Breach of trust with fraudulent intent is South Carolina’s version of embezzlement.
When someone is supposed to hold money or property for someone else’s benefit, but they fraudulently convert that money or property to their own use, they can be criminally charged with breach of trust in SC.
In this article you will learn:
- The difference between breach of trust with fraudulent intent and larceny in SC;
- The potential penalties for breach of trust with fraudulent intent; and
- Why people are often charged with breach of trust with fraudulent intent when the facts don’t fit the alleged crime.
Breach of Trust with Fraudulent Intent or Embezzlement?
Breach of trust in SC is embezzlement.
As the Court noted in State v. McCann, other states have similar offenses but they are called by different names, including:
- Larceny after trust
- Larceny by a bailee,
- Larceny by false pretenses, and
- Embezzlement.
All are similar crimes, SC just has a different name for it.
SC has a separate criminal offense for embezzlement of public funds, which specifically applies to public officials, or “an officer or other person charged with the safekeeping, transfer, and disbursement of public funds.”
Embezzlement of public funds is similar to breach of trust with fraudulent intent, except SC Code Section 16-13-220 provides for an inference that the funds were fraudulently appropriated where the official has 1) received public funds and 2) is unable to account for them.
What are the Elements of Breach of Trust with Fraudulent Intent in SC?
Before you can be convicted of breach of trust with fraudulent intent the state must prove each and every element of the crime, including:
- That there was a fiduciary relationship between the accused person and the alleged victim,
- That the accused person took property from the alleged victim and converted it to their own use,
- That the property that was taken was being held in trust for the alleged victim, and
- That the property was taken with fraudulent intent.
A fiduciary relationship means that the defendant (accused person) held property that was for the benefit of the alleged victim – that could mean an employer-employee relationship, a guardianship, a parent-child relationship, or a homeowner who provided funds to a contractor to purchase materials.
Fraudulent intent means that the defendant intended to defraud the alleged victim. That does not include situations where the alleged victim was unhappy with a contractor’s work, an employee forgets to return tools to a job site, or a store clerk makes honest mistakes while keeping records or operating the cash register.
The elements of breach of trust are found in SC case law, but SC Code Section 16-13-230 provides the potential penalties for the offense and also clarifies that you can be convicted for breach of trust if you “hire or counsel” another person to commit a breach of trust.
What is the Difference Between Breach of Trust and Larceny?
Breach of trust is not larceny, because it includes additional elements that larceny does not cover.
What’s the difference?
The SC Supreme Court in State v. Parris says the primary difference is that, with larceny, the stolen property is obtained unlawfully, while, with breach of trust, the stolen property is obtained lawfully.
Breach of Trust or Abuse of Process?
Charges for breach of trust are often misused in SC and people are often arrested and charged when there is no probable cause for each element of breach of trust.
If you owe someone money, or if someone is unhappy with a construction project, that is not breach of trust.
If you don’t get the benefit of your bargain in a business transaction, that is not breach of trust. It is a “civil matter,” and you can file a lawsuit in the magistrate court or the Court of Common Pleas to recover your money or property.
Penalties for Breach of Trust in SC
If you are convicted for breach of trust in SC, here are the penalties and other important information:
| Value of the Property | Court Where the Charges are Heard | Misdemeanor or Felony | Potential Sentence |
|---|---|---|---|
| Less than $2,000 | Magistrate or Municipal Court | Misdemeanor | Up to 30 days in jail or up to $1,000 fine |
| Greater than $2,000 but less than $10,000 | General Sessions | Felony | Up to 5 years in prison or fine in discretion of the court |
| $10,000 or more | General Sessions | Felony | Up to 10 years in prison or fine in discretion of the court |
In addition to prison time or fines imposed by the court, restitution may be ordered after a conviction for breach of trust. In some cases, the court may impose a prison sentence, suspend that sentence to probation, and then order payment to the alleged victim. If the payments are not made, the defendant’s probation can be revoked and he or she can be sent to prison to serve their sentence.
Need Help with Breach of Trust Charges in SC?
If you have been charged with breach of trust with fraudulent intent in SC, or if you are under investigation for breach of trust, contact an attorney before you make any statements to police, alleged victims, loss prevention employers, or your employer.
Call Susan Williams today at 843-607-9800 or contact us through our website for a free consultation.
