9.1-6 Larceny by Embezzlement -- § 53a-119 (1) and §§ 53a-122 through 53a-125b
Revised to April 23, 2010
Note: The degree of the larceny is determined by the value of the property stolen. See § 53a-122 (first degree); § 53a-123 (second degree); § 53a-124 (third degree); § 53a-125 (fourth degree); § 53a-125a (fifth degree); § 53a-125b (sixth degree). The dollar amounts for the degrees of larceny were increased as of October 1, 2009. See the table in Introduction to Larceny for the values in effect prior to that date.
The defendant is charged [in count __] with embezzlement in the (first / second / third / fourth / fifth / sixth) degree. The statute defining this offense reads in pertinent part as follows:
a person commits embezzlement when (he/she) wrongfully appropriates to (himself/herself) or to another property of another in (his/her) care or custody.
For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:
Element 1 - Property was in the
care or custody of the defendant
The first element is that the defendant must have received the property into (his/her) care and custody. This means that (he/she) must have received the property with the understanding that (he/she) would keep it in (his/her) possession or control or that (he/she) would relinquish control of it only for the purpose for which the property had been entrusted to (him/her). <Describe the allegations of custody.>
[<If there is an issue as to whether the parties were in the relationship of debtor/creditor:> The relationship between a debtor and creditor does not give rise to embezzlement, even though the debtor may receive the creditor's money and use it for a different purpose than contemplated. The loan was received by the debtor for the purpose of using the money for (his/her) own benefit, not that of the creditor.]
Element 2 - Wrongfully
The second element is that the defendant wrongfully appropriated the property for (himself/herself) or another person. A person who has been entrusted with the care or custody of property has a duty to use the property only for the purpose intended. The crime occurs when a person departs from this legal duty to use the property only for the benefit of the owner, and instead appropriates it to (his/her) own use or that of some person other than the owner, contrary to the purpose for which (he/she) was entrusted with the property.
"Wrongfully" as used in the statute means without any legal justification or excuse. "To appropriate property of another to oneself or a third person" means <insert as appropriate:>
to exercise control over it or to aid a third person to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit. This means that the property has remained in the possession of the defendant, and the owner was permanently deprived of the use or control of the property, or deprived of it for so extended a period of time or under such circumstances that the major portion of the economic value or benefit of the property had been acquired by the defendant or some third person.
to dispose of the property for the benefit of oneself or a third person. The act of disposition is itself sufficient to constitute an appropriation under the statute. To dispose of property means to put it beyond the control of the possessor. A sale or other transfer of property would be a disposition of it. A use of the property that substantially consumes it or permanently transforms its original nature would be a disposition of it.
[<If the disposition was temporary:> When there has been a disposition of the property, it does not matter whether it is permanent or temporary or whether the property may ultimately have been restored to the owner with no diminution in value. Even a temporary disposition of the property resulting in no loss to the owner, accompanied by the necessary fraudulent intent, would support a charge of embezzlement.]
[<If property was appropriated for security for a loan:> It would be a disposition of the property if a person pledged property in (his/her) care or custody as security for a loan to (himself/herself) or another, even if (he/she) expected ultimately to get the property back by paying off the loan and restoring the property to the owner. The unauthorized transfer of the property for such a purpose would constitute a disposition of it even though the embezzler may have retained some rights to the property under the conditions of the loan agreement.]
Element 3 - Larcenous Intent
The third element is that at the time the defendant took the property, (he/she) had the specific intent to appropriate it to (himself/herself) or a third person. A person acts "intentionally" with respect to a result when (his/her) conscious objective is to cause such result. <See Intent: Specific, Instruction 2.3-1.> The defendant need not have intended to permanently deprive the owner of the property. (He/She) need only to have appropriated the property to (his/her) own use.1
Element 4 - Value of the
The fourth element is that the property had a value that <insert as appropriate:>
First degree: exceeded $20,000.
Second degree: exceeded $10,000.
Third degree: exceeded $2,000.
Fourth degree: exceeded $1,000.
Fifth degree: exceeded $500.
Sixth degree: did not exceed $500.
<See Larceny, Instruction 9.1-1, for a full explanation of this element.>
In summary, the state must prove beyond a reasonable doubt that the defendant 1) received the property into (his/her) care and custody, 2) (he/she) subsequently wrongfully appropriated the property to (himself/herself) or another person, 3) (he/she) did so with the specific intent to appropriate the property to (his/her) own use or to dispose of it, and 4) that the value of the property was <insert value according to degree charged>.
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of
embezzlement, then you shall find the defendant guilty. On the other hand, if
you unanimously find that the state has failed to prove beyond a reasonable
doubt any of the elements, you shall then find the defendant not guilty.
1 "To appropriate" for embezzlement means either to intend to deprive permanently or to dispose of the property for the benefit of oneself or others. State v. Wieler, 35 Conn. App. 566, 577 (1994), aff'd, 233 Conn. 552 (1995) (court properly refused defendant's request to instruct on intent to deprive permanently, when state had not proceeded under that theory). "The crime of embezzlement is consummated where . . . the defendant, by virtue of his agency or other confidential relationship, has been entrusted with the property of another and wrongfully converts it to his own use." State v. Lizzi, 199 Conn. 462, 467 (1986).
2 If the victim is over the age of sixty years, blind or physically disabled, it is second degree larceny regardless of the value of the property. General Statutes § 53a-123 (a) (5). See Larceny of an Elderly, Blind, or Physically Disabled Person, Instruction 9.1-9.
"Embezzlement is a purely statutory offense, rather than a common-law crime." State v. Wieler, supra, 35 Conn. App. 577.
A corporate stockholder is not the
"owner" of the corporate property, so he could be held liable for embezzling
from the corporation. State v. Radzvilowicz, 47 Conn. App. 1, 18-19,
cert. denied, 243 Conn. 955 (1997).