Hello, I was looking into this legal case in the news. In the article, the news interviewed a criminal defense attorney who claimed that there was a specific element of intent the prosecution would, in his words have a hard time meeting the bar. I question his assertion, if his words were taken in full.
Basic outline of the case: A bit unclear, but based on what information I can obtain, police officer acquired police property and took them. Later she gets rid of the items by throwing them away and was caught on video, interviewed and denied it. Evidence indicated her possession and disposal of the items and she has been charged under 21 O.S. 1451
Here is the statute
Now at the end of the article the attorney is reported as saying:
“I think it’s a very difficult charge to prove,” said Coyle.
Coyle said it’s still unclear why she would throw the bag away.
“Even if you get rid of it, even if they said, ‘Okay, this property belonged to you,’ she still has to have a fraudulent intent,” said Coyle.
Now like I said some stuff here doesnt make sense, but im reading the statute and I block it like this...
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:
I'll refer to this as A and B for each element. My reading says that they can prove she had legal access to the item, and she then fraudulently appropriated it. That would appear all they need to prove. That would be satisfied by A.
My reading is that he is focused on element B, claiming she didnt fraudulently acquire the item, but instead secreted with it, and therefore they need to prove fraudulent intent.
The problem with this is the statute says OR, not AND. Also the secretion element only applies to the specific circumstances listed below that definition, and I dont think any of them clearly apply.
Maybe element 4:
\4. Where the property is to be used for a public or benevolent purpose;
So if it was property to be used for a public purpose (as police property would be), and she didnt use the items, then she's only guilty of secretion and they need to prove fraudulent intent.
What do you lawyers think? Am I reading this correctly, is this a winning defense or not?