State v. Pope, 213 N.C. App. 413 (Jul. 19, 2011)

The trial court erred by dismissing charges on grounds of selective prosecution. The defendant, a public works director, was charged with larceny by employee in connection with selling “white goods” and retaining the proceeds. To demonstrate selective prosecution, the defendant must: (1) make a prima facie showing that he or she has been singled out for prosecution while others similarly situated and committing the same acts have not; and (2) demonstrate 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 the exercise of constitutional rights. The trial court erroneously concluded that other similarly situated employees were not charged. The defendant was the public works director while the others were his subordinates; none were in a position to oversee wholesale theft from the town; and the defendant alone received the money from the sales, divided up the money, failed to remit it to the town, and kept a portion for himself while distributing the remainder to other employees. The court also rejected the defendant’s assertion that his prosecution resulted from support of certain town political candidates, concluding that he failed to demonstrate that the prosecution, as opposed to the initial investigation, was politically motivated. While the initial investigation may or may not have been politically motivated, local officials subsequently brought in the SBI to investigate and it was the SBI’s investigation which resulted in defendant being charged and prosecuted by the district attorney, who is not an agent of local government.