About a year since the COVID-19 pandemic began, an increasing number of businesses have transitioned to touchless and contactless payments, with the use of cash taking a backseat to debit and credit cards. Not coincidentally, with increased use of financial cards comes increased financial card theft. Continue reading
Tag Archives: OPFP
Valentine’s day is coming up, which got me thinking about a fact pattern I ran into a while back. Dan wants to get his girlfriend, Ann, a present — say, roses — but doesn’t want to pay for the gift. So Dan tells Victor, a florist, that he’ll pay Victor in a few days if Victor will deliver the roses to Ann. Victor agrees, and he delivers the flowers, but Dan, who never intended to pay, doesn’t come through with the money. Did Dan obtain property by false pretenses in violation of G.S. 14-100?
The answer turns on whether Dan “obtain[ed]” property from Victor. If Dan wanted the roses for himself, the answer would clearly be yes. Likewise, if Dan asked Victor to give him the flowers so that he could turn around and give them to Ann, the answer would be yes. But in the fact pattern above, Dan never takes possession of the flowers, so it is reasonable to ask whether he actually “obtain[ed]” them. The dictionary defines “obtain” as “to come into possession of” or to “get, acquire, or procure.” I can imagine Dan’s lawyer relying on this definition to argue that Dan didn’t commit obtaining property by false pretenses.
Dan’s argument is a plausible one, but I don’t think that our appellate courts would endorse it. (They haven’t decided this issue yet.) Whether they would find that Dan obtained the property by “procur[ing]” it for Ann, or whether they would find that Dan constructively possessed the property when he directed Victor to deliver to it Ann, I don’t know, but the gravamen of Dan’s conduct is obtaining the flowers by fraud, and I suspect our appellate courts would interpret G.S. 14-100 to encompass it.
As always, I’d like to know your thoughts and experiences — just post a comment. Although the above example is based on a bricks-and-mortar retail transaction, the same issue arises, probably much more frequently, when someone orders gifts online while posing as someone else. In that situation, of course, there are usually other crimes, such as identity theft or financial transaction card fraud, that can be charged.
