{ "id": 4233289, "name": "STATE OF NORTH CAROLINA v. DENNIS POPE", "name_abbreviation": "State v. Pope", "decision_date": "2011-07-19", "docket_number": "No. COA10-932", "first_page": "413", "last_page": "418", "citations": [ { "type": "official", "cite": "213 N.C. App. 413" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "522 U.S. 931", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11539776, 11539590, 11539686, 11539660, 11539824, 11539729, 11539634, 11539604, 11539866, 11539643, 11539580 ], "year": 1997, "pin_cites": [ { "parenthetical": "citing Raley v. Ohio, 360 U.S. 423, 438-39, 3 L. Ed. 2d 1344, 1355-56 (1959)" } ], "opinion_index": 0, "case_paths": [ "/us/522/0931-09", "/us/522/0931-02", "/us/522/0931-07", "/us/522/0931-06", "/us/522/0931-10", "/us/522/0931-08", "/us/522/0931-04", "/us/522/0931-03", "/us/522/0931-11", "/us/522/0931-05", "/us/522/0931-01" ] }, { "cite": "667 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642002, 12642003, 12642004 ], "year": 2008, "pin_cites": [ { "parenthetical": "quoting State v. Priddy, 115 N.C. App. 547, 550, 445 S.E.2d 610, 613 (1994), disc. rev. denied, 337 N.C. 805, 449 S.E.2d 751 (1994" } ], "opinion_index": 0, "case_paths": [ "/se2d/667/0234-01", "/se2d/667/0234-02", "/se2d/667/0234-03" ] }, { "cite": "362 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12642003, 12642004, 12642006, 12641999 ], "year": 2008, "pin_cites": [ { "parenthetical": "quoting State v. Priddy, 115 N.C. App. 547, 550, 445 S.E.2d 610, 613 (1994), disc. rev. denied, 337 N.C. 805, 449 S.E.2d 751 (1994" } ], "opinion_index": 0, "case_paths": [ "/se2d/667/0234-02", "/se2d/667/0234-03", "/se2d/667/0236-01", "/se2d/667/0232-01" ] }, { "cite": "651 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639638 ], "year": 2007, "pin_cites": [ { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0584-01" ] }, { "cite": "360 U.S. 423", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8856 ], "weight": 4, "year": 1959, "pin_cites": [ { "page": "438-39" }, { "page": "1355-56" }, { "page": "438-39" }, { "page": "1355-56" } ], "opinion_index": 0, "case_paths": [ "/us/360/0423-01" ] }, { "cite": "139 L. Ed. 2d 260", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "pin_cites": [ { "parenthetical": "citing Raley v. Ohio, 360 U.S. 423, 438-39, 3 L. Ed. 2d 1344, 1355-56 (1959)" } ], "opinion_index": 0 }, { "cite": "109 F.3d 936", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 834108 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "938-39" } ], "opinion_index": 0, "case_paths": [ "/f3d/109/0936-01" ] }, { "cite": "315 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "500" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527265 ], "year": 1984, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0358-01" ] }, { "cite": "341 S.E.2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "316 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703139, 4699043, 4696042, 4703660, 4704724 ], "year": 1986, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0198-01", "/nc/316/0198-05", "/nc/316/0198-04", "/nc/316/0198-03", "/nc/316/0198-02" ] }, { "cite": "337 S.E.2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "601" }, { "page": "601" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520802 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "266" }, { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0262-01" ] }, { "cite": "118 U.S. 356", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3519298 ], "weight": 2, "year": 1886, "pin_cites": [ { "page": "373-74" }, { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/us/118/0356-01" ] }, { "cite": "597 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "721" } ], "opinion_index": 0 }, { "cite": "358 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987016 ], "year": 2004, "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0512-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "619" }, { "page": "632" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "year": 1982, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "669 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2008, "pin_cites": [ { "page": "294", "parenthetical": "quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)" }, { "page": "294" } ], "opinion_index": 0 }, { "cite": "362 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150837 ], "year": 2008, "pin_cites": [ { "page": "632", "parenthetical": "quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0628-01" ] }, { "cite": "449 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 805", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550182, 2549415, 2549431, 2549882, 2549179 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0805-05", "/nc/337/0805-04", "/nc/337/0805-02", "/nc/337/0805-01", "/nc/337/0805-03" ] }, { "cite": "445 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "613" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135816 ], "year": 1994, "pin_cites": [ { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0547-01" ] }, { "cite": "186 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8156942 ], "year": 2007, "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0382-01" ] } ], "analysis": { "cardinality": 686, "char_count": 13094, "ocr_confidence": 0.757, "pagerank": { "raw": 4.947487136851577e-08, "percentile": 0.3113345604319016 }, "sha256": "066d512fb7d8d0226eecdecdf30e00280d036bfd9b13bbed243d1821a0cb9eb2", "simhash": "1:4bc7454612672866", "word_count": 2059 }, "last_updated": "2023-07-14T21:51:58.983312+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DENNIS POPE" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere a defendant did not demonstrate that he was singled out for prosecution, and has not demonstrated that his prosecution was improperly motivated, the trial court erred in dismissing the charges against him due to selective prosecution. Where a defendant has not adequately demonstrated that the government explicitly informed him that an illegal act was legal, the trial court erred in concluding that the government was estopped from prosecuting him.\nI. Factual and Procedural Background\nDennis Wayne Pope (\u201cdefendant\u201d) was the Public Works Director for the Town of Coats. Public Works employees collected the town\u2019s metal scrap, or \u201cwhite goods.\u201d These \u201cwhite goods\u201d included old appliances, which would be left alongside the road by town residents. Public Works employees would transport these goods to a vacant, unsecured lot. They would later sell them for cash, and submit the money to defendant. Previously, it had been the custom for defendant to submit these monies to a town official, such as the Town Manager or Town Clerk, who would put them into a fund to pay for various town functions, such as employee cookouts. Over time, defendant assumed more personal control over these funds.\nIn 2009, defendant instructed three employees to collect \u201cwhite goods\u201d and sell them. No receipts could be found indicating that any money had been remitted to the town that year.\nCoats Police Chief Eddie Jaggers (\u201cJaggers\u201d) conducted an investigation into these transactions. Due to concerns regarding the political overtones of the investigation, Jaggers contacted the North Carolina State Bureau of Investigations (\u201cSBI\u201d), which assigned Special Agent Justin Heinrich (\u201cHeinrich\u201d) to the case. Jaggers was concerned that the animosity between defendant, who had supported another mayoral candidate, and Mayor Marshall Miller, might influence a local investigation. Heinrich investigated the Department of Public Works, leading to defendant\u2019s indictment for four counts of felonious larceny by employee.\nOn 12 March 2010, defendant filed a motion styled as \u201cMotion for Relief from Selective Prosecution,\u201d seeking dismissal of the charges. This motion alleged that there were three other employees of the Town of Coats who had also personally profited from the sale of \u201cwhite goods\u201d collected pursuant to their employment by the town. These employees had not been criminally charged. The motion also insinuated that the prosecution of defendant was politically motivated. On 28 May 2010, the trial court granted defendant\u2019s motion and dismissed the charges, with prejudice.\nThe State appeals.\nII. Grounds for Appellate Review\nIf a judgment or decision dismisses criminal charges, the State may appeal unless the rule against double jeopardy bars further prosecution. N.C. Gen. Stat. \u00a7 15A-1445(a)(l) (2010). In a criminal trial, jeopardy \u201cdoes not attach until \u2018a competent jury has been empaneled and sworn.\u2019 \u201d State v. Newman, 186 N.C. App. 382, 386, 651 S.E.2d 584, 587 (2007), disc. rev. denied, 362 N.C. 478, 667 S.E.2d 234 (2008) (quoting State v. Priddy, 115 N.C. App. 547, 550, 445 S.E.2d 610, 613 (1994), disc. rev. denied, 337 N.C. 805, 449 S.E.2d 751 (1994).\nSince a jury had not yet been empaneled and sworn at the time of the pre-trial hearing, appellate review is not barred by double jeopardy in the instant case.\nIII. Standard of Review\nWhen reviewing a trial court\u2019s findings of fact, we are \u201cstrictly limited to determining whether the trial judge\u2019s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge\u2019s ultimate conclusions of law.\u201d State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). By contrast, conclusions of law \u201cdrawn by the trial court from its findings of fact are reviewable de novo on appeal.\u201d Id. at 632, 669 S.E.2d at 294 (quoting Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004)).\nIV. Selective Prosecution\nIn its first argument, the State claims that the trial court erred in dismissing the charges on the grounds that the defendant was selectively prosecuted. We agree.\nThe United States Supreme Court has stated that \u201c[t]hough the law itself be fair on its face ... if it is applied and administered by public authority with ... an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of justice is still within the prohibition of the Constitution.\u201d Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 30 L. Ed. 220, 227 (1886).\nIn North Carolina, enforcement of a law is unconstitutional \u201cwhen the selective enforcement is designed to discriminate against the persons prosecuted.\u201d State v. Howard, 78 N.C. App. 262, 266, 337 S.E.2d 598, 601 (1985), appeal dismissed and disc. rev. denied, 316 N.C. 198, 341 S.E.2d 581-82 (1986) (citations omitted). When a defendant alleges that he has been selectively prosecuted, the defendant must establish discrimination by a \u201cclear preponderance of proof.\u201d Id. If he sustains this burden, he is entitled to dismissal. Id.\nTo demonstrate selective prosecution, the defendant must show two things; first, he must \u201cmake a prima facie showing that he has been singled out for prosecution while others similarly situated and committing the same acts have not;\u201d second, after doing so, he must \u201cdemonstrate that the discriminatory selection for prosecution was invidious and done in bad faith in that it rests upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.\u201d Id. at 266-67, 337 S.E.2d at 601-02 (citing State v. Rogers, 68 N.C. App. 358, 367, 315 S.E.2d 492, 500 (1984)).\nAt the pre-trial hearing, defendant argued that, because others similarly situated who had engaged in similar conduct had not been charged, he was being singled out for political reasons. He alleged that these other employees of the Town of Coats, who worked under defendant as Public Works Director and engaged in this conduct upon his direction, were not criminally charged. The trial court agreed.\nHowever, the other employees who were not charged were not similarly situated to defendant, nor did they perform the same acts. Defendant had been the Public Works Director since 2004. The other three employees who were not charged were Public Works employees working under the supervision of defendant. None of these employees were in a position to oversee wholesale theft from the Town of Coats. It was the defendant alone who received the money from the sales of \u201cwhite goods,\u201d divided those monies up, failed to remit the monies to the town, kept a portion for himself and distributed the remainder to other employees. The trial court\u2019s conclusion of law that others who were similarly situated were not charged was in error.\nEven assuming, arguendo, that defendant successfully demonstrated selective prosecution, he also had the burden of showing that he was prosecuted in bad faith based upon impermissible considerations. Defendant asserts that he was prosecuted for political reasons.\nIn analyzing this element, it is important to distinguish between an investigation and a prosecution. While the initial investigation into defendant\u2019s activities may or may not have been politically motivated, Jaggers subsequently brought in the SBI, which was divorced from any local political considerations. It was the SBI\u2019s investigation which resulted in defendant being charged.\nUltimately, the District Attorney prosecutes criminal cases on behalf of the State of North Carolina. N.C. Gen. Stat. \u00a7 7A-61. The District Attorney is not an agent of the local government, such as the Town of Coats. Once the investigation of this case was turned over to the SBI and the District Attorney, it was no longer subject to the control of the local governmental entity.\nDefendant asserts his prosecution resulted from his support for certain political candidates in the Town of Coats. However, defendant failed to demonstrate that his prosecution, as opposed to the initial investigation by local officials, was politically motivated. Defendant was required to show improper motivation by a \u201cclear preponderance of proof.\u201d Howard, 78 N.C. App. at 266, 337 S.E.2d at 601. He failed to meet this burden. The trial court erred in finding the prosecution to be politically motivated, and in concluding that defendant was the victim of selective prosecution.\nV. Entrapment-bv-Estoppel\nIn its second argument, the State argues that the trial court erred in dismissing the charges based on the theory of entrapment-byestoppel. We agree.\n\u201cA criminal defendant may assert an entrapment-by-estoppel defense when the government affirmatively assures him that certain conduct is lawful, the defendant thereafter engages in the conduct in reasonable reliance on those assurances, and a criminal prosecution based upon the conduct ensues.\u201d United States v. Aquino-Chacon, 109 F.3d 936, 938-39 (4th Cir. 1997), cert. denied 522 U.S. 931, 139 L. Ed. 2d 260 (1997) (citing Raley v. Ohio, 360 U.S. 423, 438-39, 3 L. Ed. 2d 1344, 1355-56 (1959)). \u201cIn order to assert an entrapment-byestoppel defense, [the defendant] must do more than merely show that the government made \u2018vague or even contradictory\u2019 statements. Rather, he must demonstrate that there was \u2018active misleading\u2019 in the sense that the government actually told him that the proscribed conduct was permissible.\u201d Aquino-Chacon, 109 F.3d at 939 (citing Raley, 360 U.S. at 438-39, 3 L. Ed. 2d at 1355-56).\nWe first note that the theory of entrapment-by-estoppel is not to be found in defendant\u2019s \u201cMotion for Relief from Selective Prosecution,\u201d nor was it raised during the hearing before the trial judge. While defense counsel did argue that the \u201cwhite goods,\u201d once placed in the abandoned lot where they were stored, had been abandoned by the town, this assertion did not suffic\u00e9 to raise an issue of entrapment-by-estoppel before the trial court.\nIt appears that the trial court raised the matter of the entrapment-by-estoppel defense ex mero mo tu in its order. This issue is discussed in Findings of Fact 17,18 and 19, where the trial court found that officials were aware of the practice of disposing of \u201cwhite goods,\u201d that these activities were condoned by express knowledge and by failure to proscribe them, and that without having been given notice to the contrary, Public Works Department employees reasonably relied on the tacit approval of the town in their actions. Based on these findings of fact, the trial court concluded that the Town of Coats was estopped from claiming ownership of the \u201cwhite goods\u201d which the defendant was accused of selling.\nIn an entrapment-by-estoppel defense, the burden is on the defendant to offer evidence showing that he reasonably relied on explicit assurances by government officials of the legality of his actions. Officials testified that they were aware that some \u201cwhite goods\u201d were sold, and that the money was deposited to a common pool. However, no evidence was offered to show that government officials expressly condoned defendant pocketing money from that fund.\nExplicit permission is a requirement, established in AquinoChacon, without which entrapment-by-estoppel cannot be satisfied. Defendant did not offer sufficient evidence to meet this requirement. The trial court therefore erred in concluding that the town is estopped from claiming ownership of the \u201cwhite goods.\u201d\nVI. Conclusion\nWe hold that the trial court erred in dismissing with prejudice the charges against the defendant.\nREVERSED.\nJudges ELMORE and ERVIN concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.", "Ryan McKaig and Lee Tart Malone, for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DENNIS POPE\nNo. COA10-932\n(Filed 19 July 2011)\n1. Larceny\u2014 felonious larceny by employee \u2014 defendant not selectively prosecuted \u2014 dismissal erroneous\nThe trial court erred in a felonious larceny by employee case by dismissing the charges against defendant on the grounds that defendant was selectively prosecuted. The other employees who were not charged were not similarly situated to defendant, nor did they perform the same acts. Moreover, defendant failed to demonstrate that his prosecution, as opposed to the initial investigation by local officials, was politically motivated.\n2. Larceny\u2014 felonious larceny by employee \u2014 entrapment-byestoppel \u2014 dismissal erroneous\nThe trial court erred in a felonious larceny by employee case by dismissing the charges based on the theory of entrapment-byestoppel. Defendant failed to offer evidence showing that he reasonably relied on explicit assurances by government officials of the legality of his actions.\nAppeal by State from order entered 28 May 2010 by Judge Franklin F. Lanier in Harnett County Superior Court. Heard in the Court of Appeals 12 January 2011.\nAttorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.\nRyan McKaig and Lee Tart Malone, for defendant-appellee." }, "file_name": "0413-01", "first_page_order": 423, "last_page_order": 428 }