Larceny by Employee

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.

Long Answer:
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.

Appreciable Impairment

Question From an Avvo Reader: Is the Burden of proof really on the state to be convicted of a DWI?

Here are the facts of her or his case: “Blood draw was sent off for alcohol came back within 3 months with a reading of a 0.00 and has been sent off again for further testing. The results have not come back yet but is now taking longer than the first test. I understand the backlog but I wonder why is the second test taking longer. Also, how can the state prove impairment? Assuming they don’t find any opiates or any other schedule 1 controlled substances in the blood. From my understanding there is not yet a legal per se law for other drugs in the State of NC not listed above in those categories so how would they know limits?”

Short Answer: Yes, the burden is on the prosecution.

Long Answer:
Blood draws are initially tested only for alcohol. The legal limit for alcohol is a blood-alcohol-concentration (BAC) of 0.08 at the time of driving/operating your vehicle. If the BAC is below 0.08, the blood is re-tested for a panel of drugs. If your blood comes back with a BAC at or above this number you are per se impaired. This does not mean you will automatically be convicted.

There are other defenses to a DWI. For example, you can argue that your BAC was not above the legal limit at the time of driving. (For example, I won a case a few years ago in which the defendant had a BAC over 0.25, but there was such a delay between my client’s single car crash and the State Trooper showing up at the hospital that the Trooper and prosecutor could not show when my client became impaired. This is a “State vs Eldred” defense. Please note that all cases are unique and success in one case doesn’t mean anything relative to your case.) You can argue that the prosecution can’t prove you were the driver. You can argue that the officer performed all the Standard Field Sobriety Tests wrong (which they often do!). You can argue that the police didn’t have a right to pull you over or didn’t have probable cause to make you take a breath/blood test or arrest you. These, and many others, are the sorts of issues a good lawyer will look into on your behalf.

While there is no corresponding per se limit for drugs like there is for alcohol, the prosecutor can still argue that you were “appreciably impaired”. (Prosecutors can/will also do this if your BAC is below 0.08. Don’t expect your case to be dismissed just because your BAC was below the legal limit, I’ve tried cases with BACs as low as 0.05 and 0.04.)

The burden of proof is still on the prosecution in an appreciable impairment case. Prosecutors have to prove that (1) there was a noticeable impairment of your faculties at the time you drove, and (2) that impairment was caused by an impairing substance (not, for example, by disability or illness). Appreciable impairment prosecutions are common in situations such as drug-only DWIs, marijuana-only DWIs, cases with BACs below 0.08, and cases where the defendant refuses to take a breath/blood test. The defenses listed above apply in this situation as well.

The final question is what happens if the drug panel of your blood comes back with nothing at all, no impairing substances. You would expect a prosecutor to dismiss your case because they cannot prove you had an impairing substance in your system. You would think this would be ethically required. And many prosecutors will. However, some prosecutors offices will still prosecute you, and will claim that there must have been an impairing substance in your blood, one that isn’t tested for in the blood panel.