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New Mexico Court of Appeals • 1979

State v. Stahl

596 P.2d 275 | 93 N.M. 62

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Takeaway

In short, this case holds that broad responsibility for a workplace does not itself establish entrustment: an employee's unauthorized taking of property reserved exclusively to a manager is larceny, not embezzlement.

Background

The defendant, a store clerk, was convicted of embezzling more than $100. The store used two cash registers and a locked drop-box. Cash from the registers could be deposited through a slit into the drop-box, but only the manager held the keys and was authorized to remove money from it.

When the defendant began his midnight shift, the operating register contained between $50 and $75. During the shift, the defendant was the only clerk on duty and was generally in charge of the store. At about 3:00 a.m., he was absent from the store; the drop-box had been pried open and its money removed. Evidence indicated that he took a total of $612 from the drop-box and the operating register.

The defendant conceded that he had been entrusted with the operating register and that taking its contents could constitute embezzlement. But the State offered no proof that the register contained more than $100, including sales made during his shift. The trial court denied the defendant's directed-verdict motion, reasoning that his responsibility for the store meant he was entrusted with everything on the premises, including the drop-box. The defendant appealed.

Issues

Issue #1

Whether sufficient evidence supported a conviction for embezzlement of more than $100 when the amount exceeding $100 came from a locked drop-box to which the defendant had no authorized access.

Holding

No. The defendant was not entrusted with the drop-box money, so that money could not be used to support an embezzlement conviction exceeding $100.

Reasoning

Embezzlement under New Mexico law requires that the defendant be entrusted with the property taken. To be entrusted means that the owner committed or surrendered the property to the defendant with confidence concerning its care, use, or disposal. Property is not entrusted merely because an employee works near it or has physical access to it.

The defendant was entrusted with the operating cash register because its contents were available for him to use in performing his clerk duties. He did not dispute that taking money from that register was embezzlement. But the record showed only that the register held $50 to $75 when his shift began, and it did not establish that the register's cash, even with later sales, ever exceeded $100.

The drop-box was materially different. Another clerk had deposited its money before the defendant's shift, the box was secured by two padlocks, and the manager alone retained the keys. The defendant had neither permission nor authority to remove, possess, use, or make change from that money. Thus, despite being generally in charge of the store, he had been excluded from the care and disposition of the drop-box contents.

An employee who takes an employer's property that is accessible only through physical proximity, rather than through an entrusted duty of care or control, commits larceny rather than embezzlement. The defendant's forced taking of the drop-box money therefore could not establish embezzlement. Because the State needed that money to reach the over-$100 threshold, the evidence was insufficient and the conviction had to be reversed.