After months, Kenneth Barry finally gets his stolen skid steer back Friday, but not before causing a stir at the courthouse, the sheriff’s office and a wrecking yard. (Staff photo)
Kenneth Barry was a victim of crime.
As such, Oklahoma law grants him certain rights.
He feels the McCurtain County criminal justice system not only failed to abide by that law, but that he was actually threatened by a deputy with violence and with criminal charges if he tried to retrieve his stolen property. Finally, he says, sheriff Kevin Clardy openly defied a judge’s court order.
This week, almost four months after it was first stolen, he did get his property back after prosecutors made some unusual moves to work around the sheriff’s apparent violation of a court order.
Barry hopes that his telling his story will help other victims of crime here, and that it causes those in the criminal justice system to reflect on what happened so that it doesn’t occur again.
Perhaps they already have.
“It’s a mess, it’s unfair and it shouldn’t have happened,” Assistant District Attorney Jeff Mixon told him last week.
Barry is a software engineer who lives south of Waco, Texas. He bought a Kubota skid steer for about $68,000 and financed it through Kubota. The papers he presented to law enforcement, the court and this newspaper clearly show his purchase and even the schedule of payments to be made.
He is not a rich guy and has five kids, so to help make those payments, he rents out the skid steer when he’s not using it himself.
In late June a customer did not return the skid steer and the trailer he rented. Barry had anticipated that possibility and had tracking devices hidden on both.
Here’s the rub: The trailer ended up near Pittsburg County (near McAlester), where it took Barry only a few hours to prove ownership and get it returned.
But in McCurtain County, where the skid steer went, it took him months plus hundreds of hours of his own efforts to get his stolen property returned, even after he located it himself.
That is despite the Oklahoma Victims Bill of Rights, written into state law, in which victims have the right “to have any stolen or other personal property expeditiously returned by law enforcement agencies when no longer needed as evidence. If feasible, all such property, except weapons, currency, contraband property subject to evidentiary analysis and property the ownership of which is disputed, shall be returned to the person.”
When the skid steer was not returned after being rented, Barry headed up to McCurtain County to retrieve it for the next customer to use.
A deputy’s sworn statement picks up the story from here.
Barry spoke to deputy Bruce Johnson and told him where the skid steer was, at a residence on SH 3.
The deputy saw a skid steer beyond a locked gate. He saw a license plate on another vehicle, ran the plate, and found the vehicle was registered to Aiden Nielson.
Johnson told Barry because the skid steer had been rented, he would have to go through the court system to get it back.
Later that day, deputy Chris Watson was assigned to a call of suspicious activity at the same address.
A neighbor told him Aiden Nielson was in Utah, and the neighbor noticed that a Kubota skid steer that had been behind a locked gate was now outside the fenced area, but the gate was still locked.
On the skid steer was a note. “The skid steer is mine. I’m getting my trailer to pick it up. Contact me for details.” The note had Barry’s name and contact information.
Watson contacted Nielson, who claimed to have a bill of sale for the machine. He said he had just purchased it a few days ago.
Watson told Barry that if he took the machine before it was determined who owned it, he could be charged with grand larceny.
That was in the investigator’s report. Barry claims Watson yelled at him for about two minutes and told him that if he set foot back in McCurtain County, he would arrested for a misdemeanor, and further, that if he touched the skid steer he would be arrested for felony theft.
When Barry returned to Texas, he filed a stolen property report with authorities there and provided them proof of ownership.
Those law enforcement officials called the McCurtain County Sheriff’s Office and said the skid steer had indeed been stolen.
In this county, a deputy then called Johnson’s Wrecker to have the machine picked up.
Neilson told the deputy he was contacting an attorney.
Take the attorney to jail?
It gets a little strange here.
According to the law enforcement report, attorney Will Blocker contacted the sheriff’s office in a way described as “forceful” by deputy Roy Whiteman and would not let Whiteman speak. Blocker then stated he did not want to sue the sheriff’s office, but he would if he had to.
“Blocker then went on to say he needed leverage and said bring me the machine; he would park his Corvette in front of it and we could take him to jail instead. Blocker continued his spiel even after the dispatch supervisor attempted to speak to him. The above conversation took place on a recorded line.”
Deputies contacted Smith Equipment to get an estimated value of the machine. Barry told deputies they were now illegally holding his machine because he had provided proof of ownership.
The report was sent to the DA’s office, where prosecutors filed charges of transporting stolen property into state and knowingly receiving or concealing stolen property against Adin Nielson, 31, of Haworth. This was on July 19.
Barry still needs his machine but the DA’s office keeps telling him it’s a civil matter and he’ll need to get an attorney to get his property back.
But Barry said he cannot afford an attorney, so he began researching the statutes himself and found that no, it is not a civil matter, and further, he learned the process of filing documents in the criminal case to get his property back.
On August 1, Barry filed an “Application for Return of Property” to the Nielson criminal case. He attached all the documents proving ownership. This has rarely, if ever, been done in stolen property cases here.
Incredibly, on Sept 25 he then obtained, from the man charged with the felonies, an “Affidavit of Non-ownership” saying Adin Nielson was not claiming any ownership interest in the skid steer. It’s likely this document has never been filed in a criminal case here, either.
Now the court was completely convinced.
On Oct. 4, Special District Judge Laurie Blevins filed an order, in all caps, “ORDER FOR RETURN OF PROPERTY.”
Barry was elated. His ordeal seemed to be over. But then he was thwarted one last time.
Sheriff defies court order?
The judge had ordered:
- That Barry was rightful owner of the skid steer currently in possession of the sheriff’s office.
- That the sheriff’s office “immediately” make it available to him “upon issuance of this order.”
- That Kenneth Barry shall NOT (all caps, boldface) be liable for any fees associated with the storage of the skid steer.
So still concerned about setting foot in McCurtain County, Barry contacted Johnson’s Wrecker to arrange for his equipment to be picked up.
Barry said Charlie Johnson’s office had called the sheriff, who said despite the court order, he refused to pay the impound fees, amounting to about $3,400.
“I called the sheriff, and he said he was not going to pay it…I’ve been in the wrecker business 55 years. If you want the skid steer, bring them 100 bills. If you ain’t going to bring $100 bills, it’s still costing you $25 a day.”
The call was being recorded.
Then Johnson said, “Looks like I got a skid steer to push up some trees.”
Johnson perhaps made these statements to the wrong person.
Barry’s tracking device was still on the skid steer. He noticed the piece of equipment was not in the fenced impoundment yard, but was actually parked at Johnson’s home. Barry did research on impoundment regulations in Oklahoma. The equipment couldn’t be stored on private property. It was a violation.
Barry called the Oklahoma Corporation Commission, then the Department of Public Safety, which had an inspector call Johnson, who explained that he had security concerns about the skid steer, and therefore wanted to keep it where he could keep an eye on it.
Technically he had broken the rules on storage, but the inspector understood the security concerns. Still, Johnson was not entitled to the storage fees if anyone called him on it, and he could lose his license if he stored equipment outside the fenced yard again.
But what was to be done about paying the impoundment fees since the sheriff refused to pay them?
Soon the state dropped the felony charges. A deal had been reached for Nielson to pay the wrecker company, which he did.
Assistant D.A. Mixon wrote: “State of Oklahoma moved the Court for an order dismissing, without costs, the above-captioned case for the following reason: arrangements have been made that will enable the victim to recover the subject property.”
And Barry? He finally picked up his skid steer on Friday afternoon. He also called Nielson’s attorney to tell him how Nielson might get part of his money back.
Johnson had not legally stored the skid steer, he said. The storage fees were $2,400 of that $3,400 total, so if the attorney filed a complaint, Johnson would likely have to refund that $2,400 of the money Nielson had paid.
Barry provided Nielson’s attorney with all the evidence he would need.
Then, after posing for a photo and saying good-bye to the newspaper staff, Barry headed back to Texas… where he works in the security area of computer software engineering.
He has also worked at a lawyer’s office before, he says.
