Larceny Or Civil Court?

[Daiki]

Hello,

I am 21 and currently live in NC. My father and his wife live in the same state and county(Iredell) as I do but srperately from me for about three years now. Recently my father told me he was donating items because they were moving(within county). Among the items was a drum a drum set that I have invested over $1000 into. Initially he purchased the basic kit, but I have maintained it, refurbished it, and it was given to me when he left our home during his divorce. The set is pretty much an entirely new kit since when it was originally purchased. I moved it to his new home so that my brother, dad, and I could play music together, since moving drums is very difficult, he lives far away and I live in an apartment. I Told him not to donate them, but he proceeded to do so for a variety of reasons to please his wife and church. Now I lost my kit and any money I invested into it. A law enforcement officer told me it is considered larceny and I should file with the magistrate but he was worried about the fact that it was at my father's home. He has refused to reimburse me for even $450 of the drums cost, or negotiate. What could I do going forward legally to obtain the full value of my property? Should I file in the county so they hold a levy against him? Or is it a civil court matter? I will not be able to afford an attorney. Thank you do much for any information or advice!

John

[Snowden]

Hey there, John!

Let me start by saying that I was not a cop in NC.  Laws vary from state to state; what may be illegal in one state may be legal in another.  Having said that I did   look up the state statute book for NC.  State statute books contain all of the laws for each individual state and all states have their own statute book.  NC calls theirs a “General Statutes” book.  If you want to see it for yourself, they have a copy online.  The statute books are frustrating reading unless you’re used to reading it.  “Legalese” is almost like learning a second language.  

Based solely on what you wrote to me of your situation, the NC statute for theft/larceny shows that your father did, indeed, commit a theft.  Unless there were extenuating circumstances(I’ll get to them at the bottom of this reply), even if your property was at another person’s home, they have no legal right   to dispose of said property.  They cannot just treat the property as if it were their own and do with it whatever they wanted, nor can they deprive you of the property and the value of said property.

***Above $1,000 is a “Class H” felony in your state.  

If you wanted to take this a step further, dad also committed “dealing in stolen property.”  Then, if you wanted to go even further   with the issue(as in, be completely unemotional and just use logical, legal means to look at the situation), if   your father obtained any kind of receipt for the drum set, where he signed his name on the receipt, then your father also possibly committed the crimes of forgery and uttering.  

NOTE:  I did not look up the NC statute for forgery and uttering.  Those last two crimes are going by the statutes of my   state.  

** Forgery is when you sign your name to a document stating that you had a “legal ownership” of the item you were passing to someone else.  Uttering is the actual, physical action of passing that document from your hand to another hand.  

To bottom-line it for you and break each of the crimes I listed above I’m going to list the crime and then apply it to your situation:

1.  Larceny:  knowingly depriving a person of their property, either temporarily or permanently.  When your dad made the decision to take what was legally yours   and give it to another despite your wishes, he committed theft/larceny.

2.  Dealing in Stolen Property:   knowingly   giving or selling the property of another when you have no legal right to do so.  

* So when dad transported your property--against your wishes--and gave and/or sold it to another entity or individual, he committed the crime of dealing in stolen property.

3.  Forgery:  signing a document which presented dad as the owner of the drums that he was giving away or selling.

** If he gave or sold the set to his Church and the Church gave him a receipt for that set “for tax purposes”(as Churches generally do since that charity is a tax write-off), well, then dad’s name is on that receipt, along with the dollar amount of the “charity” and then his signature attesting to said charity…

4.  Uttering:  this is when dad physically gave or accepted that receipt(as in, it passed from one hand to another), with the receipt showing he had the right to give/sell the property…

All four of these crimes are felonies.  

Now here are the extenuating circumstances I spoke of earlier:

If I were the detective investigating this, before I charged your dad, I would want to know more information.  I would want to know:

1.  Your dad initially bought the set, you added to it, and you used it and maintained  it.  By rights, the set still belongs to your dad.  So did you and your dad both have the understanding that the drum set belonged to you?  

*** If I were asking your dad this, I’d also say, “was your son supposed to take the set with him and you just got tired of having it at the house?”(or some question to that effect). If your dad told me yes, he was just “holding” the set for you, then he has basically just admitted that the drum set was yours.  I’d then ask a couple more questions until I pinned your dad down to actually saying that the set was yours.  However, if your dad said “no, the set was never John’s, he knew he was just allowed to use it here at the house.”  Well, if that was dad’s answer to me, I’d still ask a couple more questions but then, no, this would not be theft/larceny. I would then come back to you and tell you that it was your word against his and there is no physical evidence that proves your word or his, your best option would be to sue him in Small Claims Court.   

2.  IF it was understood that the drum set was yours to take with you when you left the home, did you and your dad have some kind of agreement where he was storing the set until you had a place to put it?  

** If this is the case, then we are back to dad having committed larceny when he got rid of the set.

** If he was storing it for you, he cannot legally dispose of your   stored property unless he goes through specific legal procedures.  If he did not take these legal steps, then he committed theft/larceny.  

3.  The fact that the drum set was kept at dad’s house for three years   after you moved is an issue.  Unless you and he continually talked about the set or continually agreed that it was okay for the set to be there until you could move it, then the drum set could   be considered “abandoned property.”  

** A basic definition of “Abandoned Property”:  When the owner of property leaves that property in a location(owned by someone else) for an extended period of time without taking action toward retrieving the property or reimbursing the owner of the location for the storage of the property.  

** If you have still been using the drum set for those three years and your father had full knowledge that you were using the set, then it’s not “abandoned property.”  

** But even if your dad tried to defend himself by saying you abandoned the set and he was tired of looking at it, he would still have to prove that he made repeated attempts to have you retrieve the property before he(or the law) would consider that set as abandoned.  

Would it be easier(and less emotionally traumatizing) to just sue him in civil court?

Yes.  From the details you outlined, you have a good case to at least   receive the $450.00.

You don’t have a lawyer so what should you do?

There are “Small Claims” courts all over the county and in each state.  You go up to the court house and swear out a “complaint” against your dad.  Sometimes there is a fee involved(normally around 50.00) and sometimes it is free.  Once you fill out the complaint, you and your dad are given a court date to appear before the judge.  If you’ve ever watched Judge Judy or Judge Joe Brown you’ve seen small claims court cases in action.  You don’t need a lawyer in Small Claims Courts(and they aren’t allowed to be there, anyway).  You talk straight to the judge, the judge questions you & your dad, and then the judge decides what happens.

** In a Small Claims Court, the maximum amount that can be awarded is 5,000.00(in most states).  In some states, the amount is 3,000.00.  Either way, the amount is within the dollar amount you are seeking as restitution from your dad.  

Okay, one last item, John:   Before   you take this legal action, decide if it is really, truly   what you want to do.  Yes, you have a good case(criminal or civil).  Yes, you would feel temporarily vindicated when you won(criminally or civilly).  However, the mental and emotional damage this could do to both you and your dad will last for years   and possibly, cause a rift between the two of you that remains for the rest of your lives.  That’s pretty serious.  Ten, twenty years from now, when your kids want to know their grampa but can’t, you’re going to have to explain to them why that is.  

A very wise mentor of mine once told me “Pick your battles.”  Meaning:  fight only   for what’s really important.  

So I ask you, is this current battle really   important to you?  Can you deal with the repercussions of the outcome of the battle?  

Hope these answers have helped you, brother and I wish you well,

CC