State v. Dove

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1273
Filed: 21 June 2016
Onslow County, No. 12 CRS 56590
STATE OF NORTH CAROLINA
v.
DITTRELL LESHEA DOVE, Defendant.
Appeal by defendant from judgment entered 10 June 2015 by Judge John E.
Nobles, Jr. in Onslow County Superior Court. Heard in the Court of Appeals 28 April
2016.
Roy Cooper, Attorney General, by Kenneth A. Sack, Assistant Attorney General,
for the State.
William D. Spence for defendant-appellant.
ZACHARY, Judge.
Defendant was charged with altering, stealing, or destroying criminal
evidence, based upon his alleged theft of money obtained from the controlled sale of
illegal drugs. Because the money in question was not evidence as defined by statute,
the trial court erred in denying defendant’s motion to dismiss the charge of altering,
stealing, or destroying criminal evidence.
I. Factual and Procedural Background
On 12 September 2012, Detective Joshua Porter (Det. Porter), an employee of
the narcotics division of the Jacksonville Police Department and the United States
STATE V. DOVE
Opinion of the Court
Drug Enforcement Administration task force (DEA), learned of Dittrell Dove
(defendant) from the Kansas field office of the DEA. Defendant had been stopped by
the Kansas Highway Patrol with a large amount of marijuana in his vehicle, bound
for Jacksonville, North Carolina. Defendant was willing to cooperate with law
enforcement by delivering the drugs to their intended recipient, a Mr. Thompson of
Jacksonville.
Det. Porter and the narcotics division formulated a plan to facilitate
defendant’s delivery of the drugs. Defendant would be flown to Jacksonville with 14
pounds of marijuana and taken into custody by Det. Porter, and would then drive in
a rented vehicle with the drugs to a designated location for the sale of the drugs, at
which point law enforcement would arrest Thompson. After the arrest, defendant
would surrender the money received for the drugs to the Jacksonville Police
Department.
Shortly before midnight on 24 September 2012, and during the early morning
hours of 25 September 2012, defendant and Thompson agreed on a meeting place.
Pursuant to plan, defendant wore a recording device. Defendant drove the rented
vehicle to the meeting place, with law enforcement following directly behind. After
meeting with Thompson, defendant drove to Thompson’s residence to complete the
transaction. Defendant then contacted Det. Porter to confirm that the deal was
concluded, and that defendant had the money. Defendant met Det. Porter in person
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Opinion of the Court
and informed him that Thompson had paid defendant $20,000, and owed him $10,000
more. Defendant gave Det. Porter a shopping bag filled with currency. Det. Porter
then searched defendant, and found currency “stuffed up his coat sleeves, in his
pockets, like, down his pants . . . .” There was money “all over his vehicle” and “money
stuffed in some of his luggage . . . There was just money everywhere, including on his
person.” The shopping bag contained $19,120, and $4,608 was found on defendant’s
person and in his vehicle. Defendant told Det. Porter that he had children, and
admitted to stealing the money. Defendant was arrested and charged with stealing
evidence pursuant to N.C. Gen. Stat. § 14-221.1; upon his being booked into jail,
another $1,000 was found on his person by jail staff. Defendant was tried at the 8
June 2015 session of Onslow County Superior Court. At the close of State’s evidence,
defendant moved to dismiss the charges. Defendant presented no evidence.
The jury found defendant guilty of altering, stealing, or destroying criminal
evidence. The trial court found defendant to have a prior felony record level III, and
sentenced defendant in the presumptive range to 6-17 months’ imprisonment. The
trial court then suspended this sentence, and ordered defendant to be placed on
supervised probation for 60 months.
This Court granted defendant’s petition for writ of certiorari to review this
case.
II. Standard of Review
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Opinion of the Court
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).
“ ‘Upon defendant’s motion for dismissal, the question for the Court is whether
there is substantial evidence (1) of each essential element of the offense charged, or
of a lesser offense included therein, and (2) of defendant’s being the perpetrator of
such offense. If so, the motion is properly denied.’ ” State v. Fritsch, 351 N.C. 373,
378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914,
918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
III. Motion to Dismiss
In his sole argument on appeal, defendant contends that the trial court erred
in denying his motion to dismiss. We agree.
Defendant was charged with stealing criminal evidence, pursuant to N.C. Gen.
Stat. § 14-221.1. This statute provides, in relevant part:
Any person who breaks or enters any building, structure,
compartment, vehicle, file, cabinet, drawer, or any other
enclosure wherein evidence relevant to any criminal
offense or court proceeding is kept or stored with the
purpose of altering, destroying or stealing such evidence;
or any person who alters, destroys, or steals any evidence
relevant to any criminal offense or court proceeding shall
be punished as a Class I felon.
As used in this section, the word evidence shall mean any
article or document in the possession of a law-enforcement
officer or officer of the General Court of Justice being
retained for the purpose of being introduced in evidence or
having been introduced in evidence or being preserved as
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Opinion of the Court
evidence.
N.C. Gen. Stat. § 14-221.1 (2015).
The language of the statute is explicit. “[T]he word evidence shall mean any
article or document in the possession of a law-enforcement officer or officer of the
General Court of Justice….” Defendant was neither of these things; at most, the
argument could be made that he was an agent of law-enforcement officers, but he was
not one himself.
Nor are we prepared to assume that this statute was intended to apply to
agents of law enforcement other than those explicitly named in the statute.
Inasmuch as the statutory language could be considered ambiguous, the rule of lenity
demands that we construe such ambiguity in favor of defendant.
This is not to say that defendant’s actions were not criminal. It is entirely
possible that defendant could have been tried for some other offense. However, at
issue in this case is the offense of altering, stealing, or destroying criminal evidence,
and that offense requires that the evidence at issue be “in the possession of a law-
enforcement officer or officer of the General Court of Justice….” We hold that the
money in question did not meet this statutory definition, that the State failed to
present substantial evidence of this element of the offense, and that the trial court
erred in denying defendant’s motion to dismiss.
REVERSED.
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Chief Judge McGEE and Judge DILLON concur.
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