If you have been charged with the crime of embezzlement, you are facing a felony charge that can result in jail time. 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 as soon as possible.
The crime of embezzlement is a type of theft but is distinguished from larceny by the requirement that the person who did the taking was entrusted with the property taken. The person who embezzled had legal access to the property but did not have legal ownership of the property. In the crime of embezzlement, the person not only takes the property of another for an unlawful use but also violates the trust of the relationship with the victim.
The general embezzlement statute in North Carolina (G.S. 14-90) applies to any person who
- Exercises a public trust
- Holds a public office
- Is a guardian, administrator, executor, trustee, or any receiver, or any other fiduciary, including, but not limited to, a settlement agent
- Is an officer or agent of a corporation, or any agent, consignee, clerk, bailee or servant, except persons under the age of 16 years, of any person.
A person in one of these positions commits the crime of embezzlement when he
- embezzles or fraudulently or knowingly and willfully misapplies or converts to his own use another’s property, or
- takes, makes away with or secretes, with intent to embezzle or fraudulently or knowingly and willfully misapply or convert to his own use another’s property.
The statute also includes a list of types of property included under the statute, which includes money, goods or other chattels, bank note, check or money order, or any treasury warrant, treasury note, bond, or any other valuable security that belongs to another person or are closing funds.
To prove that a person has committed the crime of embezzlement, the following elements must be shown:
- the defendant was a fiduciary of the victim.
- while acting as the victim’s fiduciary, the defendant rightfully received the property.
- the defendant intentionally, fraudulently and dishonestly used the property for some purpose other than that for which he received it.
If the value of the property embezzled was $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 property embezzled was 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.
A person guilty of embezzlement must misappropriate property which he lawfully possesses. If his possession of the property is not lawful, then larceny, rather than embezzlement, is the appropriate crime.
Embezzlement From Certain Types of Entities Punished More Harshly
North Carolina law punishes people who embezzle from certain types of entities more severely in certain situations. A person who embezzles state or local government property or embezzles from a penal, religious, charitable or educational institution commits a Class C felony when the property is valued at $100,000 or more and a Class F felony when the property is valued at less than $100,000. (G.S. 14-91 and 14-92)
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. A person who commits a Class F felony must be sentenced to punishment between 10 and 41 months, depending on prior convictions. A person with no prior convictions may receive intermediate punishment, but any person convicted of a Class F felony may receive active jail time.
Distinguished from Larceny by Employee
The crime of larceny was created as a statutory counterpart to the common law crime of larceny. At common law, if an employee took property by trespass and against the employer’s will, he was guilty of larceny, a felony. However, if property came into the employee’s possession during the course of his employment and he later used that property for his own benefit, he was guilty of breach of trust, a misdemeanor. The distinction between these two crimes was that larceny required a trespass. Creating a statutory crime for embezzlement sought to create uniform results in cases where an employee came to possess property without a trespass.
In North Carolina, there are statutory provision for embezzlement by an employee (G.S. 14-90) and larceny by an employee (G.S. 14-74). Both crimes are punished at a Class C felony level for property valued at $100,000 or greater and at a Class H felony level for property valued at less than $100,000. Furthermore, both crimes require an employee to misappropriate property that he rightfully received, and they both serve to avoid the disparity in results created by the common law requirement of trespass for larceny. Often, the same facts could fit either charge, and many times, an employee could be charged under either statute.
If you have been charged with embezzlement, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.