Carolina Criminal & DUI Lawyer BlogEmbezzlement Charges in North Carolina – Caselaw Review
In this episode of Law Talk with Bill Powers, we take a look at the case of State v Steele (as written by the Hon. Valerie Zachary) and discuss:
- What is Embezzlement in North Carolina?
- What is Larceny by Employee?
- Embezzlement vs False Pretense
- Entrustment of Funds, Accounts, and Fiduciary Duties
- Standards of Proof on Appeal
- Preserving Issues for Appeal – De Novo Review
- Motions to Dismiss
- Protections afforded to Banking Institutions
- FELONY Sentencing Chart – Class C Felony in NC vs Class H Felonies
- Why cases involving $100,000 or more are so serious
This case is an important reminder that anyone who is entrusted with company funds must be scrupulous in their handling of those funds.
It also clarifies some important technical points for criminal defense lawyers in North Carolina and other legal professionals who work with Embezzlement charges in NC.
CORRECTION: North Carolina v. Steele is an opinion of the NC Court of Appeals authored by the Hon. VALERIE Zachary. We extend a sincere apology to Her Honor for referencing an incorrect first name.
TXT AutoTranscription – Embezzlement in North Carolina – Crimes of Theft and Dishonest
1
00:00:03,440 –> 00:00:07,920
[Unknown]: you’re listening to law talk with bill powers your resource for answers to your
2
00:00:08,160 –> 00:00:12,480
[Unknown]: most pressing questions attorney bill power sits down with some of today’s leading
3
00:00:12,480 –> 00:00:16,480
[Unknown]: legal minds to discuss everything from legal issues and legislation to practice
4
00:00:16,480 –> 00:00:21,200
[Unknown]: tips and policy now here’s your host bill powers former president of the north
5
00:00:21,360 –> 00:00:25,600
[Unknown]: carolina advocates for justice recipient of the north carolina state bar john b
6
00:00:25,680 –> 00:00:29,600
[Unknown]: mcmillan distinguished service award and a founding member of the center for legal
7
00:00:29,680 –> 00:00:31,040
[Unknown]: education and advocacy
8
00:00:34,240 –> 00:00:40,080
[Unknown]: hello and welcome to another episode of law talk today i’m joined with chris beto
9
00:00:40,480 –> 00:00:45,040
[Unknown]: attorney extraordinaire and all around great guy good afternoon chris good
10
00:00:45,120 –> 00:00:48,720
[Unknown]: afternoon it’s good to be here i’m glad to have you this is our first
11
00:00:50,240 –> 00:00:55,360
[Unknown]: new co podcast excuse me of twenty twenty two so happy new year to our listeners
12
00:00:56,400 –> 00:01:01,040
[Unknown]: and last week the north carolin corp of appeals came out with
13
00:01:02,400 –> 00:01:06,240
[Unknown]: frankly a bunch of new opinions some publish some unpublished and we
14
00:01:07,360 –> 00:01:11,360
[Unknown]: casually look through the different opinions that we find are interesting for law
15
00:01:11,600 –> 00:01:15,280
[Unknown]: talk we actually i actually read all the opinions that come out especially if they
16
00:01:15,440 –> 00:01:19,200
[Unknown]: involve criminal defense or family law matters and
17
00:01:20,640 –> 00:01:24,880
[Unknown]: this is an interesting one that involves embezzlement crimes of dishonesty and
18
00:01:25,040 –> 00:01:30,240
[Unknown]: theft is what attorneys may call it and this particular podcast probably is a
19
00:01:30,320 –> 00:01:34,160
[Unknown]: little bit more interesting to legal professionals lost in although i guess anyone
20
00:01:34,240 –> 00:01:36,880
[Unknown]: who has a general interest in criminal laws may find it
21
00:01:38,400 –> 00:01:44,080
[Unknown]: of value or help and it’s chris and i basically talking about a case summary of
22
00:01:44,160 –> 00:01:48,560
[Unknown]: sorts so the case is formerly known as north carolina versus thomas wayne steel
23
00:01:49,120 –> 00:01:53,760
[Unknown]: sometimes lawyers call that state b st it’s the north carolina court of appeals
24
00:01:53,840 –> 00:01:58,960
[Unknown]: opinion two zero two two so it’s twenty twenty two nc coa thirty nine three nine
25
00:01:59,680 –> 00:02:03,200
[Unknown]: it’s probably so near they don’t have a site yet and if you’re an attorney you know
26
00:02:03,200 –> 00:02:08,640
[Unknown]: what sites mean it was filed january eighteenth twenty twenty two it’s a case that
27
00:02:08,720 –> 00:02:14,320
[Unknown]: comes out of paco county opinion written by susan zine for the court and
28
00:02:14,980 –> 00:02:15,980
[Unknown]: sometimes
29
00:02:16,800 –> 00:02:20,560
[Unknown]: i’m not a pellet person but i think they have a period of time the defendant may
30
00:02:20,640 –> 00:02:26,400
[Unknown]: have a period of time to appeal it and so it may not be binding precedent until
31
00:02:26,640 –> 00:02:29,520
[Unknown]: after that time period but it’s probably instructional and helpful
32
00:02:30,560 –> 00:02:34,240
[Unknown]: i think it’s important to point out that neither chris nor i or anyone at the
33
00:02:34,320 –> 00:02:38,320
[Unknown]: powers law firm have any affiliation with the case and we’re just reading the fact
34
00:02:38,300 –> 00:02:39,300
[Unknown]: pattern like
35
00:02:40,800 –> 00:02:44,320
[Unknown]: everyone else who reads the case also so chris if you could maybe just give us a
36
00:02:44,320 –> 00:02:46,560
[Unknown]: brief summary of what what’s going on in the case
37
00:02:47,460 –> 00:02:48,460
[Unknown]: yeah
38
00:02:49,360 –> 00:02:51,920
[Unknown]: the defendant became very close with
39
00:02:53,920 –> 00:02:59,520
[Unknown]: the victim in this case lily monk and her husband pastor mike monk they developed a
40
00:02:59,760 –> 00:03:02,240
[Unknown]: familial relationship over the years in fact
41
00:03:03,600 –> 00:03:08,800
[Unknown]: the defendant called miss munk and pastor mon dad and mom and they referred to him
42
00:03:08,740 –> 00:03:09,740
[Unknown]: as their son
43
00:03:10,580 –> 00:03:11,580
[Unknown]: pastor
44
00:03:12,320 –> 00:03:13,440
[Unknown]: monk passed away
45
00:03:14,560 –> 00:03:18,320
[Unknown]: and um even the defendant was the one who gave the eulogy at his funeral
46
00:03:19,360 –> 00:03:24,400
[Unknown]: after he passed away the mother went through a very tough time she said that his
47
00:03:24,480 –> 00:03:27,200
[Unknown]: death almost took her out and she can make it without him
48
00:03:28,400 –> 00:03:33,280
[Unknown]: and she had very little experience handling finances and she asked the defendant if
49
00:03:33,360 –> 00:03:39,360
[Unknown]: he would help in fact the defendant said that he would be happy to help um miss
50
00:03:39,600 –> 00:03:44,000
[Unknown]: monk made him the joint holder in some of the bank accounts that she had and
51
00:03:44,240 –> 00:03:50,480
[Unknown]: further on down the road she also executed a power of attorney granting defendant
52
00:03:52,240 –> 00:03:54,880
[Unknown]: power of attorney over all of her finances
53
00:03:55,540 –> 00:03:56,540
[Unknown]: um
54
00:03:57,200 –> 00:04:03,360
[Unknown]: and she also drafted a will making defendant the executor of the will also leaving
55
00:04:03,440 –> 00:04:10,960
[Unknown]: a majority of the estate to the defendant um the case deals with issues of the
56
00:04:10,780 –> 00:04:11,780
[Unknown]: defendant
57
00:04:12,580 –> 00:04:13,580
[Unknown]: um
58
00:04:14,880 –> 00:04:19,440
[Unknown]: abusing this fiduciary relationship basically utilizing these accounts to cover a
59
00:04:19,520 –> 00:04:20,800
[Unknown]: bunch of personal expenses
60
00:04:21,540 –> 00:04:22,540
[Unknown]: and
61
00:04:23,300 –> 00:04:24,300
[Unknown]: pretty much
62
00:04:25,840 –> 00:04:28,000
[Unknown]: abusing that relationship to his own benefit
63
00:04:29,360 –> 00:04:30,960
[Unknown]: yeah so these cases
64
00:04:32,320 –> 00:04:36,960
[Unknown]: crimes of theft vary from different degrees you’ll occasionally hear of misdemeanor
65
00:04:37,040 –> 00:04:42,320
[Unknown]: cases like maybe misdemeanor larsen shoplifting concealment and this is kind of the
66
00:04:42,320 –> 00:04:45,360
[Unknown]: top of the pile at least for state charges
67
00:04:46,960 –> 00:04:50,800
[Unknown]: because while embezzlement charges are serious but then there’s an amount in value
68
00:04:51,040 –> 00:04:53,120
[Unknown]: that we’ll talk about that a little bit so
69
00:04:55,120 –> 00:04:56,400
[Unknown]: this is a fact pattern that
70
00:04:57,680 –> 00:05:00,960
[Unknown]: i guess there were indictments or super seen indictments for exploitation of an
71
00:05:01,040 –> 00:05:05,120
[Unknown]: older adult and an a beez of one hundred thousand dollars or more and that means
72
00:05:05,460 –> 00:05:06,460
[Unknown]: something
73
00:05:07,520 –> 00:05:12,800
[Unknown]: so for lawyers and lawsuits legal issue number one the thing that the court of
74
00:05:12,880 –> 00:05:17,680
[Unknown]: appeals tends to address the original motions and the standards of review in this
75
00:05:17,840 –> 00:05:23,840
[Unknown]: instance the appellant the defendant in the case appealed through counsel a denial
76
00:05:23,620 –> 00:05:24,620
[Unknown]: of
77
00:05:25,680 –> 00:05:30,240
[Unknown]: the motion to dismiss there are several different reasons in this particular case
78
00:05:30,400 –> 00:05:35,520
[Unknown]: but the court pointed out that in reviewing a denial of a motion to dismiss they
79
00:05:35,500 –> 00:05:36,500
[Unknown]: base it on the
80
00:05:37,760 –> 00:05:42,480
[Unknown]: on those involving insufficiency of evidence they review those de novo de novo is
81
00:05:42,560 –> 00:05:48,240
[Unknown]: latin for of new it may be a literal translation or une it means that they’re not
82
00:05:48,400 –> 00:05:49,600
[Unknown]: bound by any
83
00:05:51,040 –> 00:05:55,760
[Unknown]: prior courts i guess inference of the facts they can look at things fresh and
84
00:05:55,840 –> 00:06:00,080
[Unknown]: decide what they want to do and the opinion the court basically said emotion
85
00:06:00,160 –> 00:06:05,280
[Unknown]: dismiss is denied properly when there is substantial evidence of each element of
86
00:06:05,280 –> 00:06:10,000
[Unknown]: the offense charge and the fant being the perpetrator of that alleged offense
87
00:06:10,800 –> 00:06:16,400
[Unknown]: substantial evidence is legal definition a term of art its evidence such relevant
88
00:06:16,480 –> 00:06:21,280
[Unknown]: evidence that the reasonable mind might accept is adequate to support and this may
89
00:06:21,440 –> 00:06:28,560
[Unknown]: come as a surprise uh for maybe law students excuse me that evidence is viewed in
90
00:06:28,640 –> 00:06:34,640
[Unknown]: the light most favorable to the state or the state’s given benefit of every eas a
91
00:06:34,720 –> 00:06:36,880
[Unknown]: reason strong theref
92
00:06:38,240 –> 00:06:42,880
[Unknown]: and when the state offers evidence even if its conflicting with other evidence
93
00:06:42,960 –> 00:06:44,640
[Unknown]: presented of the crime charge
94
00:06:46,080 –> 00:06:50,720
[Unknown]: the court writes that the defendants motion dismissed must be denied now chris you
95
00:06:50,960 –> 00:06:52,160
[Unknown]: previously actually clerked
96
00:06:53,360 –> 00:06:55,200
[Unknown]: at the appellate level and
97
00:06:56,480 –> 00:06:58,560
[Unknown]: is based on your background
98
00:06:59,760 –> 00:07:03,040
[Unknown]: how does the court approach this is a clerk like say okay here are different
99
00:07:03,280 –> 00:07:08,400
[Unknown]: standards or does everyone just sort of know what what’s going in on the case as
100
00:07:08,480 –> 00:07:11,040
[Unknown]: far as how the court’s going to review the matter
101
00:07:12,320 –> 00:07:17,360
[Unknown]: usually there is a primary issue and the judge will ask the clerks to research that
102
00:07:17,440 –> 00:07:19,600
[Unknown]: issue and provide a memorandum as to
103
00:07:21,100 –> 00:07:22,100
[Unknown]: whether they think
104
00:07:23,840 –> 00:07:28,400
[Unknown]: you know the appellants case is worthy of being heard or even whether that issue is
105
00:07:28,560 –> 00:07:31,600
[Unknown]: even a viable issue to be heard before the court
106
00:07:32,720 –> 00:07:38,400
[Unknown]: usually the judge has an inkling of how they’re going to rule on a certain case and
107
00:07:39,040 –> 00:07:43,120
[Unknown]: they’ll present their version of what they think and then they’ll ask the clerks to
108
00:07:43,200 –> 00:07:49,920
[Unknown]: draft a memo based on that right so obviously there may be a general idea about the
109
00:07:50,080 –> 00:07:54,080
[Unknown]: case going in but i think mines are not made up until the homework is done is that
110
00:07:54,160 –> 00:07:58,560
[Unknown]: correct that’s correct now tell me a little bit you know i have legal argument
111
00:07:58,640 –> 00:08:00,400
[Unknown]: number one what is embezzlement and
112
00:08:02,640 –> 00:08:04,480
[Unknown]: embezzle north carolina is
113
00:08:05,600 –> 00:08:11,680
[Unknown]: different than in say larson bue or family lar by an employee so chris what does
114
00:08:11,840 –> 00:08:15,760
[Unknown]: north carolina define as embezzlement what are the factors that we’re looking at in
115
00:08:15,840 –> 00:08:20,480
[Unknown]: court the primary factor is it has to involve a person of trust
116
00:08:21,680 –> 00:08:25,920
[Unknown]: basically what that means it applies to any person who is a guardian administrator
117
00:08:26,080 –> 00:08:31,840
[Unknown]: executor trustee or any receiver or any other fiduciary a fiduciary
118
00:08:33,040 –> 00:08:38,960
[Unknown]: holds a responsibility um they have to act in the best interest of the person
119
00:08:39,020 –> 00:08:40,020
[Unknown]: they’re serving
120
00:08:41,040 –> 00:08:45,840
[Unknown]: embezzlement is also defined as embezzled or fraudulently or knowingly and
121
00:08:45,920 –> 00:08:52,080
[Unknown]: willfully miu apply or convert to own use or take make away with or secrete with
122
00:08:52,160 –> 00:08:56,000
[Unknown]: intent to embezzle or fraudulently or knowingly and willfully mis apply
123
00:08:57,200 –> 00:09:02,000
[Unknown]: or convert to his own use any money goods or other channels bank note check or
124
00:09:02,160 –> 00:09:06,400
[Unknown]: order for the payment of money issued by or drawn on any bank or other corporation
125
00:09:07,280 –> 00:09:12,080
[Unknown]: any treasury warrant treasury note bond or to take any other person or corporation
126
00:09:12,240 –> 00:09:14,560
[Unknown]: unincorporated association or organization
127
00:09:15,680 –> 00:09:19,120
[Unknown]: which shall have come into his possession or under his care shall be guilty of a
128
00:09:19,200 –> 00:09:25,920
[Unknown]: felony now i know that is a lot to take in so i want to shorten that to a sentence
129
00:09:26,080 –> 00:09:27,360
[Unknown]: that is more digestible
130
00:09:28,720 –> 00:09:34,880
[Unknown]: and more succinct than the statutory definition so in short to constitute
131
00:09:34,960 –> 00:09:39,600
[Unknown]: embezzlement the property in question initially must be acquired lawfully pursuant
132
00:09:39,680 –> 00:09:42,880
[Unknown]: to a trust relationship and then wrongfully converted
133
00:09:44,320 –> 00:09:46,720
[Unknown]: right and i think it’s fair to say that this is
134
00:09:48,000 –> 00:09:52,960
[Unknown]: an expansive statute which means it’s meant to cover a wide range of different type
135
00:09:52,740 –> 00:09:53,740
[Unknown]: of
136
00:09:54,480 –> 00:09:58,320
[Unknown]: banking instruments notes things of values as well as types of different types of
137
00:09:58,480 –> 00:10:02,160
[Unknown]: relationship if you’re particularly interested in the general statute the criminal
138
00:10:02,240 –> 00:10:05,920
[Unknown]: statute that applies its north carolin general statute section fourteen one four
139
00:10:06,080 –> 00:10:07,200
[Unknown]: nine zero nine
140
00:10:08,800 –> 00:10:10,640
[Unknown]: subsection a as an apple three
141
00:10:11,940 –> 00:10:12,940
[Unknown]: and
142
00:10:13,760 –> 00:10:17,680
[Unknown]: and it you know what chris gave was actually the abbreviated version that goes on
143
00:10:17,680 –> 00:10:19,680
[Unknown]: and on about this but i think one of the primary
144
00:10:21,660 –> 00:10:22,660
[Unknown]: differences between
145
00:10:23,920 –> 00:10:27,680
[Unknown]: an embezzlement charge and sometimes we have people that work for companies and
146
00:10:27,680 –> 00:10:31,440
[Unknown]: they’re accused of taking something from the company and you know they asked what’s
147
00:10:31,440 –> 00:10:32,720
[Unknown]: the difference between embezzlement and
148
00:10:33,920 –> 00:10:35,280
[Unknown]: largely by an employee
149
00:10:36,800 –> 00:10:40,560
[Unknown]: embezzlement means that you are entrusted specifically for the care and control
150
00:10:41,600 –> 00:10:44,320
[Unknown]: of of something of value it could be money it could be
151
00:10:45,360 –> 00:10:48,880
[Unknown]: cash checking accounts banking accounts could be real property personal property
152
00:10:49,920 –> 00:10:54,880
[Unknown]: whereas felony larson by employee may be that you as an employee have access to it
153
00:10:55,040 –> 00:10:59,520
[Unknown]: or because of the nature of your employment and they they trust you to work in the
154
00:10:59,520 –> 00:11:03,920
[Unknown]: place but you’re not necessarily entrusted with it as in the disposition ultimately
155
00:11:04,000 –> 00:11:07,040
[Unknown]: disposition of it it’s a pretty fine point
156
00:11:08,100 –> 00:11:09,100
[Unknown]: uh of law
157
00:11:10,000 –> 00:11:13,600
[Unknown]: the substantive effect is that basically you take something that doesn’t belong to
158
00:11:13,680 –> 00:11:17,520
[Unknown]: you and it it’s kind of the every person’s view of larson
159
00:11:18,780 –> 00:11:19,780
[Unknown]: chris what’s the
160
00:11:20,880 –> 00:11:24,880
[Unknown]: i call it the big tama but what’s the big deal with one hundred thousand dollars in
161
00:11:24,960 –> 00:11:26,000
[Unknown]: the allegation
162
00:11:27,200 –> 00:11:32,240
[Unknown]: well the hundred thousand dollars elevates this to a whole nother level of
163
00:11:32,340 –> 00:11:33,340
[Unknown]: penalties
164
00:11:35,840 –> 00:11:40,400
[Unknown]: if the value embezzled is less than one hundred thousand dollars it’s a class h
165
00:11:40,640 –> 00:11:44,880
[Unknown]: felony if it’s one hundred thousand dollars or more it’s elevated to a classy
166
00:11:44,780 –> 00:11:45,780
[Unknown]: felony
167
00:11:46,560 –> 00:11:51,600
[Unknown]: and that means if even if you have no prior record the top of the presumptive range
168
00:11:52,640 –> 00:11:57,280
[Unknown]: if convicted on embezzling a hundred thousand dollars a more is seventy three to a
169
00:11:57,360 –> 00:11:59,840
[Unknown]: hundred months right so i mean
170
00:12:01,120 –> 00:12:05,680
[Unknown]: once you hit that mark you’re looking at some pretty serious time you’re convicted
171
00:12:06,480 –> 00:12:08,640
[Unknown]: right and that isn’t just a substantive difference
172
00:12:09,760 –> 00:12:14,400
[Unknown]: it is a substantial difference in time to give me an example in north carolina we
173
00:12:14,640 –> 00:12:20,000
[Unknown]: classify different levels of offenses class a b one b two and then c all the way
174
00:12:19,860 –> 00:12:20,860
[Unknown]: down the eye
175
00:12:21,840 –> 00:12:26,480
[Unknown]: there’s a pretty substantial difference between a class c as in charlie felony and
176
00:12:26,560 –> 00:12:30,880
[Unknown]: class h felony class i felony for for prior record level one you’re not even really
177
00:12:30,960 –> 00:12:37,120
[Unknown]: looking at the possibility of jail time and class c prior record level one one
178
00:12:37,200 –> 00:12:41,120
[Unknown]: hundred thousand dollars or more in this instance is actually more serious than
179
00:12:41,360 –> 00:12:47,440
[Unknown]: armed robbery okay and their class c is really towards the top and that’s top of
180
00:12:47,520 –> 00:12:51,360
[Unknown]: the presumptive assuming there aren’t additional factors in aggravation
181
00:12:52,540 –> 00:12:53,540
[Unknown]: which is
182
00:12:54,480 –> 00:12:59,280
[Unknown]: or prior record level points based on your history if you have more questions about
183
00:12:59,360 –> 00:13:04,160
[Unknown]: that i would tell you i’d encourage you to consult the you can google the f
184
00:13:04,560 –> 00:13:09,440
[Unknown]: sentencing chart guidelines it is available at carolina attorneys com that’s our
185
00:13:10,300 –> 00:13:11,300
[Unknown]: firm website
186
00:13:12,260 –> 00:13:13,260
[Unknown]: and
187
00:13:13,840 –> 00:13:20,080
[Unknown]: it’s a big deal so issue number one excuse me is what is investment issue number
188
00:13:20,240 –> 00:13:26,160
[Unknown]: two is what’s the big deal with one hundred thousand dollars and the statutes
189
00:13:26,320 –> 00:13:28,640
[Unknown]: written a hundred thousand dollars or more and then
190
00:13:29,760 –> 00:13:33,440
[Unknown]: it may be a cumulative value and then issue number three is what is a fiduciary
191
00:13:33,600 –> 00:13:37,760
[Unknown]: relationship so chris if you kind of go into that a little bit that again is a term
192
00:13:37,920 –> 00:13:41,840
[Unknown]: of art meaning that’s what lawyers use fiduciary relationship
193
00:13:42,960 –> 00:13:46,960
[Unknown]: basically means there’s a relationship created by a power of attorney between the
194
00:13:47,040 –> 00:13:54,320
[Unknown]: principal um and then turning effect is fiduciary nature um so basically fiduciary
195
00:13:54,400 –> 00:14:00,240
[Unknown]: is someone who is entrusted um with something of value and they’re they have
196
00:14:00,480 –> 00:14:07,760
[Unknown]: primary responsibility for doing or or managing that thing of value in the best
197
00:14:08,000 –> 00:14:13,680
[Unknown]: interests of the individuals or corporation that has entrusted them or something of
198
00:14:13,760 –> 00:14:18,720
[Unknown]: value um however a fiduciary relationship may arise under a variety of
199
00:14:18,700 –> 00:14:19,700
[Unknown]: circumstances
200
00:14:20,800 –> 00:14:24,800
[Unknown]: it exists in all cases where there has been a special confidence reposed in one who
201
00:14:24,880 –> 00:14:29,680
[Unknown]: an equity and good conscience is bound to act in good faith and with due regard to
202
00:14:29,680 –> 00:14:34,480
[Unknown]: the interests of one repos in confidence this was an interesting issue at least i
203
00:14:34,640 –> 00:14:36,720
[Unknown]: found interesting the case because i think there was a
204
00:14:38,480 –> 00:14:41,520
[Unknown]: and i think the court ultimately came down with it it’s a difference with our
205
00:14:41,520 –> 00:14:45,840
[Unknown]: distinction upon a difference but in this particular instance there was actually a
206
00:14:45,920 –> 00:14:48,640
[Unknown]: power returning was executed there was some mention that they went to an attorney’s
207
00:14:48,640 –> 00:14:52,560
[Unknown]: office and they you know checked off all the boxes and signed off on it
208
00:14:54,240 –> 00:14:58,000
[Unknown]: and so they were actually made attorney in fact but i think the court repeal said
209
00:14:58,080 –> 00:15:02,080
[Unknown]: well that is great in this instance that is correct we had it but it doesn’t
210
00:15:02,240 –> 00:15:07,760
[Unknown]: necessarily require a legal filing or a legal execution it could be inferred from
211
00:15:08,160 –> 00:15:10,000
[Unknown]: the relationship meaning that
212
00:15:11,920 –> 00:15:15,840
[Unknown]: fiduciary relationship may arise using your language under a variety of
213
00:15:16,080 –> 00:15:19,920
[Unknown]: circumstances which means that court takes into consideration
214
00:15:21,680 –> 00:15:23,360
[Unknown]: the relationship between the parties
215
00:15:24,480 –> 00:15:29,040
[Unknown]: and frankly it’s not terribly unusual for these cases to involve things other than
216
00:15:29,200 –> 00:15:34,400
[Unknown]: just an employee or an officer of a bank it could be a closely held relationship
217
00:15:35,520 –> 00:15:38,800
[Unknown]: in this instance where they weren’t related by blood but they referred to each
218
00:15:38,880 –> 00:15:42,560
[Unknown]: other’s mom and dad our son and daughter he was and it was a close close
219
00:15:42,420 –> 00:15:43,420
[Unknown]: relationship
220
00:15:44,560 –> 00:15:46,400
[Unknown]: so the intent for
221
00:15:47,840 –> 00:15:52,400
[Unknown]: embezzlement is what chris what does the court like talk about intent the men’s rad
222
00:15:52,300 –> 00:15:53,300
[Unknown]: the evil mind
223
00:15:55,520 –> 00:16:01,040
[Unknown]: in order to prove intent intent is to willfully or corrupt use or mis apply the
224
00:16:01,120 –> 00:16:06,080
[Unknown]: property of another for purposes other than those for which the asian or producer
225
00:16:06,320 –> 00:16:12,240
[Unknown]: received it so basically you’re entrusted with something of value you’re required
226
00:16:12,400 –> 00:16:15,360
[Unknown]: to manage it in a certain way and you
227
00:16:17,360 –> 00:16:19,920
[Unknown]: instead use it for your own purposes
228
00:16:21,280 –> 00:16:27,120
[Unknown]: would be you know an example of misappropriating funds for your own use right so it
229
00:16:26,860 –> 00:16:27,860
[Unknown]: could be
230
00:16:28,560 –> 00:16:32,320
[Unknown]: paying off a credit card or buying a car putting down payment on your house it
231
00:16:32,320 –> 00:16:36,480
[Unknown]: could be you know taking cash out and just spinning it there are a lot of different
232
00:16:37,360 –> 00:16:40,640
[Unknown]: financial tools to do that now let’s case said another and i call it legal issue
233
00:16:40,800 –> 00:16:42,160
[Unknown]: number four interesting twist
234
00:16:43,140 –> 00:16:44,140
[Unknown]: because
235
00:16:44,780 –> 00:16:45,780
[Unknown]: at some point
236
00:16:47,600 –> 00:16:53,840
[Unknown]: some formalized uh paperwork was filed with the bank or banks in this instance
237
00:16:54,000 –> 00:16:55,520
[Unknown]: saying that they were essentially
238
00:16:56,800 –> 00:16:58,000
[Unknown]: co owners of the
239
00:16:59,840 –> 00:17:04,320
[Unknown]: bank account whatever big bank account savings account and definit argued that
240
00:17:05,060 –> 00:17:06,060
[Unknown]: because there was
241
00:17:07,520 –> 00:17:12,400
[Unknown]: money that was legally titled in his name that he was entitled to use you can’t
242
00:17:12,380 –> 00:17:13,380
[Unknown]: embezzle something
243
00:17:14,320 –> 00:17:19,360
[Unknown]: that was your to start with so because it was a joint account i can’t embezzle what
244
00:17:19,440 –> 00:17:21,680
[Unknown]: was mine how de court respond to that
245
00:17:23,040 –> 00:17:28,240
[Unknown]: well they i mean they thought that was merit less um basically what they said the
246
00:17:28,320 –> 00:17:33,440
[Unknown]: statute that the defendant was trying to apply basically serves to protect the
247
00:17:33,600 –> 00:17:38,640
[Unknown]: financial institutions specifically section fifty four c one hundred sixty five
248
00:17:38,720 –> 00:17:44,240
[Unknown]: governed savings banks it is essentially the same as section fifty three c six dash
249
00:17:44,400 –> 00:17:48,400
[Unknown]: six and section fifty four dash one hundred nine point five eight
250
00:17:49,920 –> 00:17:52,800
[Unknown]: the court said the statutes simply provide in some that the financial
251
00:17:53,840 –> 00:17:57,040
[Unknown]: institution may safely pay either of the two persons so
252
00:17:58,560 –> 00:18:03,280
[Unknown]: the defendant basically misinterpreted that statute the purpose of those statutes
253
00:18:03,360 –> 00:18:06,000
[Unknown]: is to protect the financial institutions it has
254
00:18:07,040 –> 00:18:10,080
[Unknown]: nothing to do with the rights of
255
00:18:12,000 –> 00:18:15,680
[Unknown]: joint people in a bank account yeah that surprised me because
256
00:18:16,800 –> 00:18:21,440
[Unknown]: it said it is well established that these statutes are and i bold in this area for
257
00:18:21,760 –> 00:18:27,920
[Unknown]: protection of the financial institution only and absent any other evidence are not
258
00:18:28,080 –> 00:18:32,320
[Unknown]: as positive as the ownership of the funds so it is a type of protection that if you
259
00:18:33,520 –> 00:18:38,000
[Unknown]: i guess go after your bank and say i didn’t authorize the withdrawal that account
260
00:18:38,240 –> 00:18:42,640
[Unknown]: banks as well you both around the account your name and you know that’s what we do
261
00:18:43,040 –> 00:18:46,560
[Unknown]: we actually see this a fair amount in divorce family law
262
00:18:47,680 –> 00:18:52,000
[Unknown]: type of actions where there going to be joint checking or joint savings accounts
263
00:18:52,000 –> 00:18:53,040
[Unknown]: and someone comes in and
264
00:18:54,080 –> 00:18:57,040
[Unknown]: takes the funds because they’re both entitled to do that
265
00:18:58,020 –> 00:18:59,020
[Unknown]: so
266
00:19:00,240 –> 00:19:04,080
[Unknown]: this is a good read it’s um i think it gives you some basic tenants of law if
267
00:19:04,080 –> 00:19:06,960
[Unknown]: you’re a law student check out state fee steel
268
00:19:08,080 –> 00:19:12,480
[Unknown]: and if you have further questions about what’s embezzlement or what’s different in
269
00:19:12,480 –> 00:19:19,440
[Unknown]: besar by an employee feel free to give uh chris or me a call at powers law firm
270
00:19:19,520 –> 00:19:25,200
[Unknown]: carolina attorneys dot com that’s seven o four three four two four three five seven
271
00:19:25,580 –> 00:19:26,580
[Unknown]: anything to add chris
272
00:19:27,600 –> 00:19:33,760
[Unknown]: uh nothing was it was a a riveting and enlightening experience was and it’s an
273
00:19:33,840 –> 00:19:38,480
[Unknown]: interesting case cause uh even with no prior record you’re looking at um what was
274
00:19:38,560 –> 00:19:40,960
[Unknown]: that six to eight yeah active well i think that
275
00:19:42,560 –> 00:19:46,240
[Unknown]: they don’t differentiate between arm robbery and this because basically you’re
276
00:19:46,240 –> 00:19:48,400
[Unknown]: doing arm robbery with a patent or right
277
00:19:50,000 –> 00:19:54,800
[Unknown]: siphoning funds through a secret bank account so they don’t see the difference it’s
278
00:19:54,420 –> 00:19:55,420
[Unknown]: basically
279
00:19:56,080 –> 00:20:00,160
[Unknown]: white collar a prob right it’s a confidence it’s a crime of confidence and that’s
280
00:20:00,160 –> 00:20:05,120
[Unknown]: where the term actually comes from a con person a con man is that you rely on
281
00:20:05,200 –> 00:20:06,960
[Unknown]: someone’s confidence and relationship and
282
00:20:08,000 –> 00:20:12,160
[Unknown]: take and abuse that situation financially so well thanks so much chris and it was a
283
00:20:12,160 –> 00:20:16,000
[Unknown]: pleasure talking with you and please make sure to join us for the next episode of
284
00:20:15,900 –> 00:20:16,900
[Unknown]: law talk
285
00:20:19,440 –> 00:20:24,080
[Unknown]: we’ll talk with bill powers your resource for legal issues and legislation practice
286
00:20:24,080 –> 00:20:28,960
[Unknown]: tips professionalism and policy discussions want to talk to bill powers call seven
287
00:20:29,200 –> 00:20:34,000
[Unknown]: zero four three four two help that’s seven zero four three four two four three five
288
00:20:33,780 –> 00:20:34,780
[Unknown]: seven
289
00:20:35,360 –> 00:20:39,280
[Unknown]: talk with bill powers is an educational resource only the information presented
290
00:20:39,360 –> 00:20:42,960
[Unknown]: does not constitute legal advice and is not a substitute for consulting with an
291
00:20:43,040 –> 00:20:47,120
[Unknown]: attorney every situation is unique therefore you should always consult with a
292
00:20:47,200 –> 00:20:49,360
[Unknown]: licensed attorney before making any legal decision
Helpful Information About Criminal Charges