant. That the victim might be entitled to relief in civil court is not relevant to the decision to file criminal charges. As addressed in Proposition I, the State’s evidence was sufficient to support a conviction for Embezzlement therefore, it was sufficient to support the filing of criminal charges. This proposition is denied.

Accordingly, this appeal is denied.

DECISION

The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF LEFLORE COUNTY

THE HONORABLE BRIAN HENDERSON, ASSOCIATE DISTRICT JUDGE

APPEARANCES AT TRIAL

GARY R. BUCKLES
P.O. BOX 771
POTEAU, OK 74953
COUNSEL FOR DEFENDANT

APPEARANCES ON APPEAL

GARY R. BUCKLES
P.O. BOX 771
POTEAU, OK 74953
COUNSEL FOR APPELLANT

JEFFREY C. SMITH
DISTRICT ATTORNEY

MIKE HUNTER
ATTORNEY GENERAL OF OKLAHOMA

JOE WATKINS
ASST. DISTRICT ATTORNEY

TESSA L. HENRY
ASST. ATTORNEY GENERAL
P.O. BOX 880
POTEAU, OK 74953

OPINION BY: LUMPKIN, J.

LEWIS, P.J.: Concur
KUEHN, V.P.J.: Concur
HUDSON, J.: Concur
ROWLAND, J.: Concur

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Footnotes:

1. 21 O.S.Supp.2004, § 1451
2. Mitchell v. State, 2018 OK CR 24, IT 11, 424 P.3d 677, 682.
3. Rutan U. State, 2009 OK CR 3, I 49, 202 P.3d 839, 849.
4. Logan v. State, 1972 OK CR 38, I 19, 493 P.2d 842, 845.
5. 21 O.S.2011, § 1451
6. State U. Davis, 2011 OK CR 22, IT 5, 260 P.3d 194, 195.
7. 15 O.S.2011, § 136.
8. Morrison U. State, 1990 OK CR 33, I 7, 792 P.2d 1189, 1192.
9. McNeely U. State, 2018 OK CR 18, I 9, 422 P.3d 1272, 1276.
10. Seabolt U. State, 2006 OK CR 50, 152 P.3d 235, 239.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1451 (2011) - Embezzlement
• Okla. Stat. tit. 15 § 136 (2011) - Statute of Frauds

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:

• Mitchell v. State, 2018 OK CR 24, I 11, 424 P.3d 677, 682.
• Rutan v. State, 2009 OK CR 3, I 49, 202 P.3d 839, 849.
• Logan v. State, 1972 OK CR 38, I 19, 493 P.2d 842, 845.
• State v. Davis, 2011 OK CR 22, I 5, 260 P.3d 194, 195.
• Morrison v. State, 1990 OK CR 33, I 7, 792 P.2d 1189, 1192.
• McNeely v. State, 2018 OK CR 18, I 9, 422 P.3d 1272, 1276.