02 Aug THE FELONY THAT THAT SHOULD HAVE NEVER BEEN
How a Washer Found its Way Into a Courtroom
Today there is not a structure of any kind that stands at 205 S. 6th Street in McAlester. Only an empty dirt pad, with patches of scraggly grass, marks the location where the building once stood. It was a one-story building, its entrance faced 6th Street, the exterior a dull gray stucco, with a sign over the door that announced its existence to all that may wander by, Color Tyme. Color Tyme is actually a national franchise chain that sold furniture, appliances, and electronics through a rental payment system. It’s a predatory business that exploits the poor and those with bad credit, by selling items at a massive markup spread over an endless term of monthly payments.
This particular franchise was locally owned and came to be known for their hilarious videos on social media that featured two store employees discussing what great deals they had at the time. The hilarity resulted from the visual of different store employees joined by the store manager, a very large man that wore bib overalls, Lynn Martin. The commercials were effective in how they advertised the low monthly payments one would have to make to own a luxurious big screen television, or a leather sectional. What the commercials never mentioned was that the items for sale were massively marked up.
Around the end of 2015 and beginning of 2016, the owners had decided to sell the business, but retained all of the delinquent accounts. It was around this time that criminal defense attorneys in Pittsburg County began to see an influx of people charged in the District Court with felony charges of Embezzlement of Rental Property. What was going on? Why was the District Attorney’s office so suddenly focused on filing these felony cases and trying to recover restitution payments for the same alleged victim? Many of these cases (like the one we are going to discuss) were first reported a year or before and charges were never filed at that time.
I was sitting in my office one afternoon when a gentleman walked into the building and asked if he could see an attorney. I was notified and invited him back to my office to chat. Mickal was a soft-spoken man, he appeared pleasantly normal, and the only thing I remember that stood out about him that day was his posture. His shoulders were slumped in a forward position, he wore a look of worry and to some degree embarrassment. He had just come from the courthouse he informed me, and with hesitation he went on to say that he had been at the courthouse, because he guessed he had “got himself in some trouble”. I waited for him to pull his gaze away from the floor between his feet, and when he did finally raise his eyes level to mine, I asked him to tell me his story.
Mickal told me that he and his family lived in Wilburton in 2013, when they found themselves in need of a washer. He went to Color Tyme and signed an agreement for a Whirlpool washer and made his bi-monthly payments on time. In March of 2014, Mickal and his family decided that they were going to move to Texas for other opportunities there. According to Mickal he contacted Color Tyme on multiple occasions to come and pick up the washer and discontinue their relationship, something he was able to do under the signed agreement. He called and called, but no one came. Rather than just leave the appliance behind, he decided to store it, there in Wilburton. After he moved he continued to contact Color Tyme, but still nobody from the company ever made arrangements to pick up the washer.
What Mickal didn’t know was that after he stopped making his payments, the company contacted the McAlester Police Department and made a report that Mickal had absconded with their property. That report was taken by Officer Bobby Coggin on June 6, 2014. Mickal and his family stayed in Texas for a while and then eventually moved back to Oklahoma and to his shock Mickal found out he was a wanted man.
On the 18th of February, 2016, nearly a year and a half after it was first reported, and closer in time to the sale of Color Tyme, The Pittsburg County District Attorney’s Office filed a felony Information accusing Mickal of the crime of Embezzlement of Rental Property. Mickal surrendered himself to the District Court and was released on a Personal Recognizance bond, the court entered a plea for him and he found his way to my office. Mickal disclosed that he had never been in trouble before and the prospect of being charged with a crime, and a felony at that, was scary thing.
When he finished I began to explain to him the felony process and what my representation, should he choose to hire me, would include. When I got to the part about my fee, I noticed his shoulders begin to slump again, and his gaze return to the piece of floor between his feet, that seemed almost to haunt him. We were both feeling very different emotions in that moment. Mickal was beginning to feel hopelessness, it was visually apparent from his reaction to my fee requirement, and I was beginning to swell with anger.
The man sitting in front of me did not belong here. He hadn’t committed a crime. I felt for him on two levels. First, he was a victim of some predatory appliance lending scheme, and second what reeked of an opportune enforcement of a murky law that smacked of political contributory kickback. This wasn’t the first, but a one of a slew of criminal complaints filed around the same time for the same alleged victim, that just happened to be shutting their doors and following up on open accounts that if paid would result in quite a bit of money.
“You still have that washer?”, I said.
Mickal instantly looked up and confirmed that in fact he did. “Okay,” I said, “here’s what I’m going to do”. I told him that I would make a deal with him and charge him and very small fee if he agreed to do something for me. He agreed that he would do anything I asked. I asked him to bring the washer to court when we had a hearing.
“You mean into the courthouse?”, he asked.
“That’s exactly what I mean,” I said.
We shook on it, and I entered as his attorney of record. I was able to set the matter for a preliminary hearing on September 6, 2016.
What occurred on September 6, 2016, has been told countless times in casual settings, a “war story” for the ages best told over a cold beer and worth more than a few laughs. While this story tends to be told for the comedic relief that it has, it was in fact a real case, with real ramifications, that were taken seriously. I used the opportunity that the facts and circumstances this case gave me to not only protect my client from being a victim of the system, but to also point out the flaws in that system. So, here’s how it went.
The hearing was set for 11:00 AM in front of Judge Tim Mills. A preliminary hearing is actually a right in Oklahoma guaranteed by the Oklahoma Constitution. If you are charged with a felony in Oklahoma the state is required to prove to a magistrate that probable cause exists as to each element of the crime, and that the defendant may be the person that committed the crime. It’s a low burden, but it is a burden none the less. Think of it this way: The government has to show the court that there is at least enough evidence here that a jury should decide ultimately what happened.
Mickal showed up at the office that morning about thirty minutes before his hearing was scheduled to begin. I walked outside to see that he did in fact stick to our agreement, and there in the back of his pickup truck sat a gleaming white Whirlpool washer. I went back into the office and returned with a bright red hand truck. Mickal got the washer out of the bed of the truck, secured it to the dolly and took off toward the courthouse. I instructed him on which courtroom to take it into and that I would be there shortly.
I walked into courtroom number 2, and there sitting just outside the well, was the Whirpool still strapped to the red dolly. I turned to look across the courtroom and saw my opponent, Christina Burns, I couldn’t help but smile, and took my seat.
The State called the Color Tyme manager, Lynn Martin to the stand. He had shown up to court without his trademark bib overalls but was still instantly recognizable to me. Mr. Martin testified that Mickal had filled out the agreement, he would continually refer to it as a “rental” agreement and had stopped making payments on the washer without any notice to the company. The state painted a picture of Mickal as an absconder, a derelict, an oath breaker. Color Tyme had been injured, and justice would only come in the form of a felony conviction, and of course financial restitution.
I waited patiently for my chance to cross-exam Mr. Martin. My first issue was with the washer itself. According to the state, and Color Tyme, the value of the washer was $739.99 on the day it was contracted for. This was in fact a Whirlpool brand washer, but the declared value was questionable at best. I pointed out that the exact same washer could be bought at a major retailer for half that price and asked for an explanation. Mr. Martin explained that the $739.99 figure was the “same day” price of the washer, meaning a customer could purchase the washer for that amount or choose a monthly financing option. If Mickal had paid every “low monthly payment”, when he had finished he would have shelled out over $1500.00.
At this point I called Mr. Martin’s attention to the large appliance sitting just outside the well of the courtroom.
“Is this the washer in question?” I asked.
Mr. Martin removed himself from the witness stand and examined the washer up close. When he was satisfied he returned to his seat and confirmed that it was indeed the washer.
“Good.” I said and approached the washer myself. “Your Honor, I’m going to mark this washer as Defendant’s Exhibit number 1.”
When Ms. Burns did not object, the court recognized the exhibit.
“So, this washer in particular began its life with a value of $739.99, but over the course of eighteen months actually gains in value to exceed $1500 dollars?” I asked.
Mr. Martin advised that that would be the case when you added up the financing payments. I began to point out that Color Tyme apparently had the unique ability to acquire and sell appliances and other products that actually gained in value verses depreciate like what occurs everywhere else in the world. Never one to miss an opportunity to point out the ridiculous, I said:
“So, let me get this straight. Over a year and a half ago this washer had accumulated a value of over $1500 dollars from its original value of $739.99 dollars. Now a significant time has passed, and I’m just curious Sir, what do you estimate this washer to be worth at present day. I mean I’m looking at what….a four thousand dollar washer?”
With that Judge Mills audibly laughed and the court reporter, Nancy Gibson, lowered her head in an attempt to stifle her own laughter.
I next moved on to the so called rental agreement itself. The only thing about this document that appeared to be a “rental agreement” was its title: RENTAL AGREEMENT. Everything else contained in this document, like the language, appeared to be a lease purchase agreement. Now there is an important reason that I attacked this document. The law in question applied embezzlement of RENTAL property. As I was able to point out, what Color Tyme was doing was leasing property and having customers sign lease agreements, which allowed them to take ownership of the property, but calling these “rental agreements” so that they could take shelter under the criminal statute. Therefore, instead of hiring an attorney and filing several civil claims, they could just go to the state and rely on the District Attorney’s office and do their collection for them.
Finally, there was the issue that my client had tried on multiple occasions to contact Color Tyme and return the washer. Unfortunately, that could not be confirmed by Mr. Martin, because if those records were actually kept, they would have been lost by now.
When the state announced that they had concluded their presentation of evidence I moved for a demurrer mostly on the point that this washer was the subject of a lease rather than “rental property”. A demurrer is a request to the court to find that the state has not even produced enough evidence to show a crime MAY have occurred. In this instance, Judge Mills agreed with me and granted my request dismissing the case.
Ms. Burns rose to her feet and announced that the state intended to appeal the court’s ruling. Judge Mills acknowledged the state’s announcement then turned his attention to me.
“Mr. Wagner do you wish to remove your exhibit?”
At the conclusion of a preliminary hearing the attorneys have the option to “remove” their exhibits and maintain (or hold on to) them. If the exhibits are not removed then they would stay with the record and the record is maintained by the court reporter. Essentially, Judge Mills was asking me to remove the washer.
“No, Your Honor.” I responded.
In that moment both the jaws of the Judge and Nancy dropped wide open. Nancy turned to Judge Mills and started shaking her head “no” emphatically.
“Well, Mr. Wagner if you don’t remove the washer, what are we going to do with it?” Judge Mills asked.
“Ask Ms. Burns. She’s the one that wants to appeal.” I said.
A wild discussion broke out among the Judge, Nancy, and Ms. Burns. Neither of the three wanted to take the washer and keep it in their office. I sat quietly, after all I knew the washer wasn’t coming home with me.
Finally Judge Mills spoke, “Ms. Burns, it is your intent to appeal, then you are going to take the washer to the DA’s office.”
“Yes, your Honor.” She said.
“Judge, there’s just one other thing.”
“Really Mr. Wagner, what’s the one other thing?” Judge Mills asked.
“That’s my dolly. It didn’t come with the washer.”
(The Pittsburg County District Attorney’s Office eventually chose not to pursue the appeal, and Judge Mills’ ruling led to the dismissal of many similar cases. It is believed that the washer still remains in the District Attorney’s Office to this day, but when asked they have never confirmed that to be true.)