Information on crimes that are commonly charged in Michigan. If you need legal assistance, please contact a lawyer.
Statute: MCL 750.174
Crime Group: Property
Sentence Class: Varies:
Minimum Sentence: 0 Months
Maximum Sentence1: Varies:
Maximum Fine: Varies; typically 3x the value of the property embezzled
Jury Instructions: MCJI2d 27.1
Sex Offender Registration Required: No
(1) A person who as the agent, servant, or employee of another person, governmental entity within this state, or other legal entity or who as the trustee, bailee, or custodian of the property of another person, governmental entity within this state, or other legal entity fraudulently disposes of or converts to his or her own use, or takes or secretes with the intent to convert to his or her own use without the consent of his or her principal, any money or other personal property of his or her principal that has come to that person's possession or that is under his or her charge or control by virtue of his or her being an agent, servant, employee, trustee, bailee, or custodian, is guilty of embezzlement.
[The remainder of the statute describes penalties for various amounts embezzled, along with enhancements for prior convictions and victims who are nonprofits or charities, as well as requirements for proving prior convictions.]
When an individual who has lawful control over the property of another and converts, takes, or disposes of that property (s)he has committed the crime of embezzlement. This crime differs from “Larceny” because the defendant in a “Larceny” case does not have the legal control over the property of another; (s)he simply converts, takes, or disposes of without permission. This difference is subtle but is extremely important.
Every crime is broken down into “elements”: things that the prosecution must prove to a jury to obtain a conviction. For a defendant to be convicted of a crime, the prosecution must prove every element of a charge beyond a reasonable doubt. Every element means “every”element; it is not enough for the prosecution to prove four out of five elements. If the prosecution cannot prove beyond a reasonable doubt that the defendant committed each and every element of the crime, the defendant must be acquitted.
Embezzlement has six elements the prosecution must prove beyond a reasonable doubt:
1. The money or property belonged to another individual;
2. The defendant had a relationship with the property’s owner and that relationship was based on trust. (For example, the defendant was acting as the agent of the owner, or was acting as the bailee, trustee, or custodian of the property.);
3. The defendant obtained possession or control of the property because of that relationship;
4. The defendant either dishonestly disposed of the property, converted the property for his/her own use, or took the property with the intent to convert it for his/her own use;
5. At the time the defendant did this, (s)he intended to defraud or cheat the owner of the property; and
6. The fair market value of the property. (It should be noted that the value of property embezzled in separate incidents within a 12-month period may be added together to determine the value. It should also be added that property can include actual money, and not just items of personal property.)
Often, the most difficult element for the prosecution to prove is the fourth one: the defendant either dishonestly disposed of the property, converted the property for his/her own use, or took the property with the intent to convert it for his/her own use. The reason this element is the most difficult to prove is because it is a subjective element; the honesty or dishonesty of a defendant cannot be decided simply by looking at the defendant’s actions. The actions must be put into context: what was the defendant thinking at the time? The intent of a defendant is almost always the absolute hardest thing for the prosecutor to prove. Additionally, it should be noted a defendant who has taken property but has no intention of converting it for his/her own use is not guilty of embezzlement.
Occasionally, the prosecution will offer for the defendant to plea to the charge of “Attempted Embezzlement”. Although this charge is still a felony, it carries half the normal maximum sentence. Sometimes the prosecution will allow a defendant charged with felony embezzlement to plea to MCL 750.174(3), which is still “embezzlement” but is considered a misdemeanor and is punishable with up to 1 year in jail and/or $2,000 or three times the value of the property, whichever is greater.
In some cases, where a defendant is older than 17 years of age but less than 21 years of age at the time of the offense, (s)he may be eligible for the Holmes Youthful Offender Act (HYTA) (MCL 762.11). HYTA allows for a deferred judgment, meaning that a defendant will receive the status of “youthful trainee.” Upon a successful completion of the trainee program, all charges will be dropped and no public record of the charge will appear. If the defendant does not successfully complete probation, a conviction will enter without a trial and the defendant is re-sentenced. (HYTA is also available for defendants between 21 and 24 years of age, but only with the approval of the prosecutor.)
A defendant convicted under this statute will typically be sentenced according to the Michigan sentencing guidelines. Because these guidelines consider both the nature of the current crime and the past record of the defendant—and because the guidelines are “advisory only” and judges are not required to follow them—it is impossible to predict a likely sentence without taking a look at the specific facts of a defendant’s case and reviewing the past record of a defendant, and even then such predictions are an “educated guess” at best.
1Maximum sentence shown is for a first-time felony offender. Prior felonies make a defendant liable for “Habitual Offender” (“HO”) sentencing enhancement. Thus, for a defendant with one prior felony or attempted felony (“HO2”), the maximum sentence is increased by 50%; for a defendant with two prior felonies or attempted felonies (“HO3”), the maximum sentence is doubled; and a defendant with three or more prior felonies or attempted felonies (“HO4”) faces a maximum sentence of 15 years in prison for offenses with a base maximum sentence of less than 5 years, or a maximum of life in prison for offenses with base maximums of 5 years or more.
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