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Old 03-08-2009, 12:37 PM   #1 (permalink)
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Breach of Trust...Help With Process

I'm going to try and be as brief as possible here, but I could really use some advice. I am over 30, and have never been in trouble for anything before this.

***Last summer, I was arrested at my bartending job for Breach of Trust with Fraudulent Intent (South Carolina version of embezzlement) for apparently taking $16.50 that wasn't mine. I have no recollection of the particular event. A MONTH WENT BY between the date of the alleged incident and the day I got arrested, all the while I continued to work each day with no idea that anything was wrong.
***My owner (A bitter multi-millionaire who has a track record of firing and suing people) has a 20-second video of me apparently stealing the $16.50. Along with the video, there is a copy of the register transaction to coincide with the time of the video. The sale in question is not listed.
***The video is short and grainy, and it shows me doing about three different things at once (it is always a busy place and we always run around like crazy). There are a few different ways I can explain the video and the lack of timely sales transaction.
***Lots of people quit over what happened (fellow bartenders, managers, and even the general manager of the company). I have some former coworkers, including the general manager, who are willing to testify on behalf of my character.

OKAY...my unique situation is this. It has been over seven months and I AM JUST NOW getting a court date for something called a "roll call" on March 18. This is just a court formality from what I understand, but I am hoping to learn more at that point as far as when this will be taken care of. If this goes to trial, I will owe my lawyer another $1,500 on top of the $1,500 I gave him initially. I will have an impossible time affording this if it comes to that point.
I have had a rough time finding work since this happened last summer. I moved away to live with a relative this winter after it happened and have just returned to S.C. to "deal with the situation." I am hoping I can find a job here until it's settled, and squeek by as best as possible.
This whole ordeal has put my life into perspective and this winter I decided to get my act together and enlist into the Navy. This is a process I would have already started if it wasn't for this ongoing court mess, and I'm just sort of rotting away waiting for this to end.

Is it possible to try and plead guilty to a lesser charge? I'd hate to do this, but I just don't know what more I can do and it would at least be over with. I don't have the money to go to trial, and moving back here for who knows how long was solely based on this criminal proceeding. I am up against a multi-millionaire and his vast amount of money and lawyers, and I feel helpless and lost.

Last edited by StickmanTen; 03-08-2009 at 01:23 PM.
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Old 03-08-2009, 05:14 PM   #2 (permalink)
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I am in the upstate of SC.

Before I attempt to answer your question, there is one thing I wanted to mention as an FYI---breach of trust with intent is NOT the same as embezzlement. Under South Carolina law, Section 16-13-220, embezzlement deals with the taking of public funds, not private. So, the two terms are not interchangable.

In any regard, here is the statute under which you were charged.


SECTION 16-13-230. Breach of trust with fraudulent intent.
(A) A person committing a breach of trust with a fraudulent intention or a person who hires or counsels another person to commit a breach of trust with a fraudulent intention is guilty of larceny.

(B) A person who violates the provisions of this section is guilty of a:

(1) misdemeanor triable in magistrate's court if the amount is [COLOR=red]one thousand dollars or less.[/COLOR] Upon conviction, the person must be fined or imprisoned not more than is permitted by law without presentment or indictment by the grand jury;
(2) felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than five years if the amount is more than one thousand dollars but less than five thousand dollars; (3) felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than ten years if the amount is five thousand dollars or more.

The charge against you is a misdemeanor. Regardless of how bitter and old and mean you are, who needs or wants to pay attorneys to press charges for a misdemeanor charge?

I would argue your case and offer to make restitution----in the event that you are not acquitted, then this charge can be expunged from your record pursuant to South Carolina law, it is eligible.

I know that may not be what you want to hear, but if you want to avoid the cost of an attorney, that may work for you. The prosecutor knows you can just have the charge expunged even if he "wins". I would talk to him about dropping the charges upon restitution.

You mentioned pleading down--how do you plead down from this charge? To what did you want to plead?

One other thing--he has to PROVE you are guilty--you do not have to prove you are innocent. From what you have said here, there is reason to believe the incident was an honest mistake---"Who steals 16 bucks when there is opportunity to steal much more?" (rhetorical question) It is reasonable (again from what you said ) to assume it was an oversight, not a theft. Character witnesses are not necessary in a criminal a trial. They must prove beyond a reasonable doubt that you committed this crime. From your accounting, it sounds like there is quite a bit of reasonable doubt, videotape notwithstanding. And, like I said, this is a misdemeanor charge ou can easily have removed from your record if by chance you are found guilty. No need to pay an attorney to do it for you.
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Last edited by GentleGrace; 03-08-2009 at 05:18 PM.
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Old 03-09-2009, 12:13 PM   #3 (permalink)
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Thank you for the helpful information...


Quote:
Originally Posted by GentleGrace View Post
I would argue your case and offer to make restitution----in the event that you are not acquitted, then this charge can be expunged from your record pursuant to South Carolina law, it is eligible.

I know that may not be what you want to hear, but if you want to avoid the cost of an attorney, that may work for you. The prosecutor knows you can just have the charge expunged even if he "wins". I would talk to him about dropping the charges upon restitution.
How, when and where exactly woud I "argue my case" without my attorney? In one week, I am scheduled to appear in court for the first time since being arrested (for a "roll call"). As of right now, I owe my attorney nothing more unless this goes to a trial. What are the chances of dealing with is without going to a trial?

Also, how can this be "expunged" even if I were to lose?


Quote:
You mentioned pleading down--how do you plead down from this charge? To what did you want to plead?
I'm not sure what I was saying, I'm just desperate to get this over with and get on with my life.

Quote:
...And, like I said, this is a misdemeanor charge you can easily have removed from your record if by chance you are found guilty. No need to pay an attorney to do it for you.
.

I would have no idea how to do this without an attorney. As mentioned, I have NEVER been in trouble for anything in my entire life and this whole process has been foriegn to me.

Thanks again

Last edited by StickmanTen; 03-09-2009 at 12:18 PM.
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Old 03-09-2009, 12:49 PM   #4 (permalink)
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You show up in court and the judge tells you with what you are charged. You enter a plea, not guilty or guilty.

The other side (prosecuting side) will attempt to persuade the court of your guilt. When it is your turn to speak, you will assert why you are not guilty. Use THEIR videotape and assert things such as "As you can see, this is a busy detailed job. It is easy to overlook a transaction" ( I know nothing about your job, I am just giving you an example." The whole exchange is very informal---it may just be you and the judge and the prosecutor, and can even be in the judges chambers ( depending on the jurisdiction). If you want more time you can request a jury trial but I would not attempt this. 1. It can drag this out for years and 2. a jury can be harder to convince than a judge.

Be prepared. Write down reasons you have to prove you are innocent.

1. Point out how absurd it is.....example: the dollar amount is almost silly---say, "I handle hundreds of dollars a day---and I have been an employee with no past criminal record for X-number of years, etc. It is more reasonable to assume that this was an oversight, NOT a theft.

2. The court sees repeat offenders CONSTANTLY. Reiterate that you are a hard working man, that you are enlisting in the Navy, and that you want this cleared off your record so you can get on with your life. This shows you have been a good citizen in the past, and intend to do so in the future. Lets face it--most people don't risk a theft charge for $16.50.

3. Keep reasserting that it is REASONABLE (use the word REASONABLE--it is a key word) to assume that this was an OVERSIGHT. State, I am aware that these transactions are videotaped and an attempt at theft is foolish---in particular for this paltry amount. It was an oversight, one I am more than willing to make restitution for in the amount of $16.50.

In order for there to be a crime, two things must be present.

1. Mens rea (latin meaning, evil mind, or evil intent)
2. Actus rea ( lating meaning evil or wrong act).

I would tell the judge that in this case, there is no MENS REA--evil intent. While it appears as though a guilty act occurred (actus rea) no MENS rea occurred (your intent was not to steal--it was an oversight).

The state has to prove beyond a reasonable doubt--and it IS reasonable to assume this COULD have been an oversight. Your past lack of criminal activity, your awareness that this is being video taped, your goals for the future, etc. ALL point to and support REASONABLE DOUBT.

Assert it is REASONABLE to see that this oversight could happen given the circumstances. Refer to the tape--is it a busy time? Are there a lot of people around? Use it to your advantage.

Be brave, be confident.

Now, IF perchance they decide you are guilty anyway (which I cannot see them doing, unless you have omitted some critical piece of evidence here) you can have this charge ( misdemeanor) removed from your record. Under South Carolina law, your first offense (there are some restrictions, such as s3xual offense, traffic tickets, etc) can be removed from your record if it is your ONLY offense. It is a matter of paperwork---and a filing fee usually around $75.

Gather your thoughts. Write down the things I've told you. This is an easy case----I'm sure the attorney would be glad to take your money---he knows the prosecutor isn't going to play hard ball with a long shot misdemeanor charge that is going to be immediately erased from your record anyway.

Let me know what else I can do to help you.
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Old 03-10-2009, 04:08 PM   #5 (permalink)
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Thanks again. You have given me some great information. My lawyer called today and wants to meet me a few hours before my "roster call" next week. He also wants me to bring in 5 coworkers (3 character witnesses and two fellow bartenders who can analyze the video on my behalf). He seems to think that this WILL go to trial, a week later.

Am I getting milked out of another $1,500? Can I really do this by myself? At one point in this process will the opportunity to express the above reasonale-doubt take place? The decision to perhaps drop the case? During my roster call?
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Old 03-10-2009, 05:23 PM   #6 (permalink)
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Quote:
Originally Posted by StickmanTen View Post
Thanks again. You have given me some great information. My lawyer called today and wants to meet me a few hours before my "roster call" next week. He also wants me to bring in 5 coworkers (3 character witnesses and two fellow bartenders who can analyze the video on my behalf). He seems to think that this WILL go to trial, a week later.

Am I getting milked out of another $1,500? Can I really do this by myself? At one point in this process will the opportunity to express the above reasonale-doubt take place? The decision to perhaps drop the case? During my roster call?

You need to do what you think is best---but, your attorney is happy to do this because it is an easy win, in my opinion AND in the event he DOESN'T win, he can easily have this removed from your record. HOWEVER, the fifteen hundred dollars isn't much to pay for peace of mind if it helps you and makes you feel better.

YOU need to decide if you want to represent yourself or not. It will become apparent when it is your turn to speak and when it is not. I am not sure of this "roster" call---I'm not sure what that means, even. Did he call it that? Or is there another name for it?

If he plans to call the other witnesses, I hope he has subpoenaed them already---time is short. And just because they say they will be there doesn't mean that they will actually show up. Did he subpoena them? If you are paying him that kind of money HE should have or should be sending subpoenas to the witnesses, so they are required to appear.

I honestly don't see this going to trial. I think your attorney will say, "Wait a moment--I will be right back" and will go to the prosecutor--they will exchange words and he will come back and say, "Ok, it's all taken care of". And you leave. I suspect he will say the things I have pointed out here and will add that your intention is to have it expunged anyway---so why bother. More work for them to have it removed. He makes money for ten minutes of his time.

I have seen it happen dozens of times. Of course, I may be wrong about your case---maybe it is more complicated than it seems. But for less than twenty bucks? Pfftt........I don't really understand what the hoopla is about or why they are pursuing this. Even if the guy has a lot of money--it is still the STATE prosecuting you---and frankly, I am surprised they are.

IS there something I am missing ? Some piece you have omitted that may change my feeling about all of this? Or is it really as simple as it seems?

Also, ask your attorney about expungement. ASK if his fee INCLUDES filing that paperwork and the fee. IF NOT, ask him WHY not. They LOVE cases like this. Easy in, easy out.

Let me know what happens.
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Old 03-11-2009, 09:50 AM   #7 (permalink)
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Quote:
Originally Posted by GentleGrace View Post
...I am not sure of this "roster" call---I'm not sure what that means, even. Did he call it that? Or is there another name for it?
He has refered to it both as a "roll call" and a "roster call." He said on the phone the other day (third time I've spoken to him since this all started) that a trial will probably take place the following week. (The roll call is a week from today).

Quote:
If he plans to call the other witnesses, I hope he has subpoenaed them already---time is short. And just because they say they will be there doesn't mean that they will actually show up. Did he subpoena them? If you are paying him that kind of money HE should have or should be sending subpoenas to the witnesses, so they are required to appear.
No, I had mentioned back in September that I could get some coworkers together to help me, and he said that would be good. But it was just the other day on the phone that I found out he wants to meet with me a few hours before the roll call, as well as the 5 coworkers (mentioned in previous post). As of right now, he does not even know their names. I would feel uncomfortable having my friends get ordered around, though...

Quote:
...I may be wrong about your case---maybe it is more complicated than it seems. But for less than twenty bucks? Pfftt........I don't really understand what the hoopla is about or why they are pursuing this.... ...IS there something I am missing ? Some piece you have omitted that may change my feeling about all of this? Or is it really as simple as it seems?
By trying to be brief in my original post, here is what I left out. I'd be interested in hearing your thoughts...

There was a mystery shopper - a woman - who "bought" three drinks from me for $16.50 on the video tape with a $20 bill and a "keep the change" (the total coast being the $16.50 in-question). She WAS NOT able to see the register screen from where she was standing. This woman had been "lurking" at the bar for about two weeks, apparently watching all the employees. After the incident, this same lady becomes the new Bar Manager. She is now the General Manager of the company (she is also a former girlfriend of the owner from approximately 20 years ago).

At any rate, included in her signed statement is the exchange of service of the three drinks, and then the fact that it's not on the register transaction to coincide with the video, etc etc. Also stated is that "in other situations...it has been observed (me) making what appeared to be fradulent transactions..."

If there was proof of anything else, wouldn't they have included that in my charges with more video? It just makes me sound worse. Also, the very last sentence in her statement was a total curveball..."(me) has also been overheard stating that he is in to online poker." I do like playing poker, as do my friends, and she obviously overheard me talking bout it one day while "lurking," and is now using that to make it sound like I have a gambling/money problem. Amazing. Can they say these things? The proofless "other instances of fraudulent transactions" and the image-buster poker angle?

Other than this "witness" lady, I don't think there is any other pertinent information other than the writeup from the police officer, documenting the situation from the time the owner had approached them. Apparently the police had access to the cameras during a two-week stretch, and were aware of the mystery shopper. The statement also mentioned "suspicious activity" from other bartenders, but nothing concrete.

Thanks again

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Old 03-11-2009, 06:19 PM   #8 (permalink)
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Quote:
Originally Posted by StickmanTen View Post
He has refered to it both as a "roll call" and a "roster call." He said on the phone the other day (third time I've spoken to him since this all started) that a trial will probably take place the following week. (The roll call is a week from today).



No, I had mentioned back in September that I could get some coworkers together to help me, and he said that would be good. But it was just the other day on the phone that I found out he wants to meet with me a few hours before the roll call, as well as the 5 coworkers (mentioned in previous post). As of right now, he does not even know their names. I would feel uncomfortable having my friends get ordered around, though...



By trying to be brief in my original post, here is what I left out. I'd be interested in hearing your thoughts...

There was a mystery shopper - a woman - who "bought" three drinks from me for $16.50 on the video tape with a $20 bill and a "keep the change" (the total coast being the $16.50 in-question). She WAS NOT able to see the register screen from where she was standing. This woman had been "lurking" at the bar for about two weeks, apparently watching all the employees. After the incident, this same lady becomes the new Bar Manager. She is now the General Manager of the company (she is also a former girlfriend of the owner from approximately 20 years ago).

At any rate, included in her signed statement is the exchange of service of the three drinks, and then the fact that it's not on the register transaction to coincide with the video, etc etc. Also stated is that "in other situations...it has been observed (me) making what appeared to be fradulent transactions..."

If there was proof of anything else, wouldn't they have included that in my charges with more video? It just makes me sound worse. Also, the very last sentence in her statement was a total curveball..."(me) has also been overheard stating that he is in to online poker." I do like playing poker, as do my friends, and she obviously overheard me talking bout it one day while "lurking," and is now using that to make it sound like I have a gambling/money problem. Amazing. Can they say these things? The proofless "other instances of fraudulent transactions" and the image-buster poker angle?

Other than this "witness" lady, I don't think there is any other pertinent information other than the writeup from the police officer, documenting the situation from the time the owner had approached them. Apparently the police had access to the cameras during a two-week stretch, and were aware of the mystery shopper. The statement also mentioned "suspicious activity" from other bartenders, but nothing concrete.

Thanks again
Im not sure if I understand---she bought three drinks with a twenty dollar bill and told you to keep the change, but they say you kept the amount of the drinks?

Aside from that----let me see if I understand the rest.

Basically, someone --some one of the powers that be, so to speak, had a feeling someone was stealing, OR they wanted to SEE if someone was stealing. So....... they did this little MINI STING, so to speak. And now that the police are involved, and this new bar manager ( how convenient ), they have a vested interest in making SURE these charges stick--after all, these folks wouldn't have wasted their time for nothing right? ( scarcasm)

Knowing what you have told me, I would DEFINITELY hire an attorney. HE can point out things like the prejudicial comments this woman made ---it doesn't matter if you play online poker---that is a prejudicial comment. There is NO factual link between THIEVES and POKER players--that is simply a comment to inflame and prejudice the judge and or jury.

Go with this attorney, win this case and sue the HADES out of them for false arrest and malicious prosecution.

Let me know what happens. I am interested.
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Old 03-12-2009, 01:32 PM   #9 (permalink)
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You have given me some hope here, thanks.

I have a question regarding this going to an actual trial. I have never had to hire an attorney before, so this might be a silly question, but should I worry about my lawyer WANTING to get this thing that far, so he earns an extra $1,500? If that happens, I will NOT be able to keep him for the trial. I just flat-out can't afford that right now (in large part thanks to this mess, losing my job, and having a difficult time finding someone to hire me because of it). What will happen at this point? Public defender? Would this cause the process to take even further or would things still be on the same time-track?

I just want to make sure everything possible is done BEFORE a trial to get this thing cleared, and from the helpful insight you have provided, it seems it should be able to. I assume, since my lawyer has said that this will go to trial a week after my "roll call," that the only chance to get this dropped pre-trial will be at this "roll call" next week?

Does "roll call" perhaps refer to some sort of jury selection? I know when I first spoke with my lawyer last year, he said a jury would be much better than going before a judge.
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Old 03-12-2009, 02:55 PM   #10 (permalink)
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Judges want to know if a settlement has been reached. They do roll call just to find out status.
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