Threat and excavator-sale embezzlement charges: acquitted twice

Background

Our client was a creditor who had lent a large sum. By agreement with the debtor's side, our client took over and sold the debtor company's excavator, with the proceeds to be split in agreed shares. As the settlement dragged on, our client sent the debtor one heated text message. Our client was charged with making a threat over that message, and with embezzlement for not handing over part of the proceeds.

The issue

Whether the text conveyed a threat of harm capable of causing fear, and whether the delayed settlement reflected intent to embezzle.

Our approach

The judgment does not separately summarize the defense's arguments. The court examined in detail how the text came to be sent and how the settlement unfolded.

The court's reasoning

The court noted that, when the text was sent, the debtor had filed for bankruptcy so recovery was in doubt, that our client was under strain from taking on much of the work of recovering the debt, and that right afterward our client sent a message asking to be told of any wrongdoing on their part; it found the text a momentary expression of anger. On embezzlement, it held that our client only had a duty to settle under the agreement, had in fact settled, had no agreed deadline and had practical reasons to hold off, so intent could not be established. The appeal court upheld these findings.

Outcome

The first-instance court acquitted on both charges, and the appeal court dismissed the prosecutor's appeal.

What this case means

Even harsh wording in a message may not amount to a criminal threat, depending on its context. A delayed settlement alone does not make out embezzlement.

This is the outcome of an individual case and does not guarantee the same result in similar matters. Some facts have been generalized to protect the parties involved.