Elmer McDuffy: Criminal Defense Lawyer Bountiful Utah

If you have been charged with embezzlement, theft or any other offense, contact an experienced Bountiful Utah criminal defense lawyer.

The crime of embezzlement is similar to larceny in the sense that property must be taken without the owner’s consent and with the intent to permanently deprive the owner of the property. The main difference between the crimes of larceny and embezzlement is that the embezzler usually has lawful possession of the property at the time of the taking. (Note that lawful possession does not mean ownership of the property.) In most cases of embezzlement, the owner of the property has entrusted the embezzler with care, custody or control of the property for a limited purpose or period of time. Embezzlement often arises in the employment context, when an employer gives an employee limited possession or control of certain property and the employee begins to treat that property in a manner that is inconsistent with the employer’s limited grant of possession or control.

To summarize, the crime of embezzlement is an extension of the crime of larceny designed to cover instances when the taker has lawful possession or custody of the property for a limited purpose and uses the property in a manner that exceeds the scope of that lawful authority with the intent to permanently deprive the owner of the property.

Robbery

Robbery is yet another extension of the crime of larceny. To prove robbery, generally the government must demonstrate that the defendant took and carried away the property of another with the intent to steal and with the use or threatened use of force. The use or threat of force must take place in the victim’s presence and must compel the victim to part with the property. The necessary force can take many forms, ranging from verbal threats to display of a weapon to physical force. Depending upon the type of force used, the degree of robbery that is charged and the corresponding punishment will be more or less severe. For example, a defendant who uses a deadly weapon such as a gun to cause the victim to part with property will usually receive a more severe charge (e.g., armed or aggravated robbery) than a defendant who grabs the victim by the collar and demands money. Since robbery is a larceny with the additional element of force, if there is no force or threat of force at the time of the unlawful taking, the crime is simply a larceny from the person and not a robbery.

Extortion

The crime of extortion might be referred to as the close cousin of robbery. Historically, the crime of extortion involved using one’s political office or power to obtain unlawful payments. Today, most extortion statutes require that the force or threat of force be somehow conveyed by the defendant to the victim for purposes of taking property from the victim. As distinguished from the crime of robbery, however, the force doesn’t have to be immediate or take place in the victim’s presence. For example, the force or threat of force might be conveyed to the victim via a telephone conversation, a letter, or a third party. Additionally, the force doesn’t have to take the form of a threat to the victim’s personal safety. It could, for instance, be a threat to the victim’s relatives or a threat to harm the victim’s reputation. Once again, the force or threat of force must be used to compel the victim to exchange something of value, although the force or threat does not have to be immediate or in the presence of the victim as long as it is somehow conveyed to the victim.

Burglary

At common law, the crime of burglary required breaking and entering into the dwelling of another at night with the intent to commit a felony once inside the dwelling. Since this definition was much too specific to cover all of the factual variations surrounding the crime of burglary, the definition was gradually expanded to allow for different degrees of burglary depending upon the circumstances of the crime.

Breaking and Entering

The crime of burglary requires that the defendant unlawfully break and enter onto the premises. While the term breaking and entering can encompass the typical breaking (or picking) of a lock to gain entry, it can also include more subtle forms of breaking such as bypassing or fraudulently obtaining a security code in order to unlawfully gain entry. Additionally, certain circumstances can constitute breaking and entering simply because the defendant entered or remained on the premises without the consent of the owner. For example, entering the unlocked or open door of a residence can be considered breaking and entering even though the defendant technically did not have to break into the premises. The mere fact of entering without permission is sufficient to constitute breaking and entering. Similarly, if a person secretes himself and remains on the premises of a department store after closing in order to unlawfully take property, that conduct would also be considered breaking and entering. Again, the breaking and entering would occur because the defendant remained on the property after the established business hours without the consent of the owner.

Dwelling of Another at Night

Today, the dwelling of another can either be a home or a business and may or may not be occupied at the time of the breaking and entering. Additionally, a burglary may occur during the day. Although there is no longer a specific requirement that the breaking and entering occur at night in a dwelling, punishment for the offense is likely to be more severe if it does. This is because at night in a dwelling, there is a greater likelihood that the occupants of the dwelling will be present and suffer some harm as a result of the unlawful breaking and entering.

With the Intent to Commit a Felony

Breaking and entering onto the premises is the voluntary act element in the crime of burglary. The mental state component that accompanies this voluntary act is the specific intent to commit a crime once inside the dwelling. Many jurisdictions require that this intended crime amount to a felony. Therefore, when the defendant is breaking and entering the premises, he must have the specific intent to commit some type of criminal offense (e.g., larceny, robbery or a sexual assault) once inside the dwelling. It is important to understand that the defendant doesn’t actually have to commit the offense once on the premises. It is sufficient for purposes of the crime of burglary if he breaks and enters with the specific intent to commit the criminal offense.

Occasionally, difficulties will arise in proving that the defendant had the intent to commit a crime on the premises, particularly if the defendant is somehow prevented from completing the criminal act once on the premises. As with most criminal law cases, the defendant’s intent to commit a crime once on the premises can be demonstrated by circumstantial evidence.

Receiving Stolen Property

Often, in property theft offenses, the defendant takes property with the intent to sell it to others in order to convert the property to cash. This unlawful practice creates a black market economy in which stolen goods are bought and sold at markedly reduced prices. To aid in undermining this underground exchange of stolen goods, the criminal law proscribes receiving stolen goods. To be guilty of receiving stolen property, a person must know that the property is stolen and intend to receive it as such. Implicit in this requirement is that the person receiving the stolen property is not the original thief, but is receiving stolen property from the person who stole it.

Fraud and False Pretenses

The crime of fraud or false pretenses requires that the defendant make a false statement of past or present fact that induces the victim to relinquish title to property. Additionally, the defendant must have the intent to defraud the victim.

False Statement of Past or Present Fact

For the crime of fraud or false pretenses, the defendant must make a false statement of past or present fact as distinct from a statement or promise related to future activities. The requirement that the statement be related to past or present fact allows the statement to be evaluated for its truth or falsity. In other words, when trying to determine the defendant’s fraudulent intent, statements of past or present fact can be measured against actual circumstances to determine if those statements are true or false. In contrast, statements of future actions or promises of future conduct cannot be measured because the outcome is uncertain, and the truth or falsity of the statements or promises cannot be evaluated until the particular time for the events has elapsed. Moreover, even though the statement or promise of future conduct may eventually turn out to be false, it is difficult to determine whether at the time the defendant made the statements, they were intended to be false or whether the defendant was merely being overly optimistic about the course of future events.

For example, assume that a used-car salesman encourages a customer to purchase a vehicle by stating that the vehicle will be a “classic” in ten years and will double in market value. If the customer purchases the vehicle and many years later discovers that the vehicle is really just an average car and unlikely to increase in value, can the salesman be convicted of fraud? The answer is probably “no.” At the time of the transaction, the salesman made statements concerning possible future events or occurrences. There would be no way to measure the truth or falsity of the statements at the time they are made with enough certainty to conclude that the salesman was acting with fraudulent intent. In fact, it is more likely that the salesman was giving his personal opinion or engaging in the common sales strategy of “puffing,” that is, using slightly exaggerated statements to encourage customers to purchase products. While it is true that this sort of puffing can cross the border into fraudulent conduct, usually the statements must be of past or present fact so as to permit some way to measure the actual truth or falsity of the statements.

Relinquishing Title to Property

For the crime of fraud or false pretenses, the false statements must induce the owner to part with title to the property. Typically, the victim of a fraudulent transaction hands over money to the defendant. In these transactions, the victim fully intends that the defendant have complete title to the money and therefore intends to part with title to the property. The requirement that the defendant obtain title to the property fills a gap left open by larceny statutes, which only cover circumstances in which defendants obtain possession of property, as opposed to title.

Intent to Defraud

At the time of the false statement and the transfer of title, the defendant must also intend to defraud the victim. Generally, if the defendant has made a knowingly false statement of past or present fact that has induced the victim to part with title to property, there is strong circumstantial evidence of the defendant’s intent to defraud. In other words, it is likely that most people would not knowingly make false statements and encourage others to rely upon them and part with property based upon the statements if they didn’t have the specific intent to defraud. Nevertheless, the defendant’s intent must be examined and proven in light of all the surrounding factual circumstances to ensure that the false statement was not a simple mistake or a misunderstanding.

Bad Check Statutes

One common and sometimes controversial example of the crime of false pretenses is writing bad checks. The theory of criminal liability for writing bad checks is that at the time the check is written, if the defendant does not have sufficient funds to cover the amount of the check, then the defendant is making a false statement of present fact. In these transactions, usually the owner of the property who receives the check parts with title to the property in exchange for the check (e.g., obtaining groceries at a grocery store). Thus, the owner parts with title to property in reliance upon the check (the false statement). The question in these cases is whether there is clearly an intent to defraud. If the check writer intends to place the money into his account before the check is presented for payment at the bank, then theoretically he does not have the intent to defraud the owner of the property. That is, at the time of the transaction, the check writer intends to exchange money for the property even though the money is not currently available in the account. On the other hand, if at the time the false statement (the check) is made in exchange for title to the property, the defendant knows that funds will never be available to cover the check, then it is clear that the defendant has acted with the intent to defraud.