State v. Love

Annotate this Case

State v. Love
1998 OK CR 32
960 P.2d 368
69 OBJ 1897
Case Number: S-97-976
Decided: 05/13/1998
STATE OF OKLAHOMA, Appellant -vs- CHARLES DAVID LOVE and MICHAEL SHAYNE HILBURN, Appellees
Oklahoma Court of Criminal Appeals

OPINION

STRUBHAR, V.P.J.:

[960 P.2d 36

¶1 Appellees, Charles David Love and Michael Shayne Hilburn, were indicted by the Multicounty Grand Jury. Hilburn was indicted on thirty-five counts of Embezzlement (21 O.S.1991,

¶2 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm. Venue is a question of law which requires the trial court to determine where the charged offense was committed. See Omalza v. State, 1995 OK CR 80, 911 P.2d 286, 295; Richie v. State, 1995 OK CR 67, 908 P.2d 268, 274, cert. denied, ___U.S.___, 117 S. Ct. 111, 136 L. Ed. 2d 64 (1996). In appeals prosecuted pursuant to 22 O.S.1991, § 1053, this Court reviews the trial court's decision to determine if the trial court abused its discretion. See State v. Gates, 1978 OK CR 31, 576 P.2d 313, 314; State v. Duke, 1977 OK CR 118, 561 P.2d 582, 585. An abuse of discretion has been defined as a conclusion or judgment that is clearly against the logic and effect of the facts presented. See Walker v. State, 1989 OK CR 65, 780 P.2d 1181, 1183.

¶3 The State cites Williams v. State, 1961 OK CR 111, 365 P.2d 569, in support of its proposition that venue is proper in Oklahoma County. In Williams, the Court held that in an embezzlement case where there was a duty to account in a specific county and there was a failure to account, venue should be laid in the county where the defendant was under obligation to account or in the county where the unlawful taking and conversion took place. Id. at 572. The record [960 P.2d 3

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY
THE HONORABLE WILLIAM R. BURKETT, DISTRICT JUDGE

Appellees, Charles David Love and Michael Shayne Hilburn, were indicted by the Multicounty Grand Jury. The cause was instituted in the District Court of Oklahoma County, Case No. CF-96-7493. The Honorable William R. Burkett, District Judge, ordered the cause dismissed for lack of venue and the State appealed. AFFIRMED.

APPEARANCES AT TRIAL

KENT SUTTON
ASSISTANT ATTORNEY GENERAL
OKLAHOMA CITY, OK 73102
ATTORNEY FOR THE STATE





DOUGLAS G. DRY
103-1/2 WEST MAIN
P.O. BOX 637
WILBURTON, OK 74578

WARREN GOTCHER
GOTCHER & BELOTE
209 E. WYANDOTTE
P.O. BOX 160
McALESTER, OK 74502
ATTORNEYS FOR APPELLEES

APPEARANCES ON APPEAL

O.R. BARRIS III
ASSISTANT ATTORNEY GENERAL
W.A. DREW EDMONDSON
ATTORNEY GENERAL
OF OKLAHOMA
440 S. HOUSTON, STE 605
TULSA, OK 74127
ATTORNEY FOR THE STATE

DOUGLAS G. DRY
103-1/2 WEST MAIN
P.O. BOX 637
WILBURTON, OK 74578

WARREN GOTCHER
GOTCHER & BELOTE
209 E. WYANDOTTE
P.O. BOX 160
McALESTER, OK 74502
ATTORNEYS FOR APPELLEES

OPINION BY: STRUBHAR, V.P.J.

RA

FOOTNOTES

1 We note that venue is proper in either Oklahoma or LeFlore Counties with respect to Counts 36 and 37 because these charges allege that Appellee Hilburn submitted false travel claims from LeFlore County to the D.A.'s Council in Oklahoma County and was directly reimbursed therefrom. 22 O.S.1991, § 124. However, we find the trial court did not abuse its discretion in dismissing these counts based on lack of venue because of interests of judicial economy.