State v. Holcombe – Breach of Trust Conviction Reversed Because of Solicitor’s Comments

In State v. Holcombe, the SC Court of Appeals reversed convictions for breach of trust with fraudulent intent and obtaining money by false pretenses, finding that obtaining money by false pretenses requires a false statement made at the time of the offense and that statements made by the solicitor during closing argument required reversal.

The Court found that the “trust” element of breach of trust can be satisfied by the writing of a check when the proceeds are intended for the benefit of the person who wrote the check, denying Holcombe’s appeal on that ground, but went on to reverse both convictions on other grounds.

What is the “Trust” in Breach of Trust?

The Court first declined to reverse based on the defendant’s argument that writing a check cannot establish a trust relationship.

Breach of trust with fraudulent intent in SC requires the state to prove:

  • A fiduciary, or trust, relationship between the defendant and alleged victim;
  • Taking of the alleged victim’s property;
  • That the property taken was being held for the alleged victim’s benefit; and
  • An intent to defraud the alleged victim.

In Holcombe, the alleged victim wrote a check to the defendant for a new roof. Based on the facts of the appellate opinion, it appears that Holcombe took the check and used it to pay for a roof for another customer, but then never replaced the alleged victim’s roof.

The Court found that when the alleged victim wrote the check to Holcombe, a fiduciary, or trust, relationship was formed – the money was held by Holcombe but intended for the alleged victim’s benefit to pay for their new roof.

So, what is a “trust?”

A trust is an ‘arrangement whereby property is transferred with [the] intention that it be administered by trustee for another’s benefit… Thus, the transferor of the property must intend that the trustee will act for the transferor’s benefit instead of on his own behalf.

Any time a person is entrusted with another’s property, it could give rise to criminal charges if the person uses the property for their own benefit, including:

  • Contractors who do not perform the work for which they were retained;
  • Employees who take property from their employers (breach of trust is also embezzlement); or
  • Caretakers who steal their ward’s property.

The breach of trust conviction was ultimately reversed, however, based on the solicitor’s inappropriate remarks during closing argument.

Obtaining Property by False Pretenses Requires a False Statement

The Court reversed the conviction for obtaining property by false pretenses because the state did not prove that a false statement was made at the time of the offense.

Holcombe said he was going to put a roof on their house, which was a false statement because he did not put a roof on their house, and he obtained property (money) from the alleged victim based on his promise to put a roof on their house… wait a minute. That sounds like a false statement, doesn’t it?

The Court found, however, that the false statement cannot be a future promise – the statement must be false at the time that it is made:a

The cases interpreting this statute make clear that a future promise cannot constitute a false representation. Instead, the representation must be false either at the time or prior to it being made. In this case, the representation was that Holcomb would replace McGinn’s roof. At the time the representation was made, Holcomb could have used McGinn’s payment to replace his roof. Thus, we find the State did not provide sufficient evidence to show the statement was irrefutably false at the time made.

Next, the Court reversed the remaining breach of trust conviction based on improper remarks by the solicitor.

Look – a Unicorn!

When is a conviction reversed based on improper remarks by a prosecutor? Never… wait, it happened. It really happened!

The appellate courts should reverse a conviction based on improper remarks by the prosecutor when those remarks result in a denial of Due Process to the defendant:

The test of granting a new trial for alleged improper closing argument is whether the solicitor’s comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 169 (1986).

In this case, the prosecutor suggested that the defendant called the alleged victim’s daughter a “meth making mama,” after the Court had already sustained an objection to the phrase. But the Court did not reverse based on that.

The Court did reverse based on the prosecutor’s statement that “[t]his case was not brought on a warrant. This case was brought on an indictment that goes through a grand jury.”

Nevermind the dishonesty of the prosecutor, who knows very well that the grand jury process is meaningless in SC and there is no determination of probable cause based on evidence when a SC grand jury indicts a person, and who lies to the jurors to try and improve his chances of convicting the defendant.

The prosecutor should also know that it is reversible error to suggest that another judge or jury has already decided the facts:

“Our supreme court has repeatedly condemned closing arguments that lessen the jury’s sense of responsibility by referencing preliminary determinations of the facts.” Id. Statements referring to a grand jury indictment “are improper because they inject an arbitrary factor into jury deliberations. The danger is that a juror might be persuaded to rely on the opinion of others instead of exercising his independent judgment as to the facts . . . .” Id. (quoting State v. Thomas, 287 S.C. 411, 412-13, 339 S.E.2d 129 (1986)).

When a prosecutor suggests that another court, another jury, or the prosecutor themselves have already reviewed the evidence and decided the facts of the case, it makes it easier for the jurors to just say okay and rubber stamp the prosecutor’s decision to convict a person.

What’s the problem with that? Prosecutors don’t convict people. Grand juries don’t convict people. The jurors must decide for themselves whether a person is guilty or not guilty based solely on the facts that they hear during the trial.

Criminal Defense Lawyer in Columbia, Lexington, and Myrtle Beach SC

Lacey Thompson only accepts criminal defense cases in the Myrtle Beach, Lexington, and Columbia, SC areas, including charges of breach of trust and obtaining property under false pretenses.

If you have been charged with a crime or think that you are under investigation, call the Thompson Defense Firm now at 843-444-6122 or send us an email to set up a free consultation.

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