Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Criminal Practice / Criminal Practice – Embezzlement – IAC Claim – Restitution Check – Rule 408

Criminal Practice – Embezzlement – IAC Claim – Restitution Check – Rule 408

Defendant was charged with embezzling more than $18,000 worth of merchandise from his employer. Defendant brought the employer a cashier’s check for $15,000 in an attempt to avoid criminal liability. N.C. R. Evid. 408, which governs the admissibility of evidence of compromises and offers to compromise, did not bar admission of the cashier’s check, so defense counsel’s failure to object to introduction of the check into evidence did not constitute ineffective assistance of counsel.

We find no error in defendant’s conviction for embezzlement.

The state offered the evidence of the payment not to establish defendant’s civil liability for the conversion of the property but to show an effort to obstruct a criminal investigation or prosecution by defendant—specifically, his attempts to avoid an embezzlement prosecution. While arranging the payment to employer Black’s Tire, defendant told operations manager John Grice, “I don’t want a criminal record, so . . . I want to try to pay you back so I don’t have to have a criminal record.” Further, upon delivering the check, defendant asked what the payment “mean[t]” for him in terms of the next steps of his case.

It is plain that the evidence was offered to show that defendant was attempting to avoid a criminal prosecution, and not offered to prove “liability for or invalidity of the claim or its amount.” Rule 408. Moreover, this evidence was not offered in a trial between Black’s Tire and defendant to determine defendant’s civil liability for the tort of conversion; rather, it was offered in the context of a prosecution for the crime of embezzlement. For these reasons, the admission of this evidence did not violate Rule 408.

Because defendant’s entire ineffective assistance of counsel claim centers on the admissibility of the payment evidence under Rule 408, which we have concluded did not bar the evidence’s admission, defendant has not and cannot show that his counsel’s conduct fell below an objective standard of reasonableness.

Even if defense counsel should have objected to admission of the check, defendant cannot show prejudice, given the ample other evidence against him, including his signed confession.

State v. Hucks (Lawyers Weekly No. 012-108-23, 9 pp.) (Valerie Zachary, J.) Appealed from New Hanover County Superior Court (Joshua Willey, J.) Ameshia Cooper Chester for the state; Katherine Jane Allen for defendant. North Carolina Court of Appeals (unpublished)

Leave a Reply

Your email address will not be published. Required fields are marked *