State of Oklahoma v. Joshua Don Martin

Tulsa, Oklahoma, criminal defense lawyer represented the Defendant charged with embezzlement by an employee in violation of 21 O.S. 1451, which provides:

A. Embezzlement is the fraudulent appropriation of property of any person or legal entity, legally obtained, to any use or purpose not intended or authorized by its owner, or the secretion of the property with the fraudulent intent to appropriate it to such use or purpose, under any of the following circumstances:

1. Where the property was obtained by being entrusted to that person for a specific purpose, use, or disposition and shall include, but not be limited to, any funds "held in trust" for any purpose;

2. Where the property was obtained by virtue of a power of attorney being granted for the sale or transfer of the property;

3. Where the property is possessed or controlled for the use of another person;

4. Where the property is to be used for a public or benevolent purpose;

5. Where any person diverts any money appropriated by law from the purpose and object of the appropriation;

6. Where any person fails or refuses to pay over to the state, or appropriate authority, any tax or other monies collected in accordance with state law, and who appropriates the tax or monies to the use of that person, or to the use of any other person not entitled to the tax or monies;

7. Where the property is possessed for the purpose of transportation, without regard to whether packages containing the property have been broken;

8. Where any person removes crops from any leased or rented premises with the intent to deprive the owner or landlord interested in the land of any of the rent due from that land, or who fraudulently appropriates the rent to that person or any other person; or

9. Where the property is possessed or controlled by virtue of a lease or rental agreement, and the property is willfully or intentionally not returned within five (5) days after the expiration of the agreement or forty-eight (48) hours for heavy equipment.

Embezzlement does not require a distinct act of taking, but only a fraudulent appropriation, conversion or use of property.

B. Except as provided in subsection C of this section, embezzlement shall be punished as follows:

1. If the value of the property embezzled is less than One Thousand Dollars ($1,000.00), any person convicted shall be guilty of a misdemeanor punishable by a fine not exceeding One Thousand Dollars ($1,000.00), by imprisonment in the county jail for a term not to exceed one (1) year or, at the discretion of the court, by imprisonment in the county jail for one or more nights or weekends pursuant to Section 991a-2 of Title 22 of the Oklahoma Statutes, or by both such fine and imprisonment;

2. If the value of the property embezzled is One Thousand Dollars ($1,000.00) or more but less than Two Thousand Five Hundred Dollars ($2,500.00), any person convicted shall be guilty of a Class D3 felony offense punishable by imprisonment as provided for in subsections B through F of Section 20P of this title, shall be subject to a fine not exceeding Five Thousand Dollars ($5,000.00), and ordered to pay restitution to the victim as provided in Section 991f of Title 22 of the Oklahoma Statutes;

3. If the value of the property embezzled is Two Thousand Five Hundred Dollars ($2,500.00) or more but less than Fifteen Thousand Dollars ($15,000.00), any person convicted shall be guilty of a Class D1 felony offense punishable by imprisonment as provided for in subsections B through F of Section 20N of this title, shall be subject to a fine not exceeding Five Thousand Dollars ($5,000.00), and ordered to pay restitution to the victim as provided in Section 991f of Title 22 of the Oklahoma Statutes; or

4. If the value of the property embezzled is Fifteen Thousand Dollars ($15,000.00) or more, any person convicted shall be guilty of a Class C2 felony offense punishable by imprisonment as provided for in subsections B through F of Section 20M of this title, subject to a fine not exceeding Ten Thousand Dollars ($10,000.00), and ordered to pay restitution to the victim as provided in Section 991f of Title 22 of the Oklahoma Statutes.

For purposes of this subsection, a series of offenses may be aggregated into one offense when they are the result of the formulation of a plan or scheme or the setting up of a mechanism which, when put into operation, results in the taking or diversion of money or property on a recurring basis. When all acts result from a continuing course of conduct, they may be aggregated into one crime. Acts forming an integral part of the first taking which facilitate subsequent takings, or acts taken in preparation of several takings which facilitate subsequent takings, are relevant to determine the intent of the party to commit a continuing crime.

C. Any county or state officer, deputy or employee of such officer, who shall divert any money appropriated by law from the purpose and object of the appropriation shall, upon conviction, be guilty of a Class C2 felony offense punishable by imprisonment as provided for in subsections B through F of Section 20M of this title, and a fine equal to triple the amount of money so embezzled and ordered to pay restitution to the victim as provided in Section 991f of Title 22 of the Oklahoma Statutes. The fine shall operate as a judgment lien at law on all estate of the party so convicted and sentenced, and shall be enforced by execution or other process for the use of the person whose money or other funds or property were embezzled. In all cases the fine, so operating as a judgment lien, shall be released or entered as satisfied only by the person in interest.

D. Any executor, administrator, trustee, beneficiary or other person benefiting from, acting in a fiduciary capacity for, or otherwise administering a probate, intestate, or trust estate, whether the trust is inter vivos or testamentary, upon conviction of embezzlement from the estate shall not receive any portion, share, gift or otherwise benefit from the estate.

And

Unlawful Possession of controlled drug in violation of 63 O.S. 2-401, which provides:

A. Except as authorized by the Uniform Controlled Dangerous Substances Act, it shall be unlawful for any person:

1. To distribute, dispense, transport with intent to distribute or dispense, possess with intent to manufacture, distribute, or dispense, a controlled dangerous substance or to solicit the use of or use the services of a person less than eighteen (18) years of age to cultivate, distribute or dispense a controlled dangerous substance;

2. To create, distribute, transport with intent to distribute or dispense, or possess with intent to distribute, a counterfeit controlled dangerous substance; or

3. To distribute any imitation controlled substance as defined by Section 2-101 of this title, except when authorized by the Food and Drug Administration of the United States Department of Health and Human Services.

B. Any person who violates the provisions of this section with respect to:

1. A substance classified in Schedule I or II, except for marijuana, upon conviction, shall be guilty of transporting or possessing with an intent to distribute a controlled dangerous substance, a Class C2 felony offense, and shall be sentenced to a term of imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes, and a fine not more than One Hundred Thousand Dollars ($100,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment. A second conviction for the violation of provisions of this paragraph is a Class C2 felony offense punishable by a term of imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes. A third or subsequent conviction for the violation of the provisions of this paragraph is a Class C2 felony offense punishable by a term of imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes;

2. Any other controlled dangerous substance classified in Schedule III, IV, V or marijuana, upon conviction, shall be guilty of a Class D1 felony offense and shall be sentenced to a term of imprisonment as provided for in subsections B through F of Section 20N of Title 21 of the Oklahoma Statutes and a fine not more than Twenty Thousand Dollars ($20,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment. A second conviction for the violation of the provisions of this paragraph is a Class D1 felony offense punishable by a term of imprisonment as provided for in subsections B through F of Section 20N of Title 21 of the Oklahoma Statutes. A third or subsequent conviction for the violation of the provisions of this paragraph is a Class D1 felony offense punishable by a term of imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes; or

3. An imitation controlled substance as defined by Section 2-101 of this title, upon conviction, shall be guilty of a misdemeanor and shall be sentenced to a term of imprisonment in the county jail for a period not more than one (1) year and a fine not more than One Thousand Dollars ($1,000.00). A person convicted of a second violation of the provisions of this paragraph shall be guilty of a Class D2 felony offense and shall be sentenced to a term of imprisonment as provided for in subsections B through F of Section 20O of Title 21 of the Oklahoma Statutes, and a fine not more than Five Thousand Dollars ($5,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.

C. 1. Except when authorized by the Food and Drug Administration of the United States Department of Health and Human Services, it shall be unlawful for any person to manufacture or distribute a controlled substance or synthetic controlled substance.

2. Any person convicted of violating the provisions of paragraph 1 of this subsection with respect to distributing a controlled substance is guilty of a Class C2 felony offense and shall be punished by imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes, and a fine not more than Twenty-five Thousand Dollars ($25,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.

3. A second conviction for the violation of the provisions of paragraph 1 of this subsection with respect to distributing a controlled substance is a Class C2 felony offense punishable by imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes. A third or subsequent conviction for the violation of the provisions of this paragraph is a Class C2 felony offense punishable by imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes.

4. Any person convicted of violating the provisions of paragraph 1 of this subsection with respect to manufacturing a controlled substance is guilty of a Class C2 felony offense and shall be punished by imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes, and a fine not more than Twenty-five Thousand Dollars ($25,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.

5. A second conviction for the violation of the provisions of paragraph 1 of this subsection with respect to manufacturing a controlled substance is a Class C2 felony offense punishable by imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes. A third or subsequent conviction for the violation of the provisions of this paragraph is a Class C2 felony offense punishable by imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes.

D. Convictions for violations of the provisions of this section shall be subject to the statutory provisions for suspended or deferred sentences, or probation as provided in Section 991a of Title 22 of the Oklahoma Statutes.

E. Any person who is at least eighteen (18) years of age and who violates the provisions of this section by using or soliciting the use of services of a person less than eighteen (18) years of age to distribute, dispense, transport with intent to distribute or dispense or cultivate a controlled dangerous substance or by distributing a controlled dangerous substance to a person under eighteen (18) years of age, or in the presence of a person under twelve (12) years of age, is guilty of a Class C1 felony offense punishable by:

1. For a first violation of this subsection, a term of imprisonment in the custody of the Department of Corrections not less than two (2) years nor more than ten (10) years;

2. For a second violation of this subsection, a term of imprisonment in the custody of the Department of Corrections for not less than four (4) years nor more than twenty (20) years; or

3. For a third or subsequent violation of this subsection, a term of imprisonment in the custody of the Department of Corrections for not less than ten (10) years nor more than life.

F. Any person who violates any provision of this section by transporting with intent to distribute or dispense, distributing or possessing with intent to distribute a controlled dangerous substance to a person, or violation of subsection G of this section, in or on, or within two thousand (2,000) feet of the real property comprising a public or private elementary or secondary school, public vocational school, public or private college or university, or other institution of higher education, recreation center or public park, including a state park or recreation area, public housing project, or child care facility as defined by Section 402 of Title 10 of the Oklahoma Statutes, shall be guilty of a Class C1 felony offense and shall be punished by:

1. For a first offense, a term of imprisonment as provided for in subsections B through E of Section 20L of Title 21 of the Oklahoma Statutes; or

2. For a second or subsequent violation of this section, a term of imprisonment as provided for in subsections B through E of Section 20L of Title 21 of the Oklahoma Statutes, or by the imposition of a fine, or by both, not exceeding thrice that authorized by the appropriate provision of this section. Convictions for second and subsequent violations of the provisions of this section shall not be subject to statutory provisions of suspended sentences, deferred sentences or probation.

G. 1. Except as authorized by the Uniform Controlled Dangerous Substances Act, it shall be unlawful for any person to manufacture or attempt to manufacture any controlled dangerous substance or possess any substance listed in Section 2-322 of this title or any substance containing any detectable amount of pseudoephedrine or its salts, optical isomers or salts of optical isomers, iodine or its salts, optical isomers or salts of optical isomers, hydriodic acid, sodium metal, lithium metal, anhydrous ammonia, phosphorus, or organic solvents with the intent to use that substance to manufacture a controlled dangerous substance.

2. Any person violating the provisions of this subsection with respect to the unlawful manufacturing or attempting to unlawfully manufacture any controlled dangerous substance, possessing any substance listed in this subsection or Section 2-322 of this title, or combining fentanyl with any other controlled dangerous substance, upon conviction, is guilty of a Class A2 felony offense and shall be punished by imprisonment in the custody of the Department of Corrections for not less than seven (7) years nor more than life and by a fine not less than Fifty Thousand Dollars ($50,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment. The possession of any amount of anhydrous ammonia in an unauthorized container shall be prima facie evidence of intent to use such substance to manufacture a controlled dangerous substance.

3. Any person violating the provisions of this subsection with respect to the unlawful manufacturing or attempting to unlawfully manufacture any controlled dangerous substance in the following amounts:

a. one (1) kilogram or more of a mixture or substance containing a detectable amount of heroin,

b. five (5) kilograms or more of a mixture or substance containing a detectable amount of:

(1) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed,

(2) cocaine, its salts, optical and geometric isomers, and salts of isomers,

(3) ecgonine, its derivatives, their salts, isomers, and salts of isomers, or

(4) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in divisions (1) through (3) of this subparagraph,

c. fifty (50) grams or more of a mixture or substance described in division (2) of subparagraph b of this paragraph which contains cocaine base,

d. one hundred (100) grams or more of phencyclidine (PCP) or one (1) kilogram or more of a mixture or substance containing a detectable amount of phencyclidine (PCP),

e. ten (10) grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD),

f. four hundred (400) grams or more of a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-pheylethy)-4-piperidinyl] propanamide or 100 grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide,

g. one thousand (1,000) kilograms or more of a mixture or substance containing a detectable amount of marijuana or one thousand (1,000) or more marijuana plants regardless of weight,

h. fifty (50) grams or more of methamphetamine, its salts, isomers, and salts of its isomers or five hundred (500) grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers, or

i. ten (10) grams or more of a mixture or substance containing a detectable amount of fentanyl, its analogs, or derivatives,

upon conviction, is guilty of aggravated manufacturing of a controlled dangerous substance, a Class A1 felony offense, punishable by imprisonment in the custody of the Department of Corrections for not less than twenty (20) years nor more than life and by a fine not less than Fifty Thousand Dollars ($50,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment. Any person convicted of a violation of the provisions of this paragraph shall be required to serve a minimum of eighty-five percent (85%) of the sentence received prior to becoming eligible for state correctional earned credits towards the completion of the sentence or eligible for parole.

4. Any sentence to the custody of the Department of Corrections for any violation of paragraph 3 of this subsection shall not be subject to statutory provisions for suspended sentences, deferred sentences, or probation. A person convicted of a second or subsequent violation of the provisions of paragraph 3 of this subsection shall be punished as a habitual offender pursuant to Section 51.1 of Title 21 of the Oklahoma Statutes and shall be required to serve a minimum of eighty-five percent (85%) of the sentence received prior to becoming eligible for state correctional earned credits or eligibility for parole.

5. Any person who has been convicted of manufacturing or attempting to manufacture methamphetamine pursuant to the provisions of this subsection and who, after such conviction, purchases or attempts to purchase, receive or otherwise acquire any product, mixture, or preparation containing any detectable quantity of base pseudoephedrine or ephedrine shall, upon conviction, be guilty of a Class B3 felony offense punishable by imprisonment in the custody of the Department of Corrections for a term in the range of twice the minimum term provided for in paragraph 2 of this subsection.

H. In any investigation or prosecution involving a fatal overdose, the presence of fentanyl, a fentanyl analogue, or any mixture or substance containing a detectable amount of fentanyl in the decedent's blood, tissue, or post-mortem toxicology shall constitute rebuttable prima facie evidence that fentanyl was the proximate cause of death.

I. Any person convicted of any offense described in the Uniform Controlled Dangerous Substances Act may, in addition to the fine imposed, be assessed an amount not to exceed ten percent (10%) of the fine imposed. Such assessment shall be paid into a revolving fund for enforcement of controlled dangerous substances created pursuant to Section 2-506 of this title.

J. Any person convicted of any offense described in this section shall, in addition to any fine imposed, pay a special assessment trauma-care fee of One Hundred Dollars ($100.00) to be deposited into the Trauma Care Assistance Revolving Fund created in Section 1-2530.9 of this title.

K. For purposes of this section, "public housing project" means any dwelling or accommodations operated as a state or federally subsidized multifamily housing project by any housing authority, nonprofit corporation or municipal developer or housing projects created pursuant to the Oklahoma Housing Authorities Act.

L. When a person is found guilty of a violation of the provisions of this section, the court shall order, in addition to any other penalty, the defendant to pay a one-hundred-dollar assessment to be deposited in the Drug Abuse Education and Treatment Revolving Fund created in Section 2-503.2 of this title, upon collection.

M. Any person convicted of a second or subsequent felony violation of the provisions of this section, except for paragraphs 1 and 2 of subsection B of this section, paragraphs 2, 3, 4 and 5 of subsection C of this section, paragraphs 1, 2, and 3 of subsection E of this section and paragraphs 1 and 2 of subsection F of this section, shall be punished as a habitual offender pursuant to Section 51.1 of Title 21 of the Oklahoma Statutes.

Reported by: Kent Morlan

JUDGE DAVID GUTEN: DEFENDANT PRESENT, NOT IN CUSTODY, REPRESENTED BY JASON LILE. STATE REPRESENTED BY SYDNEY CASEBOLT. COURT REPORTER: WAIVED. DEFENDANT SWORN IN OPEN COURT. DEFENDANT WAIVES JURY/NON JURY TRIAL, ENTERS A PLEA OF GUILTY. DEFENDANT SENTENCED AS FOLLOWS:

COUNT 1: DEFENDANT SENTENCED TO FOUR (4) YEARS IN THE DEPARTMENT OF CORRECTIONS - SUSPENDED AND UNDER THE SUPERVISION OF DOC- PROBATION AND PAROLE. DEFENDANT ASSESSED FINE IN THE AMOUNT OF $500.00, VICTIM'S COMPENSATION FUND IN THE AMOUNT OF $250.00, DA DRUG FUND $50.00, PLUS COSTS. RESTITUTION PER SCHEDULE. DRUG AND ALCOHOL ASSESSMENT AND FOLLOW ALL RECOMMENDATIONS.

COUNT 2: DEFENDANT SENTENCED TO ONE (1) YEAR IN THE TULSA COUNTY JAIL - SUSPENDED. DEFENDANT ASSESSED FINE IN THE AMOUNT OF $300.00, VICTIM'S COMPENSATION FUND IN THE AMOUNT OF $50.00, PLUS COSTS. OFFENDER SUBJECT TO OBN METHAMPHETAMINE REGISTRY.

BOTH COUNTS TO RUN CONCURRENT.

DEFENDANT ADVISED OF APPEAL RIGHTS. RULE 8 AND J&S ISSUED. BOND EXONERATED.