Question From an Avvo Reader: Will I do jail time for a first offense Larceny by Employee of $200?
Relevant facts: an employee takes property worth $200 from her employer, she is now charged with Larceny by Employee.
Short Answer: The maximum possible sentence in this situation is an 8 to 19 month prison term. This is the worst case scenario, but probably not a very likely one.
Larceny By Employee, sometimes confused with the similar charge of Embezzlement, is defined by NC GS 14-74, and is a class H felony (if the property taken is worth $100,000 or more this rises to a class C felony).
What are the elements of Larceny by Employee?
To be found guilty of this offense the prosecution must prove beyond a reasonable doubt that:
1) you were an employee of the alleged victim,
2) you willfully took something of value that the employer entrusted to you,
3) the item(s) taken belonged to the employer, and
4) you had the intent to steal/defraud your employer.
For example, let’s say someone works at a grocery store as a cashier, we’ll call her Gertrude. Gertrude’s responsibilities cover ringing up customers and handling cash, but do not cover stocking shelves of handling merchandise other than while checking out customers. One day, Gertrude takes money from the till, puts it in her bag, and intends to keep it. Now let’s analyze this situation with the elements above.
1) Is she an employee? YES
2) Did she will fully take something of value that the employer entrusted to her? YES
3) Did the items belong to the employer? YES
4) Did she intend to keep the money? YES
In this hypothetical, Gertrude is guilty of Larceny by Employee.
However, let’s change things up a bit. Let’s say that Gertrude takes food from the shelves rather than money from the till. Is Gertrude guilty of Larceny by Employee? Probably not. The key is that the food was not entrusted to her by the grocery store, only the cash was. (In this case Gertrude is likely guilty of shoplifting of misdemeanor larceny instead.)
So what’s likely to happen in court?
Even without going to trial you have at least one option to keep this off your record: if you, your attorney, and the prosecutor agree to it you can enter a Conditional Discharge. In a Conditional Discharge you plead guilty and spend time on probation, usually six or twelve months. At the end of the probationary period, if you have satisfied certain conditions (common conditions include not picking up new charges/convictions, paying restitution, doing community service, etc.) the case will be dismissed by the Court.
If you go to trial the prosecution will need to prove all the elements listed above beyond a reasonable doubt. Depending on the facts of your case, you may have multiple good defenses. For example, you can argue that it is unclear who took the property. You can argue that you didn’t intend to keep the property, or that it wasn’t property entrusted to you as part of your employment.
If, however, you are convicted, Felony sentencing in North Carolina is heavily dependent on your prior record level. Your prior record level is calculated based on the number of previous felonies and class 1 or A1 misdemeanors, including DWIs. Assuming you are a prior record level 1, the lowest in NC, the worst case scenario is 6 to 17 months in prison.
More realistically, if you are convicted of this charge and do not have a record, especially a record of prior larcenies, you will likely be placed on probation. There are two general categories of probation in North Carolina: supervised and unsupervised. Supervised probation is much more onerous: you have a probation officer looking over your shoulder, you have to take drug tests and go to their office and/or allow home visits, and you will likely be subject to warrantless searches during the period of probation. If you fail the conditions of probation you can do time in jail or prison, depending on how severe the violations are.
For what it’s worth, I have handled many Larceny by Employee charges, and none of those cases has resulted in active prison time, they have all resulted in various types of probation. (Please note that all cases are unique and results in one case doesn’t mean anything relative to your case.)
Finally, a note on prison terms. Most felony crimes are subject to a nine month “post-release” period, so the final nine months of a prison term are typically served on what is essentially supervised probation. So an 8 to 19 month term would really be 8 to 10 months in prison followed by nine months of post release. However, if you fail the conditions of post release you can still go back to prison and serve the remaining nine months.