Embezzlement

F-2017-336

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In OCCA case No. F-2017-336, Bea Ann Epperson appealed her conviction for two counts of Embezzlement of Building Trust. In an unpublished decision, the court decided to reverse her convictions and remand the case with instructions to dismiss. One judge dissented. Bea Ann Epperson was found guilty in a trial without a jury for embezzling money related to a building trust. She was sentenced to five years in prison for each count, but her sentences were suspended, meaning she wouldn’t serve time unless she violated certain conditions. Epperson believed that the court did not have the right to try her case because she is a member of the Cherokee Nation, and the victims might be part of the Creek Nation, with the crimes happening on Creek Reservation land. This argument was connected to a U.S. Supreme Court decision called McGirt v. Oklahoma, which deals with whether certain areas are considered Indian Country. The questions involved were Epperson's Indian status, the status of the victims, and the location of the crimes. Because these questions needed more fact-finding, the case was sent back to the District Court. At a hearing to gather more details, it was determined that Epperson had some Indian blood (3/64th degree) and was recognized as a member of the Cherokee Nation. It was also confirmed that the crimes took place within the boundaries of the Creek Reservation. The court accepted these agreements made by both sides regarding what the evidence would show. In a later brief, the State supported the District Court’s findings, but wanted time to consider whether to file new charges against Epperson. After reviewing everything, the court agreed Epperson had shown she was an Indian and that the crimes happened in Indian Country, thus the State of Oklahoma did not have the right to try her. The court reversed the judgment of Epperson's convictions and sent the case back to be dismissed, meaning she wouldn't face charges for the embezzlement anymore.

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F-2018-814

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Case No. F-2018-814** **MELINDA GAYLE HENRY,** Appellant, **v.** **THE STATE OF OKLAHOMA,** Appellee. --- **SUMMARY OPINION** **JOHN D. HADDEN, CLERK** **LUMPKIN, JUDGE:** Appellant, Melinda Gayle Henry, was convicted by jury of Embezzlement, in violation of 21 O.S.Supp.2012, § 1451, in the District Court of Nowata County Case Number CF-2016-71. The jury recommended a punishment of five years imprisonment and a fine of $10,000.00, which the trial court imposed. Appellant now appeals this judgment and sentence. **Propositions of Error:** 1. **Ineffective Assistance of Counsel:** Appellant contends trial counsel was ineffective for failing to secure necessary discovery. 2. **Failure to Request Continuance:** Appellant also asserts counsel was ineffective for not seeking a continuance for trial. 3. **Plain Error:** Lastly, Appellant claims the trial court committed plain error by proceeding to trial with unprepared counsel. **Analysis:** **Propositions One and Two (Ineffective Assistance of Counsel):** Under the Strickland v. Washington framework, Appellant must show (1) that counsel's performance was deficient and (2) that the deficiency prejudiced the defense. There is a strong presumption that counsel's conduct falls within a range of reasonable professional assistance. In Proposition One, Appellant argues that her counsel did not obtain critical records from the victim, The Woodshed convenience store, potentially impacting her defense. Counsel did request the records but believed they were destroyed. The trial court found that the State had offered access to the records, which the defense did not utilize. Appellant's assertion lacks evidence that obtaining these records would have changed the outcome of her trial; thus, this claim is speculative and fails to demonstrate prejudice. In Proposition Two, Appellant claims counsel was ineffective for not requesting a continuance due to the lack of records. However, the trial court's history with the case and previous findings suggested a request for a continuance would have been denied. Therefore, counsel would not be ineffective for abandoning a baseless motion. **Proposition Three (Plain Error):** Appellant's final claim of plain error regarding the trial being held without sufficient preparation fails under Rule 3.5(A)(5) of the Oklahoma Court of Criminal Appeals, which requires specific citations to the record. This assertion is superficial and unsubstantiated, leading to its waiver from appellate review. **Decision:** The judgment and sentence are **AFFIRMED**. **Mandate Ordered.** --- **APPEARANCES:** **AT TRIAL:** - **Mark Kane, Counsel for Appellant** - **Mike Hunter, Attorney General of Oklahoma; Kevin Buchanan, Assistant District Attorney for the State** **ON APPEAL:** - **Kevin D. Adams, Counsel for Appellant** - **Katherine R. Morelli, Assistant Attorney General for the State** **OPINION BY:** **LUMPKIN, J.** **LEWIS, P.J., KUEHN, V.P.J., HUDSON, J., ROWLAND, J.:** Concur in Result [Download Full Opinion PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-814_1735213396.pdf)

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F-2018-350

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In OCCA case No. F-2018-350, Jonathan Brent Buccino appealed his conviction for three counts of embezzlement. In an unpublished decision, the court decided to affirm the conviction. One judge dissented. Jonathan was found guilty in a trial where the judge decided the case without a jury. He was accused of taking money from an investment, which he was supposed to use for software development, but instead, he used the money for other purposes. The judge gave him five years in prison for each count, but these sentences were suspended, meaning he wouldn’t go to prison right away, if at all. During his appeal, Jonathan claimed that the evidence against him was not strong enough to prove he committed a crime. He argued that the only proof was what people said in their testimony, not any written documents. He believed that this meant the state did not meet its obligation to show he was guilty beyond a reasonable doubt. The court explained that when figuring out if there was enough evidence for a conviction, they look at it in a way that favors the state. This means they assume the evidence presented was correct and that the jury found the witnesses believable. Even if there were different opinions, the judge made the final call on what was credible. The court found that Jonathan was only allowed to use the invested money for software development, and the state showed he used it elsewhere, which was enough to prove he was guilty. In his second claim, Jonathan argued that the “Statute of Frauds” should have applied to his case. He thought that this statute meant any agreement needed to be in writing if it couldn’t be completed within a year, and since he didn’t have a written agreement, his case shouldn’t have been criminal. The court explained that embezzlement doesn’t need a contract, and whether or not there was a written agreement was not important. The crime was based on his actions, not on whether a written contract existed. The court also noted that the decision to bring a criminal case was the district attorney’s responsibility and that the evidence provided was enough to charge him with a crime, regardless of whether he might have been open to a civil case as well. In conclusion, the court affirmed Jonathan’s conviction, meaning they agreed with the original decision of the trial court.

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RE-2015-735

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In OCCA case No. RE-2015-735, Kathy Lynn Logan appealed her conviction for the revocation of her suspended sentences. In an unpublished decision, the court decided to reverse and remand the case. The court found that Logan was not given the proper opportunity to have a lawyer assist her during the revocation hearing, which is a requirement by law. The court noted that both Logan and the State agreed that the trial court did not properly check if Logan needed a lawyer, which meant she was denied her rights.

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C-2014-254

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In OCCA case No. C-2014-254, the petitioner appealed his conviction for embezzling over $25,000. In an unpublished decision, the court decided to affirm the trial court's ruling regarding the petitioner's motions, but vacated the restitution order and remanded the case for a new determination of the victim's loss. One judge dissented. The petitioner, who is William Reeves Cathey, was accused of embezzlement by the state. He pleaded guilty to the charge in 2012, and his sentencing was delayed multiple times so he could repay the money he took. When his sentencing finally took place in January 2014, he decided to represent himself after dismissing his lawyer due to their illness. The judge sentenced him to ten years in prison, but allowed him to suspend six years of that sentence and ordered him to pay $96,500 in restitution to the victim. Before he was sentenced, the petitioner made several requests to withdraw his guilty plea and to disqualify the District Attorney's office, claiming it was unfair. The court denied these requests. He also claimed that he did not understand the plea agreement because he thought the maximum fine would be much lower than what it was. He felt that the judge had not properly explained the charges to him when he entered his plea and claimed this made his plea involuntary. During the appeal process, the court looked at the petitioner's points. They decided that his concerns about the restitution order were valid. The court found that the lower court had not made it clear how the restitution amount was determined, and they thought that a new hearing was needed to sort this out. The court also rejected all of the petitioner's other arguments. They believed that he had entered his plea knowingly and that his sentence, while long, was not excessively severe. In conclusion, the court confirmed the denial of his motions to withdraw his plea but returned the issue of the restitution amount back to the trial court for further evaluation.

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F-2011-1054

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In OCCA case No. F-2011-1054, Michael Don Bryant appealed his conviction for Grand Larceny. In a published decision, the court decided to affirm Bryant's conviction and sentence but ordered that his Judgment and Sentence be corrected to accurately reflect the crime he was convicted of. One judge dissented. Michael Don Bryant had a trial by jury and was found guilty of Grand Larceny in Logan County. He was sentenced to one year in prison and had to pay a fine. After the trial, Bryant appealed, claiming a few mistakes happened during his trial. First, he said that the prosecutor made some unfair comments during closing arguments that hurt his chances of a fair trial. Bryant believed that the way the prosecutor spoke about his defense was wrong and led the jury to be biased against him. However, the court did not agree that these comments made the trial unfair. Second, he argued that a police officer gave evidence that should not have been allowed in the trial. The officer talked about the surveillance cameras and the cables that were involved in the case. Again, the court found that while the officer's comments might have seemed odd, they did not prove to be a big mistake in the trial. Lastly, Bryant pointed out that there was a problem with the official documents after his trial. The papers said he was convicted of embezzlement, but he was actually found guilty of Grand Larceny. Bryant wanted the court to fix this mistake and to make sure he got credit for time he had already served in jail. The court agreed that there was a mistake in the official documents and sent the case back to fix the paperwork. However, they kept Bryant's conviction and sentence the same.

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RE-2010-706

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In OCCA case No. RE-2010-706, Cynthia McGhee appealed her conviction for embezzlement and using a computer to defraud. In an unpublished decision, the court decided to reverse the order revoking three years of her suspended sentence. One judge dissented. Here is a brief summary of the case: Cynthia McGhee was originally sentenced in 2004 for embezzlement and related charges. She received a total of fifty years in prison, but twenty of those years were suspended, meaning she did not have to serve that time in prison as long as she followed certain rules. One of the rules was that she had to pay back a large amount of money, over $244,000, which she had taken in the embezzlement. In 2010, the state accused her of not paying the money she owed. A judge held a hearing to discuss this. McGhee admitted she did not pay the restitution but argued that it was not because she didn't want to, but because she couldn't afford to. The judge decided to revoke three years of her suspended sentence because McGhee failed to pay. On appeal, the court looked at whether the district judge made a mistake. The court found that McGhee had shown enough evidence to suggest that her inability to pay was not her fault. They explained that a person's probation should not be revoked for not paying money unless it is proven they could have paid it and chose not to. The original judge had not considered McGhee's ability to pay when making the decision. Therefore, the Court of Criminal Appeals decided that the revocation of McGhee's suspended sentence was an abuse of discretion, meaning the judge made a wrong choice. They reversed the decision and sent the case back for a new hearing to determine if McGhee could pay the restitution.

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F-2008-531

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In OCCA case No. F-2008-531, Jim Evans appealed his conviction for possession of a controlled drug and embezzlement. In an unpublished decision, the court decided to affirm his termination from Drug Court and vacate part of his sentence. One judge dissented. On November 29, 2006, Jim Evans pleaded guilty to two crimes: possession of a controlled drug after having a felony conviction, and embezzlement. The court sentenced him to five years for possession and one year for embezzlement, with both sentences running at the same time. He could avoid serving this time if he successfully completed a Drug Court program, but if he failed, he would have to serve his sentences. On May 22, 2008, Evans was taken out of the Drug Court program, leading to his appeal. He claimed three main issues: First, during his hearing, he wasn't properly confronted with a witness against him, and his lawyer let him say things that made him look guilty. Second, he thought the court made a mistake by considering evidence that shouldn’t have been allowed. Third, he argued the court couldn't extend his probation past his original sentence. About the first two points, Evans said his lawyer should have stopped the officer from speaking about what another person said. He contended this wasn't fair. The court examined his claims and found that the rights in Drug Court are not as extensive as in normal criminal trials. It noted that some statements made by the officer were acceptable under the law. For the last point, Evans pointed out that his one-year sentence had ended, and the court didn’t have the authority to give him more time. The State, which was appealing against him, admitted that it was a mistake to extend his probation beyond his original sentence. Ultimately, the court agreed with Evans on his last point and decided to change the records by vacating the one-year sentence for embezzlement. However, the court also confirmed the decision to remove Evans from the Drug Court program.

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F-2006-648

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In OCCA case No. F-2006-648, Cynthia Fern Izon appealed her conviction for embezzlement. In an unpublished decision, the court decided to affirm her conviction but modify her sentence. One judge dissented. Cynthia Fern Izon was accused of embezzling money while working as an officer, and a jury found her guilty. After the jury couldn't agree on her punishment, the judge decided that she should serve 40 years in prison. However, 15 of those years were suspended, meaning she would not have to serve them right away, and she was also fined $1,000 and told to pay back $81,000. Cynthia felt that her trial had several problems, and she raised many points during her appeal. First, she said she didn't get proper representation because she chose to represent herself without understanding the risks involved. However, the court found that she clearly stated her wish to represent herself, received help from a standby lawyer, and understood what she was doing. Cynthia also claimed misconduct by the prosecutors made her trial unfair, but the court ruled that these actions didn't deny her a fair trial. She argued that her sentence was too harsh, and the court agreed that there had been an error in how long she could be punished for embezzlement. The original laws meant her punishment should not exceed 10 years, and the court modified her sentence accordingly. Another point Cynthia made was about whether paying restitution would hurt her family financially. The court noted that the trial judge should have considered this but decided that the restitution order was still valid. In addition, Cynthia claimed she faced double punishment because of the restitution and prison time, but the court found this did not violate any laws. The court also mentioned that she was warned about not testifying on her behalf and said there was no evidence that stopped her from presenting evidence. Regarding her husband, who she believed might have lied on the stand, the court ruled that she didn't raise this issue properly during the trial, so it couldn't be revisited now. Cynthia argued that she was denied a speedy trial, but the court decided that the delays were largely due to her actions. While several of her claims were dismissed, the court did agree to lower her sentence to comply with the law regarding embezzlement. In the end, the court upheld Cynthia Fern Izon's conviction but changed her sentence to 10 years in prison, along with the fine and restitution.

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F 2005-659

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In OCCA case No. F 2005-659, Sundeep Kishore appealed his conviction for Conspiracy to Commit Murder and Embezzlement. In an unpublished decision, the court decided to affirm his convictions and sentences but vacated the order of restitution, sending it back to the district court for further determination. One judge dissented.

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F 2004-1238

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In OCCA case No. F 2004-1238, James Alan Wade appealed his conviction for Embezzlement of Rented Property. In an unpublished decision, the court decided to reverse the conviction and remand the case with instructions to dismiss. One judge dissented. Mr. Wade was found guilty by a jury of embezzling a rented car and was sentenced to twenty years in prison. He appealed this conviction, raising several arguments. He claimed there wasn't enough evidence to prove his prior felony convictions and that his sentence was too harsh. He also argued that his lawyer didn’t do enough to protect his rights during the trial. The court looked closely at whether there was enough proof that Mr. Wade had committed the crime he was accused of. One key point was whether the car he rented was valued correctly according to the law. The court found that the prosecution didn't provide evidence proving the car's value was over $1,000, which is necessary for the embezzlement charge. Because of this lack of evidence, the court decided that Mr. Wade should not have been convicted and ordered that the case be dismissed. The dissenting judge, however, thought that there was enough evidence for the jury to make their decision and believed the conviction should be upheld.

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