Allison v. State
| Decision Date | 13 December 1983 |
| Docket Number | No. F-82-684,F-82-684 |
| Citation | 675 P.2d 142,1983 OK CR 169 |
| Parties | 15 Ed. Law Rep. 980 J.R. ALLISON, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
J.R. Allison, appellant, was convicted of two counts of Embezzlement in the District Court of Comanche County, Case No. CRF-80-511. He was sentenced to three years' imprisonment for count IV of the information; and to three years' suspended sentence for count I of the information, said sentence to run consecutive to the sentence imposed for count IV; and was further ordered to pay $5,000 restitution to Cameron University for count I. From said judgments and sentences he appeals. Count I is REVERSED, and count IV is AFFIRMED.
D.C. Thomas, C. Merle Gile, Oklahoma City, for appellant.
Michael C. Turpen, Atty. Gen., John O. Walton, Asst. Atty. Gen., Oklahoma City, for appellee.
J.R. Allison, the appellant in this case, was employed as the Director of Food Services for Cameron University in Lawton, Oklahoma from 1970 until 1977. He was charged by information with four counts of embezzlement of Cameron University and Oklahoma state funds, services and goods, on September 23, 1980. The embezzlement allegedly occurred between 1971 and 1975.
Of the four counts, the appellant was convicted of two: count one (I), which charged him with the embezzlement of the services of a Cameron University Food Services employee, in the amount of approximately $5,000; and count four (IV), embezzlement of Cameron University Food Services Catering Funds, in the approximate amount of $4,000. He was sentenced to a term of three years' imprisonment on count IV; three years' suspended sentence to run consecutive to the sentence imposed for count IV on count I; and was further ordered to pay $5,000 restitution to Cameron University on count I. He has perfected a timely appeal to this Court.
Due to the fact that the appellant was acquitted of the charges made in counts II and III, we shall not discuss the facts adduced at trial in support thereof, except as becomes necessary in disposition of the appellant's assignments of error.
In support of count I of the information, numerous witnesses who were employees of the Cameron University Food Services Department between 1971 and 1975, including the person whose services were embezzled, testified that the appellant, as Director of Food Services, was charged with overseeing the activities and labor of all food service employees; that in his position as Food Services Director, the appellant hired Aggie McIntosh as a food services employee under the title "salad cook"; that Ms. McIntosh clocked her daily time in and out at the cafeteria at Cameron in the Food Services Division; that Ms. McIntosh's check was drawn by the State of Oklahoma; and that Ms. McIntosh never performed work at the Cameron University Cafeteria, but instead spent all her time performing household work, laundry and other maid services two days per week for the appellant. 1
Evidence adduced in support of count IV was that the appellant was instrumental in initiating and establishing a catering service at Cameron University; that from 1971 until 1973, he had sole control and responsibility for organizing, coordinating and collecting the proceeds from the catering functions; that he often told those to whom the Cameron Food Services had catered to pay him in cash or to make checks payable to him personally; that the appellant either received these payments personally, or had them mailed to a post office box to which he had the only key; that the catering service catered anywhere from two to four functions per week, nine months out of the year; that the appellant turned in very few invoices to the Cameron Food Services Department; that in April 1973 a bookkeeper/secretary became suspicious that the appellant was embezzling the catering money and so informed the Cameron University business manager, Mr. Ed Meese; that Mr. Meese contacted the appellant concerning the matter and arranged an appointment to discuss it with him; that the appellant ordered his bookkeeper/secretary to bring to his office all the copies of invoices, bills and papers concerning the catering services that she had; that the same bookkeeper/secretary saw the appellant leaving with a trash bag containing paper approximately thirty minutes after she had delivered the requested documents to him; that the appellant dumped a plastic trash bag containing the requested documents into his garbage can outside his home; that the bookkeeper/secretary who had become suspicious of the appellant retrieved the bag and its contents from the appellant's garbage can; that three bookkeepers/secretaries went through the invoices and totalled the amount of the invoices and the totalled amount was approximately $4,000; that these invoices were turned over to Mr. Meese; that Mr. Meese directed a bookkeeper/secretary to take the invoices to the cashier's office and match them with receipts for money paid to Cameron; that no such receipts could be found; that Dr. Don Owens, the President of Cameron University at that time was also made aware of the appellant's activities; that the appellant was required by Dr. Owens to begin making restitution to the University; that changes were instituted in the handling of the catering funds, which removed them from the appellant's sole control; that Mr. Meese died in 1974; that, upon Mr. Meese's death, Dr. Owens inquired of the appellant as to whether the appellant felt he had sufficiently reimbursed the University, and upon the appellant's affirmative answer, gave the invoices described above to the appellant; that the appellant burned them in his fireplace; and that the appellant made no further restitution.
Although most of the invoices concerning the catering activities during the period from 1971 until 1973 were destroyed by the appellant, the State produced an invoice for catering functions by Cameron University, charged to "Ducks Unlimited," dated October 9, 1972. The invoice was written in the appellant's handwriting, and was for the amount of three-hundred twenty-one dollars ($321.00). The State also produced two checks drawn by Ducks Unlimited, dated October 11, 1972. One check was payable to the order of appellant in the amount of one-hundred twenty-one dollars ($121.00). It had been endorsed on the back by the appellant. The other check was drawn payable to the order of "Cameron College Food Services" in the amount of two-hundred dollars ($200.00). That check was endorsed in the appellant's handwriting. The bookkeeper charged with receiving deposit receipts for food services testified that neither of the checks was deposited.
The appellant's first allegation of error is that the trial court erroneously overruled his motion to quash the information. He alleges the information contained four separate, distinct and independent crimes; which were improperly joined. 2
The appellant's argument is based upon 22 O.S.1981, § 404, which statute we have held to be repealed by implication by the enactment of 22 O.S.1981, §§ 436 and 440. State v. Lowe, 627 P.2d 442 (Okl.Cr.1981), and cases cited therein.
We are convinced the State was correct in joining all four counts against the appellant in the single information.
Title 22 O.S. § 436 expressly authorizes the joinder of counts against a defendant if the counts involve the same series of acts or transactions constituting an offense or offenses. Also, in a case similar to the present, this Court urged prosecutors to try as many embezzlement charges stemming from a single transaction or series of transactions as possible. See, DeLaune v. State, 569 P.2d 463 (Okl.Cr.1977).
In this case, it is apparent that much of the evidence presented in support of the different counts was to overlap. All four counts alleged occurred during the same period of time; were embezzled from the same institution; and involved the same entrustment. Nearly all the State's witnesses testified concerning each count of the information. A severance of the counts was not necessary in this case, and would have resulted in a considerable waste of judicial resources.
Since the appellant reurges the above argument in support of his eighth contention that the jury was improperly instructed; and presents no further argument or case authority, we deem our disposition of the first allegation dispositive of the eighth as well. There was no error.
The appellant maintains in his second assignment of error that the trial court erred in overruling his demurrer to the amended information. He argues that count I was demurrable because it failed to state the essential elements that the appellant's acts were committed while he was employed as the food services director of Cameron University; that he was entrusted with the labor of Aggie McIntosh due to his employment; and that due to this employment of trust, Ms. McIntosh's services were embezzled.
It is my view that, read as a whole, the information was sufficient.
Title 22 O.S.1981, § 409, p 6 provides that an information is sufficient if it can be understood therefrom;
[T]hat the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.
I also believe Gibson v. State, 328 P.2d 718 (Okl.Cr.1958), cited by the appellant and my colleagues, infra at p. ----, is not controlling. The defendant's conviction was reversed in Gibson because the solitary count in the information failed to allege his position of trust and employment. Thus, in Gibson, it was impossible to ascertain what was intended by the information. Such is not the present case.
Although I would affirm the...
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