Marton v. State, F-88-104

• Decision Date: 03 April 1991
• Docket Number: No. F-88-104,F-88-104
• Citation: 809 P.2d 671
• Parties: Carol E. MARTON, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 671

809 P.2d 671

Carol E. MARTON, Appellant, v. STATE of Oklahoma, Appellee.

No. F-88-104.

Court of Criminal Appeals of Oklahoma.

April 3, 1991.

An Appeal from the District Court of Payne County; Charles Headrick, Associate District Judge.

Carol E. Marton. Appellant, was tried by jury and convicted of four (4) counts of Embezzlement by an Officer in violation of 21 O.S.1981, § 341, in the District Court of Payne County, Case No. CRF-86-265. The jury recommended punishment of fifteen (15) years imprisonment and a five hundred dollar ($500.00) fine on each count. The trial court sentenced accordingly, ordering the sentences to be served concurrently. It is from this judgment and sentence which Appellant appeals. AFFIRMED.

Lisbeth L. McCarty, Asst. Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., A. Diane Hammons, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

LUMPKIN, Vice-Presiding Judge:

Appellant Carol E. Marton was tried by jury and convicted of four (4) counts of Embezzlement by an Officer in violation of 21 O.S.1981, § 341, in the District Court of Payne County, Case No. CRF-86-265. The jury recommended punishment of fifteen (15) years imprisonment and a five hundred dollar ($500.00) fine on each count. The trial court sentenced accordingly, ordering the sentences to be served concurrently. It is from this judgment and sentence which Appellant appeals. We affirm.

An audit conducted by the Motor Vehicle Division of the Oklahoma Tax Commission on November 12, 1985, showed that Appellant's Stillwater Tag Agency owed the Tax Commission $75,234.38. Another audit conducted on November 25, 1985, revealed $147,000.00 was due to the Tax Commission. The final audit showed that Appellant had failed to pay the Tax Commission $171,664.54. (Tr. 86-92)

Appellant testified in her own defense that she was not properly instructed on the deposit procedures and that she felt the figures revealed in the audits were wrong. Further pertinent facts will be set forth as necessary.

In her first assignment of error, Appellant contends that she was denied equal protection of the law as a result of having been denied a transcript of the preliminary hearing at State expense prior to trial. Both the State and the Appellant correctly note that it is a denial of equal protection to refuse an indigent a free copy of the transcript of a preliminary hearing. Roberts v. LaVallee, 389 U.S. 40, 42, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); McMillion v. State, 742 P.2d 1158, 1160 (Okl.Cr.1987); Wilson v. State, 701 P.2d 1040, 1041 (Okl.Cr.1985). However, in the present case, Appellant failed to make the necessary showing of indigency prior to trial.

The record reflects that Appellant appeared on January 9, 1987, before Judge Headrick, and orally requested a copy of the preliminary hearing transcript at State expense. The preliminary hearing had been conducted on December 12, 1986. The record indicates that the same oral motion had been previously denied by Judge Belden at the conclusion of the preliminary hearing. In support of her motion, Appellant argued that she was currently unemployed and without funds to pay for the transcript. She explained that she had certain assets which were encumbered by either mortgages or liens which prevented her from liquidating any of the assets in order to pay for the transcript. Appellant did not accompany either of her oral requests with a written request or an affidavit of poverty.

In Cook v. State, 487 P.2d 1373, 1375-76 (Okl.Cr.1971), this Court stated that absent some specific showing of indigency by affidavit or testimony, this Court cannot speculate that the defendant was, in fact, without funds, even though it appears that his lawyer is court appointed. In Jones v. State, 488 P.2d 593, 594-595 (Okl.Cr.1971), we held that a defendant seeking a transcript of a preliminary hearing at public expense must timely file a written request for such, together with an affidavit of poverty. See also Hall v. State, 570 P.2d 955, 959 (Okl.Cr.1977); Brinlee v. State, 543 P.2d 744, 747 (Okl.Cr.1976); Morgan v. Graham, 497 P.2d 464 (Okl.Cr.1972).

In Penny v. State ex rel. Edmiston, 547 P.2d 983 (Okl.Cr.1976), addressing a request for a transcript at State expense in order to perfect an appeal of a conviction, we stated that "one's financial ability to pay for a transcript is a prerequisite determination for the granting of a transcript at public expense and must be made on a case by case basis." 547 P.2d at 984. We reviewed the decision of the lower court in light of whether the defendant had presented sufficient evidence to establish a reasonable basis to support his averment that he had not the means to pay for the transcript sought. Id.

We find this analysis applies as well to the denial of a preliminary hearing transcript at State expense. See Bruner v. State ex rel. District Court, Oklahoma County, 581 P.2d 1314, 1316 (Okl.Cr.1978). Here, Appellant failed to make a specific showing that she was indigent, offering only general references to her financial condition without any factual support. The record indicates that Appellant hired her own legal counsel and posted a ten thousand dollar bond ($10,000.00). She was given an opportunity to have an evidentiary hearing prior to formal arraignment to determine whether she was entitled to a free copy of the transcript, but refused ¹. From the information provided by Appellant, we cannot find a reasonable basis exists for her allegation that she was without funds to pay for the transcript prior to trial. Appellant directs this Court's attention to McMillion v. State, 742 P.2d 1158 (Okl.Cr.1987), wherein we did reverse the conviction because the defendant was denied a copy of the preliminary hearing transcript at State expense. However, that case is distinguishable from the present case as defendant McMillion filed all of the requisite instruments necessary to qualify him as an indigent. Accordingly, this assignment of error is denied.

In her second assignment of error, Appellant alleges she was denied effective assistance of counsel by trial counsel's failure to request a jury instruction on the lesser included offense of diversion of State funds pursuant to 21 O.S.1981, § 1463.

Appellant was charged under 21 O.S.1981, § 341, Embezzlement by an Officer. This section provides in pertinent part:

Every public officer of the state or any county, city, town, or member or officer of the Legislature, and every deputy or clerk of any such officer and every other person receiving any money or other thing of value on behalf of or for account of this state or any department of the government of this state of any bureau or fund created by law and in which this state or the people thereof, are directly or indirectly interested, who either:

Fifth: Willfully omits or refuses to pay over to the state, city, town, district or county,.... any money or interest, profit or prerequisites arising therefrom, received by him under any duty imposed by law so to pay over the same, shall upon conviction thereof be deemed guilty of a felony and shall be punished by a fine not to exceed five hundred dollars ($500.00) and by imprisonment in the penitentiary for a term of not less than one (1) nor more than twenty (20) years, and in addition thereto shall be disqualified to hold office in this state. ...

While Section 1463 provides:

Any state officer, deputy or employee of such state officer, who shall divert any money appropriated by law for the purpose and object of such appropriation, shall be deemed guilty of a felony and upon conviction thereof shall be punished by imprisonment in the State Penitentiary for a period of not less than one (1) year nor more than ten (10) years.

No authority is provided by either Appellant or the State to show that this Court has previously held Section 1463 to be a lesser included offense of Section 341. However, both parties direct this Court's attention to Williams v. State, 447 P.2d 456 (Okl.Cr.1968).

In Williams the defendant, who had been the administrator of the Tillman County Memorial Hospital, was convicted of embezzlement; however, the opinion does not specify under which of the embezzlement statutes the defendant was charged. In his third proposition of error, the defendant alleged that the trial court should have instructed the jury under the lesser included offense of diversion of public funds under 21 O.S.1961, § 1463. This Court found that the defendant had waived consideration of the issue as he failed to object to the court's instructions and failed to offer any written requested instructions of his own. Reviewing the allegation for fundamental error only, this Court found the exclusion of the instruction not to be fundamental error. Therefore, Williams is not dispositive of the issue in the present case.

Embezzlement is defined by statute as the fraudulent appropriation of property by a person to whom it has been entrusted. 21 O.S.1981, § 1451. Oklahoma has five distinct statutes under which a person may be charged with the crime of embezzlement. The class of persons enumerated, the kind of property covered and the punishment provided for the particular unlawful taking must be gathered from the language of the statute itself.

Section 341 has been interpreted by this Court on few occasions. In Lyon v. State, 68 Okl.Cr. 396, 100 P.2d 287, 289 (Okl.Cr.1940), we held that Section 341 is a special statute and under its terms one is not charged with a misappropriation of any particular item or fund, but may be charged with the misappropriation of any and all funds in violation of his trust as a public officer. Further, under this statute the law infers that property of which the officer does not account has been appropriated to his own use and benefit, relying on State v. Duerksen, 8 Okl.Cr. 601, 129 P. 881 (1913).

In Abernathy v. State, 69 Okl.Cr. 142, 101 P.2d 634, 640 (Okl.Cr.1940),...