First, it is important to note what the word “constructive” means for purposes of the law. In the context of criminal law, “constructive” means “that which is interpreted,” i.e. treating a situation as if it were actually so.
For example when it comes to possession of an item, actual possession of a car would be sitting in the car, but constructive possession of the car would be the possession of the keys to the car, which would allow one to take possession of the car at any time, without first obtaining consent.
Larceny is a type of theft crime. Larceny is defined as an illegal taking of another person’s property with an intent to permanently deprive the lawful owner of the property. Thus, constructive larceny typically occurs when an individual takes another person’s property, but the act of the taking on its face does not appear like an illegal/felonious taking.
However through the constructive interpretation of the taking party’s actions, it is presumed that they intended to illegally take another’s property to use as their own. In short, it can be inferred from the criminal party’s actions that they intended to steal the property once they had or were able to take possession of it.
What Are Examples of Constructive Larceny?
As an example, imagine one person lending another person their high end shoes or designer jacket to wear at an event. If the person that was lent the items intends to keep them, instead of returning them to their proper owner, they may be charged with constructive larceny depending on their conduct. Once again, the prosecution must prove beyond a reasonable doubt that the person that was lent the items intended to keep the items permanently for their own use.
Another example would be if an individual asks for another person’s car keys, with an intent to steal the individual’s car later that night. If the individual gives the person their keys, say for the purposes of driving them home, then the person that was lent the keys may be charged with constructive larceny if their intent was to steal the individuals car and permanently deprive the vehicle owner from using the vehicle. In this example, the defendant may be charged with a lesser form of theft, such as embezzlement or fraud, based on how the court or jury interprets their actions.
What Are the Criminal Elements of Constructive Larceny?
As noted above, in order to charge someone with the crime of constructive larceny, the prosecution must prove the elements of constructive larceny, beyond a reasonable doubt. This means that the criminal prosecutor must prove:
- That the defendant removed goods or property from the rightful owner, without the owner’s consent;
- The goods or property were actually carried away from the rightful owner; and
- The defendant intended to steal the goods or property, with an intent to permanently deprive the lawful owner of the property.
What Is the Distinction Between Theft Crimes and Fraud/Embezzlement?
As mentioned above, it is important to note the distinction between a theft crime (which encompasses constructive larceny) and fraud/embezzlement. Fraud occurs when an individual obtains consent through deception. However, when the facts are not clear to prove that the individual intended to defraud another, that individual will likely be charged with constructive larceny, as their actions could be interpreted as a means of illegally taking the item with an intent to permanently deprive the rightful owner.
However, embezzlement occurs when an individual is trusted with access or possession of items, but then carries the goods or property from the possession of the rightful owner. As an example, if a store clerk takes money from the register, that individual had consent of the store owner to handle the money in the register, but the act of taking the money would constitute embezzlement.
As can be seen, the nuances between theft and fraud/embezzlement often come down to an examination of consent. Where there is no consent to the taking or handling of the goods or property, the offending party will more than likely face a charge related to a theft crime.
Where the offending party’s actions are inferred to be acts meant to illegally take another’s property and permanently deprive them from the item, then they will likely be charged with constructive larceny. Going back to the car keys example, if the offending party were to be found in a different state driving the motor vehicle that they accessed using the keys, they would likely face a charge of constructive larceny.
As for the clothes example, if the borrower told their friend that they were never going to return the clothes, and then took steps to sell the high end wear, they would likely face a constructive larceny charge.
How Is Constructive Larceny Different from Normal Larceny?
As discussed above, constructive larceny is very similar to the crime of embezzlement. However, the crime of embezzlement often involves the demonstration that the rightful owner of the property that was embezzled had a relationship of trust with the individual accused of embezzling the property.
Thus, embezzlement charges often occur when there is a relationship of trust between the offender and the rightful owner. The most prevalent example of a relationship that may lead to an embezzlement charge is an employee-employer relationship. However, constructive larceny can occur without such a relationship.
With normal larceny, often sometimes referred to as common theft, the offending party obtains direct possession of the property through criminal means, such as by simply taking the property with an intent to permanently deprive the owner. However, with constructive larceny, the offending party may have had the owner’s permission to possess the property temporarily.
Another example is the owner may have entrusted the offending party with access to a piece of property that also allowed the defendant to access other pieces of goods or property. For example, if the owner allowed the offending party access to their closet to dress for an event, but the offending party took items from the closet with an intent to permanently deprive the owner. Once again, it is the offending party’s intentions and conduct once they have possession of the property that will be used by the prosecution as evidence to prove the elements of constructive larceny.
What Are the Penalties for Constructive Larceny?
Penalties for constructive larceny typically mirror the penalties for larceny. Typically, constructive larceny results in a misdemeanor charge, which is punishable by a small fine (such as $500), a short time in jail (less than one year), or a combination of both. However, the charges for constructive larceny will increase based on the cost of the goods or property that was stolen.
For instance, if the offending party obtained goods that were valued at over $50,000.00, then a constructive larceny charge may be escalated to a charge of grand theft. Penalties for grand theft are typically large fines ($10,000 or more), incarceration for at least one year in a federal prison, or a combination of both.
Do I Need An Attorney For Issues Associated With Constructive Larceny?
If you are facing charges of constructive larceny, it is important that you immediately contact an experienced and local criminal defense attorney. An experienced criminal defense attorney will be most knowledgeable in terms of your state’s specific laws on constructive larceny.
An attorney will also be able assert any relevant legal defenses on your behalf. Additionally, your criminal defense attorney will also be able to represent you in court, as needed.