Obtaining property by false pretenses is a serious crime in North Carolina, punishable as a felony and for which you can serve years in prison. If you have been charged with obtaining property by false pretenses, an experienced defense lawyer can help you navigate the legal requirements of this crime and determine how the law applies to the facts of your case. Call Mr. Rosensteel so that he can begin examining your case and determine the best course of action for you as soon as possible.
North Carolina law makes it a crime for a person to obtain something of value from another person by means of any kind of false pretense. For a person to be guilty of obtaining property by false pretenses, the following elements must be proven:
- the defendant made a representation to another.
- this representation was false.
- this representation was calculated and intended to deceive.
- the victim was in fact deceived by this representation.
- the defendant thereby obtained or attempted to obtain property from the victim.
If the value of the thing obtained is $100,000 or more, the person is guilty of a Class C felony. A person who commits a Class C felony must be sentenced to punishment between 44 and 182 months, depending on prior convictions, and this punishment must be active jail time.
If the value of the thing obtained is less than $100,000, the person is guilty of a Class H felony. A person who commits a Class H felony must be sentenced to punishment between four and 25 months, depending on prior convictions. A person with no prior convictions may receive community or intermediate punishment, such as probation. However, any person who commits a Class H may receive active jail time as punishment.
For a person to violate the false pretenses statute, he must act knowingly and with “intent to cheat or defraud.” A person’s intent is very difficult to prove by direct evidence, and usually circumstantial evidence must be used. When considering circumstantial evidence, the acts and conduct of the defendant and the general circumstances existing at the time of the charged offense may be considered.
It is important to note that the false pretenses statute provides that “[e]vidence of nonfulfillment of a contract obligation standing alone shall not establish the essential element of intent to defraud.” North Carolina courts have explained that just because a person is inept or fails to diligently pursue the fulfillment of a promise does not mean that he made the promise without the present intention of complying with it.
Obtaining Something of Value
A person must obtain something of value to violate the statute. The statute defines value broadly as “any money, goods, property, services, chose in action, or other thing of value.” North Carolina courts have held that something of value includes the sole access to funds of an entity which a person does not have authorization to use.
Furthermore, there must be a causal relationship between the false representation and the obtaining of the something of value. Where there is no evidence that the false representation was the means by which a person obtained the something of value, it is arguable that the person did not violate the false pretenses statute.
Distinguished from Embezzlement
It might be difficult to decide whether facts support a charge of embezzlement or obtaining property by false pretenses. It is important to remember that in embezzlement, a person lawfully obtains possession of the property but then unlawfully converts the property to his own use. However, in obtaining property by false pretenses, the person never had lawful possession of the property. Rather, it was unlawfully acquired by false pretenses. Because “property cannot be obtained simultaneously pursuant to both lawful and unlawful means, guilt of either embezzlement or false pretenses necessarily excludes guilt of the other.”
Possessing or Manufacturing Fraudulent Identifications
In North Carolina, it is also a crime to possess or manufacture fraudulent identifications for the purpose of “deception, fraud, or other criminal conduct.” For a person to be guilty of possessing or manufacturing a fraudulent form of identification, the following elements must be proven:
- the defendant knowingly possessed or manufactured a false or fraudulent form of identification.
- the defendant possessed or manufactured the false or fraudulent identification form for the purpose of deception, fraud, or other criminal conduct.
In addition, it is unlawful for a person to obtain an identification by using false, fictitious or fraudulent information.
Under the statute, an identification includes any of the following or a replica of any of the following:
- An identification card containing a picture, issued by any department, agency, or subdivision of the State of North Carolina, the federal government, or any other state.
- A military identification card containing a picture.
- A passport.
- An alien registration card containing a picture.
A person found guilty of obtaining, possessing or manufacturing fraudulent identifications is guilty of a Class 1 misdemeanor. North Carolina law provides that a person who commits a Class 1 misdemeanor must receive a sentence between 1 and 120 days, depending on the person’s prior convictions. A person with no prior convictions must receive a community punishment, but the court is permitted to sentence a person with prior convictions to active jail time.
If you have been charged with obtaining property by false pretenses, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.