What is Obtaining Property by False Pretenses?
Obtaining property by false pretenses is the most commonly charged non-violent felony in North Carolina. According to the University of North Carolina School of Government, the offense accounted for more than 22,000 criminal charges in 2019 alone.
In North Carolina, obtaining property by false pretenses occurs when a person takes something of value pursuant to a false representation. More specifically, the crime is completed when:
- Someone makes a false representation;
- The representation is calculated and intended to deceive;
- The other party is in fact deceived; and
- The person obtains something of value.
Often times, obtaining property by false pretenses is mislabeled as a “catch-all” offense. However, each of the elements mentioned above must be met for the offense to be committed.
There are several ways the that the crime of obtaining property by false pretenses can be committed. And typically, criminal charges stem from the following types of white collar conduct:
- The execution of a Ponzi scheme or investment scam.
- The creation of a false business to perpetuate fraud.
- The use of forged or falsified documents to obtain payment.
- The passing of a worthless check.
- A false statement to obtain a loan.
- The impermissible use of another’s credit card to obtain goods or services.
Obtaining Property by False Pretenses vs. Embezzlement
The crimes of obtaining property by false pretenses and embezzlement are often mistaken for one another. But obtaining property by false pretenses and embezzlement are mutually exclusive crimes. In other words, a person’s conduct must be only one or the other. The key questions is how was the property initially acquired?
For obtaining property by false pretenses to occur, the person obtains the property through a false representation. But for embezzlement, the person must be entrusted with the property at the outset. It is possible to be charged with both obtaining property by false pretenses and embezzlement.
However, a person can only be convicted of one or the other based on the same conduct.
|Obtaining Property by False Pretense||The property must be acquired unlawfully at the outset, pursuant to a false representation|
|Embezzlement||The property initially must be acquired lawfully, pursuant to a trust relationship, and then wrongfully converted|
Sentencing for Obtaining Property by False Pretenses
Every criminal charge of obtaining property by false pretenses is a felony in North Carolina. Unlike most other crimes, attempted obtaining property by false pretenses is treated the same and is not punished as a lower class of offense. If a person is convicted of either, they will be sentenced under one of two different classes of punishment that are based on value.
If the property obtained or attempted to be obtained is $100,000 or more, then it is a Class C felony. Thus, the punishment carries a mandatory active sentence. Alternatively, if the property obtained or attempted to be obtained is less than $100,000, then it is a Class H felony.
Further, the punishment may carry an active, intermediate, or community sentence. Along with mitigating and aggravating factors, the court will take into account the individual’s prior record.
|Amount Obtained||Level Felony||Minimum Sentences|
|$100,000 or more||Class C||A
|Less than $100,000||Class H||C/I/A
Defenses to Obtaining Property by False Pretenses
It is important to consult an experienced attorney when determining the appropriate defenses to an obtaining property by false pretenses charge in North Carolina. Depending on the facts of the case, the following defenses may be available:
- Merely a breach of contract occurred.
- No false representation was made.
- The crime is not properly charged.
- The criminal investigation is based on inadequate or inadmissible evidence.
- The conduct was permissive.
- Defenses of alibi, duress, automation, accident, or mistake.
About the Author: W. Scott Harkey is a former senior white-collar special prosecutor and the managing attorney at Harkey Litigation. He is a board certified specialist in North Carolina Criminal Law. Harkey has served as lead counsel for some of the most notorious fraud cases in modern North Carolina history – including hundreds of obtaining property by false pretenses cases throughout North Carolina. Click here to learn about some of the notable cases Harkey has handled. Among the cases featured are State v. Campbell, State v. Grizack, and State v. Buck, which are a few of the high-profile obtaining property by false pretenses cases Harkey successfully prosecuted.