A Sentencing Challenge to Embezzlement Cases
I previously wrote a post entitled, Can a Year-Long Embezzlement Constitute One Criminal Episode?
Even though I'm a big believer in pushing the envelope on criminal episode issues, this one is a hard sell. And the reason it's a hard sell is that in most cases (but not all), the embezzlement involves a number of discrete acts -- $2000 one month, $3000 the next -- and each could stand alone.
But it's frustrating that the state can, essentially, create criminal episodes willy-nilly by aggregating in fewer than six month increments in order to maximize the sentence. There is a heads we win/tails you lose quality. Multiple thefts by the same means from the same victim do not constitute one criminal episode unless it's to the state's advantage.
And here's where I've stumbled upon same interesting case law, which may give the argument new life.
Start with State v. Harelson, 147 Or App 556, 938 P2d 763 (1997), which holds that theft can be treated as a continuing offense. That is because the statutory definition of theft includes not only the initial taking, but occurs also when the accused “appropriates, obtains or withholds” property belonging to another. See also State v. Jim/White , 13 Or App 201, 218-19, 508 P2d 462 (1973).
Note this discussion in a very recent case which merged two counts of kidnapping.
- Under our reasoning in Rose, as further elaborated in Harelson, kidnapping is a continuing offense; it is not a discrete act that is complete once a defendant has committed all of the elements of the crime. Like custodial interference, which is committed continually while the defendant retains control of the child, and theft by receiving, which is committed continually while the defendant retains control of the stolen property, kidnapping is committed continually while the defendant retains control of the victim. In other words, kidnapping continues as long as the defendant deprives the victim of his or her personal liberty. Because a single deprivation of the victim's personal liberty is a single violation of ORS 163.225, and, consequently, a single violation of ORS 163.235, merger of defendant's kidnapping counts is not prevented by ORS 161.067(3).
State v. Gerlach, 255 Ore. App. 614, 624 (2013)
So what if your client embezzled $1000 a month for a year from his employer, all of it in cash, and all of it hidden under the mattress. Your client is charged with 12 counts of Theft I. Is it possible under those facts and the case law I've quoted above that the thefts constitute one criminal episode, so that your client is still looking at probation when all is said and done? Can the same be true with facts that aren't tailored so carefully to favor one continuing act? In sum, do you have an argument that could convince the trial court that it is one criminal episode and thereby save your client from a REPO sentence?
I don't know. It would take a lot of work and analysis. And I'm between embezzlement cases right now. But if you've got one of these defendants, it's probably something you'll want to figure out.