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North Carolina Criminal Law 14-90: Embezzlement of Property by Virtue of Office or Employment

Definition and Elements of the Crime

Embezzlement Under North Carolina Criminal Law Chapter 14-90, the crime of embezzlement occurs when an individual, in a fiduciary capacity, rightfully receives property in his or her role (in the fiduciary capacity) and then intentionally, fraudulently and dishonestly uses it for some purpose other than that for which it was received.

Embezzlement is a felony charge in North Carolina.

To prove embezzlement, the State must be able to prove each and every element of the offense of Embezzlement to the legal standard of “Beyond a Reasonable Doubt.”

The first-facts or prima facie elements for Embezzlement include things like:

  1. The Defendant acted in name fiduciary capacity) of the victim
  2. While acting as the victim’s employee, trustee, fiduciary, etc., the Defendant rightfully received property and/or something of value belonging to the victim
  3. The Defendant intentionally, fraudulently and dishonestly used the property or item of value for some purpose other than that for the use/benefit of the victim or for which the Defendant received it

To commit embezzlement, the person entrusted with the property need not turn it to his or her own use. Improper use of entrusted property or the thing of value may be enough.

Embezzlement may also occur if the person turns it to someone else’s use. It also occurs if a person secretes (hides) the property with the intent to misapply it, even though the person never actually uses it.

The property can include money and paper securities but does not include services.

A business partner cannot be guilty of embezzlement of partnership funds but can be prosecuted for appropriating (misappropriating) partnership funds for personal use, gain, or benefit.

A person can only be charged if he or she exercises a public trust, holds a public office, or is a guardian, administrator, executor, trustee, receiver, fiduciary, officer, agent, consignee, clerk, bailee or servant of the victim.

The Defendant must have obtained the property by virtue of his or her position, i.e., the Defendant must be entrusted with it.

Embezzlement differs from Larceny by Employee. Embezzlement is the misuse or misapplication of the victim’s property to which the Defendant was entrusted.

Larceny generally involves taking the victim’s property without a fiduciary relationship between the victim and the person accused of the crime.

2. Examples
  1. Office Manager at ABC Insurance Company in Charlotte, N.C., acting within her normal duties on behalf of ABC Insurance, lawfully obtains client’s signature on a settlement check for a car accident. She thereafter deposits the check into her own, personal account, keeping the money for herself. The Officer Manager, the Defendant in the criminal charges, can be charged with embezzlement. While the Officer Manager for the insurance company lawfully came into possession of the check and was entrusted with care of the check by his client, the misuse of the funds amounts to Embezzlement.
  2. Employee goes into her boss’s office and steals a drill and some tools. Employee can be charged with larceny (most likely larceny by employee) but not embezzlement because Employee was not entrusted with the property by virtue of his or her position with the company.
  3. Employee works in an Iredell County Pawn Shop that has locations in both Mooresville and Statesville. Employee is responsible to accepting valued items on behalf of the Pawn Shop. While in the Statesville office, Employee receives on behalf of the Pawn Shop a Rolex watch with a market value of $10,000. Employee takes a picture of the Rolex and the serial number on the back of the watch, sending it to a bank as proof of collateral for a second mortgage on his personal home. The Rolex watch is never removed from the Pawn Shop and is never sold to pay the mortgage note. Employee can be charged with Embezzlement.
  4. Employee takes a corporate signature stamp without permission and writes unauthorized checks to pay credit card bills for a recent vacation to Wilmington, N.C., thereby misappropriating funds. Employee is not entrusted with the signature stamp. Employee is not responsible for managing accounts, paying bills, or signing documents on behalf of the Employer. The employee cannot be charged with embezzlement because the employee did not lawfully possess or control the misappropriated funds. Employee is not entrusted with an asset, property, or other item of value and does not act on behalf of the Employer. Employee can, however, be charged with Larceny by Employee and possibly forgery of a bank instrument.
3. Similar Offenses and Related Legal Issues4. Defenses to Embezzlement of Property by Virtue of Office or Employment

It is NOT a defense that the Defendant intended and was willing to return the property later, nor is a defense that the person accused of Embezzlement never transferred the ownership interest to another party (and/or themselves).

Defendant can show that the alleged property was not entrusted to them in the scope of their employment. Defendant can show they did not lawfully possess or control the alleged misappropriated funds, with the limitation that conversion of such property or thing of value may be the basis of another felony charge known as Larceny by Employee.

5. Penalties

Embezzlement may be classified as a Class C felony when involving property valued at $100,000 or more. For criminal charges involving a property value up to but not including $100,000, the NC Criminal Laws classify such embezzlement charges as a Class H Felony.

As a Class H felony, the punishment may include (depending on the calculated PRL Prior Record Level as determined pursuant to the Sentencing Guidelines) a maximum period of incarceration of 39 months in a state correctional facility in the custody of the North Carolina Department of Adult Corrections.

However, if the embezzled property is $100,000 or more the crime may be punishable as a Class C felony, which carries a maximum period of incarceration of 231 months in the NC DAC Department of Adult Corrections. Contact experienced legal counsel immediately to discuss felony sentencing in North Carolina.

6. Criminal Defense for Dispensing of a Controlled Substance Cases

Criminal Defense Embezzlement charges in North Carolina may take time to develop. Many employers seek to gather evidence of the crime before formally terminating or firing the employee.

That is true for law enforcement as well. It is not unusual for a detective to offer an Employee the, “Chance to come in, talk about what happened, help explain things, and make things right.”

Promises to “put in a good word with the Judge” or to “talk to the DA” are largely hollow promises, predicated on the concerted effort to obtain a confession.

We firmly believe that speaking with law enforcement, co-workers, or the employer about possible embezzlement charges, without first consulting with a defense lawyer, is a tremendous mistake.

Offering to return an item or “pay my boss back” may be deemed a confession or other admission of criminal liability. Even if that’s something you ultimately choose to do, it makes sense to first speak with a lawyer to determine your legal liability (exposure to punishments) and legal rights.

Returning the item of value or property, even without the knowledge of the Employer, likely is not a defense to criminal charges, nor does it guarantee charges will not be pressed.

If you are under investigating for embezzlement or have otherwise be accused of stealing from your Employer, we strongly recommend you seek legal representation by an experienced criminal defense lawyer.

A Charlotte criminal attorney can help explain your legal rights and guide you through what can be a complicated, if not confusing legal process.

Embezzlement is considered a “crime of theft and dishonesty.” It may also be deemed a “crime of moral turpitude.” A conviction for things like larceny, even if you are uncertain whether it’s a misdemeanor or felony charge, can make it extremely difficult to find work, maintain employment, or even rent a home.

The attorneys at our law firm are compassionate, dedicated advocates for justice. Bill Powers is a Board-Certified Specialist in Criminal Law as recognized by the National Board of Trial Advocacy (NBTA) / National Board of Legal Specialty Certification (NBLSC).

Call NOW to schedule your complementary (free) legal consultation with our Charlotte Criminal Defense Attorneys. Everything you tell us (including our lawyers and paralegals) is considered confidential.

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