Breach of Trust With Fraudulent Intent

“Breach of trust” is South Carolina's version of embezzlement.

It is a criminal charge that is often abused either because: 1) Law enforcement doesn’t understand the elements that must be proven; or 2) The “victim” wants to extort money from a person in what would otherwise be a civil dispute.

When are breach of trust charges not valid and what does the state have to prove to get a conviction?

To convict a person of breach of trust, the state will have to prove:

1. That there was a fiduciary, or trust, relationship with the alleged victim;
2. That something was taken from the alleged victim;
3. The property that was taken was being held “in trust” for the benefit of the alleged victim; and
4. That the property was taken with the intent to defraud the alleged victim.

If any of these elements are not met, breach of trust is not the appropriate charge – if there is no probable cause for any of these elements, it’s a wrongful arrest…

In cases where the elements of breach of trust are not present, it may be that another criminal charge is appropriate. Or, as is often the case, it may be that this is a dispute that belongs in civil court, not criminal.

Often, a breach of trust charge results when there is a disagreement with an employer or some other person who feels that they are owed money.

It is illegal and unethical to use the criminal justice system to obtain an advantage in a civil matter, and some cases simply belong in the civil court.

Sometimes breach of trust cases arise when an employee borrows a vehicle and does not return it promptly or when equipment is taken from a job site and the employer blames a worker. Sometimes money comes up missing from the till in a store, and the employee is blamed. What if a homeowner contracts for a new roof and is not satisfied with the quality of the work?

It’s not uncommon for a person who feels that they were taken advantage of or who thinks they did not get the benefit of a bargain that they made with the defendant to contact law enforcement and insist that they make an arrest.

Sometimes, a person will contact a civil lawyer who advises them that the defendant will not pay if they file a lawsuit – but – if the defendant is arrested they will be squeezed and forced to pay restitution by the court. What’s wrong with that?

See above: It is illegal and unethical to use the criminal justice system to obtain an advantage in a civil matter.

The potential penalties for breach of trust are based on the dollar amount alleged to have been taken or the value of the property alleged to have been stolen:

• Breach of trust under $2000 is a misdemeanor punishable by 30 days;
• $2000 to $10,000 is a felony punishable by up to five years; and
• Greater than $10,000 is a felony punishable by up to ten years.

If you believe that you are under investigation by police for breach of trust, do not answer questions or meet with them until you have spoken to your SC criminal defense lawyer. Do not allow yourself to be interviewed by your employer, loss prevention, or business associates if you believe they intend to have you charged.

If you have been charged with embezzlement or breach of trust, or if you suspect you are under investigation, call the Thompson & Hiller Defense Firm at (843) 444-6122 or contact us online to ensure that your rights are protected.