Michigan Criminal Lawyers Blog

Well, it's finally happened. The phrase "As easy as taking candy from a baby" has met its match -- now that Paul Anthony D'Arcy of Onstead has been arraigned in the Adrian District Court for allegedly stealing from a Catholic religious charity.

The criminal complaint charges D'Arcy with embezzling close to $103,000.00 over the course of three years, a 20 year felony. Though the amount stolen will certainly stand as an aggravating factor at the criminal defendant's sentencing proceedings (if any), the crime of embezzlement in and of itself is even more pernicious than mere stealing. That is because the heart and soul of the crime of embezzlement involves a betrayal of trust by a fiduciary. Under current Michigan legal authority, such a person is one who manages money or property, for the benefit of the owner.

The necessary elements of the crime of embezzlement are set forth in MCL 750.174(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 secrets 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".

Another aggravating factor in this matter is the second group of criminal charges lodged against D'Arcy. The Lenawee County prosecuting attorney in Adrian has also accused the criminal defendant of using a computer to commit fraud, MCL 752.794. A related statute, MCL 752.797(3)(e), sets the maximum punishment at 10 years.

Further compounding the criminal defendant's woes is the allegation that he used a financial transaction device to commit the crime. Reportedly, D'Arcy siphoned some or all of the funds into a Paypal account that he controlled, by means of a victim's credit or debit card to which he had access.

Doubtless any assertion that D'Arcy merely misinterpreted the biblical proverb "The Lord helps those whom help themselves" will not stand him in good stead at his criminal jury trial. D'Arcy's Southfield criminal defense lawyer, however, is not without legal defenses, several of which are actually written into the criminal statute with which the defendant is charged.

Because those defenses are embedded within the criminal law, at trial, the Lenawee County prosecutor will effectively need to disprove those matters, beyond a reasonable doubt. In a nutshell, a reasonable doubt is a doubt of any size, big or small, arising out of the facts or lack of facts.

Thus, mere proof that the defendant took the funds will not be enough to convict. The prosecutor must also prove lack of permission, conversion for the thief's own usage, trustee status and specific intent to steal.

Since the burden of proof in a criminal trial never shifts, the prosecutor's inability fully carry that burden is nothing less than an outright win for the criminal defense lawyer.

Manager Charged With Embezzling 100,000.00 form Dominicans, Daily Telegram, 2/18/12

In a world of constantly shifting values and morals - and the all too common complete lack thereof, it's a tale that could easily have been logged in under her personal diary heading entitled "What I Did For Love". But when 42 year old high school teacher Heidi Lewis's story took a wrong turn and landed on the desk of the Bay County Prosecutor, it was filed, instead, in a drawer labeled criminal sexual conduct.

In fact, in a simpler time, consensual sexual contact between unmarried heterosexuals of legal age would have been out of the ambit of the Michigan criminal sexual conduct statutes. As a reaction to a perceived epidemic of sex crimes, however, the Michigan legislature in Lansing passed a raft of laws criminalizing a wider range of sexual behavior. Included in that legislative movement was a set of laws which punished teachers for sexual contact with their students - even if the students were above the age of consent (age 16) and below the age of 18.

Thus, Ms. Lewis now finds herself facing felony charges for alleged sexual contact with several of her 17 year old male students. Reportedly, the incidents took place in the teacher's Jeep and also at various homes of some of the participants.

Two criminal sexual conduct statutes may apply. The necessary elements under the first applicable statute include sexual penetration of a student between the ages of 16 and 18, by the student's teacher - MCL 750.520d(1)(e)(i) and (2), commonly known as criminal sexual conduct, 3rd degree. The maximum penalty for that violation is 15 years in prison.

The pertinent elements under the second potentially applicable statute include sexual contact with a student between the ages of 16 and 18, by the student's teacher - MCL 750.520e(1)(f)(i) and (2), commonly known as criminal sexual conduct, 4th degree. Under that lesser offense, however, proof of penetration is unnecessary. If convicted under that statute, Ms. Lewis faces up to two years in prison. The pertinent two year penalty is deemed a misdemeanor for civil law purposes, but it is treated as a felony for criminal law purposes.

If convicted of the higher charge, Ms. Lewis will be listed on the sex offender's registry for decades. Access to that list is posted on the internet and is available to the viewing public.

If there is any good news for Ms. Lewis in this matter, it may come in the form of a plea bargain. If Ms. Lewis' Southfield criminal defense lawyer is able to negotiate an agreement allowing the criminal defendant to plead to one count of criminal sexual conduct, 4th degree, Ms. Lewis may avoid being listed on the Michigan sex offender's registry. She may also become eligible for expungement of her criminal record.

Under a related statute, MCL 780.621, a person convicted of criminal sexual conduct in the 4th degree, may have her conviction set aside after the expiration of at least 5 years. A conviction for criminal sexual conduct in the 3rd degree, however, may never be set aside under that statute.

Jury Contamination Delays Trial of Former Bay City Teacher Charged with Sex With Students, Bay City News, 2/8/12