An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-858


Filed: 1 March 2005


         v.                         Columbus County
                                 No. 03CRS53673

    Appeal by defendant from judgment entered 3 March 2004 by Judge William C. Gore, Jr., in Columbus County Superior Court. Heard in the Court of Appeals 28 February 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for the State.

    T. Craig Wright for defendant appellant.

    McCULLOUGH, Judge.

    On 29 September 2003, defendant was charged by warrant with allowing her dogs to run at large during the nighttime, in violation of N.C. Gen. Stat. § 67-12 (2003). Initially, this matter was tried in the Columbus County District Court, where defendant was found guilty on or about 10 November 2003. Defendant appealed to the superior court, and this matter came on for trial during the 1 March 2004 Criminal Session of Columbus County Superior Court.
    The State's evidence tended to show that between 6:00 and 6:30 a.m. on 6 September 2003, William Ellers exited his home to observe several dogs inside his fenced pasture chasing his goats. At this time, Ellers noted that though some of the goats were running fromthe dogs, others were lying on the ground dead. Ellers recognized the dogs as belonging to defendant. The dogs returned to Ellers' pasture at about 2:00 a.m. on 7 September 2003. Ellers recognized the dogs as the same dogs that had killed his goats on the morning of 6 September 2003. On this occasion, Ellers shot at the dogs with his gun, and they left traveling in the direction of defendant's home. Ellers testified that he was familiar with the dogs since he had seen them on his property previously and had encountered them on a neighboring roadway. Ellers further testified that the dogs appeared to be adult dogs. Notably, there were several yard lights present at the scene which allowed Ellers to see the dogs clearly. During the State's case-in-chief, the State was allowed, over defendant's objections, to introduce pictures of the goats killed by defendant's dogs on the evening of 6 September 2003.
    Defendant called the Columbus County Sheriff's Department on both occasions and Deputy Sheriff Troy Webb investigated the incidents. Deputy Webb's testimony about the dog attack was in conformity with that of Ellers. The deputy also testified that he traveled to defendant's residence on 6 and 7 September 2003 after the dogs were seen chasing Ellers' goats, but no one ever came to the door, despite repeated knocks. Deputy Webb noted that on both occasions, the gate to defendant's property was open and a number of dogs were unsecured, roaming about the premises.
    Defendant testified on her own behalf. Though she acknowledged that she owned nine dogs, she gave testimony that at least five ofher dogs were less than six months old. Her own testimony, however, was contradicted by the veterinarian's receipt that she offered into evidence, which indicated that one of the five dogs that she thought to be less than six months old (and which was born within a week of the other four dogs defendant thought to be less than six months old), was nine months old on 27 August 2003. Perry Shipman, who lives with defendant, also testified on defendant's behalf. He stated that he was at home on the morning of 6 September 2003 when Deputy Webb knocked on the door, but did not hear the Deputy. Shipman further stated that he and defendant were both at home on the morning of 7 September 2003 when Deputy Webb blew his car horn, but Shipman again denied hearing the deputy.
    A jury found defendant guilty as charged. The trial court entered judgment on that verdict, sentencing defendant to 5 days in jail, and requiring restitution in the amount of $800 and the removal of all dogs and livestock from her home while on probation for 24 months. Defendant again appeals.
    Defendant specifically withdraws her first assignment of error. By her second assignment of error, defendant argues that the trial court erred in denying her motion for directed verdict at the close of all of the evidence. We disagree.
    In State v. Bumgarner, 299 N.C. 113, 117, 261 S.E.2d 105, 108 (1980), our Supreme Court instructed, “A motion for a directed verdict of not guilty[--much like a motion to dismiss for insufficient evidence--] challenges the sufficiency of the evidence to justify submission to the jury.” Such a motion is properlydenied if there is substantial evidence to show that the offense was committed and that defendant was the perpetrator. See State v. Cooper, 138 N.C. App. 495, 497, 530 S.E.2d 73, 75, aff'd per curiam, 353 N.C. 260, 538 S.E.2d 912 (2000). Substantial evidence is that quantum of evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Baldwin, 141 N.C. App. 596, 604, 540 S.E.2d 815, 821 (2000). In ruling upon a motion that challenges the sufficiency of the evidence “all the evidence admitted must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference therefrom.” Bumgarner, 299 N.C. at 117, 261 S.E.2d at 108.
    To obtain a conviction for the offense charged, the State must present substantial evidence that (1) defendant intentionally, knowingly, and willfully allowed his/her dog(s), (2) over six months old, (3) to run at large in the nighttime, (4) unaccompanied by the owner or by some member of his/her family, or some other person by defendant's permission. N.C. Gen. Stat. § 67-12 (2003). Intent is rarely proved by direct evidence, but instead must be inferred from the facts and attending circumstances. State v. Morris, 156 N.C. App. 335, 340, 576 S.E.2d 391, 395, cert. denied, 357 N.C. 510, 588 S.E.2d 379 (2003).
    In the light most favorable to the State, we conclude the evidence was sufficient to show that defendant committed the offense as charged. First, the victim, William Ellers, testified that defendant is a neighbor; and that between 6:00 and 6:30 a.m. on 6 September 2003, he saw several dogs inside of his fencedpasture chasing his goats. Ellers stated that some of the goats were lying on the ground dead, while others were running away from the dogs. Ellers also testified that at about 2:00 a.m. on the morning of 7 September 2003, he again heard the dogs in his pasture chasing his goats. This time, Ellers went outside with his gun. He put a spotlight on the dogs and recognized them as the same dogs belonging to defendant that had been in his pasture on the previous morning. Ellers fired his gun at the dogs, and they dispersed-- most of them traveling in the direction of defendant's house. Ellers noted that he was familiar with the dogs since he had seen them on defendant's property for some time, and they had chased him as he walked down the roadway previously. The dogs had also chased Ellers' cat on a previous occasion. A petition had been drawn up against defendant just a couple of months before the 6 and 7 September 2003 incidents in response to the dogs chasing Ellers and his cat. Ellers opined that the dogs were adult dogs. Notably, Ellers explained that he had several yard lights which allowed him to see the attacks of 6 and 7 September 2003 clearly.
    Glenn Batten, a neighbor of both defendant and Ellers, testified that he was awakened by the sound of shots during the early morning hours of 7 September 2003. Batten testified that when he went outside to see what was happening, he saw about six dogs coming out of the woods behind his property. Batten stated that the dogs subsequently traveled across the road and through the open gate on defendant's property. Batten recognized the dogs as belonging to defendant. Batten testified that over the course of 18years defendant's roaming dogs had been a problem, and that he had several conversations with defendant about leaving the gate opened.
    At trial, Deputy Sheriff Troy Webb, of the Columbus County Sheriff's Department, testified that he investigated the report of dogs chasing Ellers' goats. Deputy Webb stated that he went to defendant's home twice, once in response to the 6 September 2003 incident and again on 7 September 2003, after the second attack. The deputy noted that several unleashed dogs met his patrol car on his first visit to defendant's home. Though defendant's property was fenced, Deputy Webb noted that the gate was left open. When Deputy Webb exited his vehicle and walked toward defendant's residence, he counted approximately six dogs in the yard, a couple of which growled at him. No one responded to the deputy's knocks at the door, despite there being a vehicle parked behind the house. Deputy Webb testified that the dogs were similarly not contained during his 7 September 2003 visit. Further, when Deputy Webb exited his vehicle and knocked on defendant's door, he failed to get a response, despite noticing a television playing inside. The deputy opined that someone was at home at this time. As he had done previously, when he left, Deputy Webb closed the gate to defendant's property to secure the dogs.
    Though defendant argues to the contrary, the State's evidence, which tended to show that defendant failed to correct the problem of her roaming dogs after being put on notice about previous attacks by her dogs, is sufficient to show the necessary intent to convict defendant of this offense. Further, the testimony ofEllers, Batten and Deputy Webb serve to establish the remaining elements of the offense. Thus, we conclude that the evidence was sufficient to submit the matter of defendant's guilt to the jury. This assignment of error is overruled.
    By her third and final assignment of error on appeal, defendant argues that the trial court erred in allowing the State to introduce into evidence State's Exhibits 1-10. Specifically, defendant contends that the exhibits, which depicted the goats killed by her dogs, were more prejudicial than probative, and therefore, should have been excluded under N.C.R. Evid. 403. Again, we disagree.
    “'Whether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court.'” State v. Agee, 326 N.C. 542, 549, 391 S.E.2d 171, 175 (1990). In the instant case, the trial court allowed the State to introduce ten pictures depicting the damage done by defendant's dogs to Ellers' goats and other property. While the pictures may have been somewhat gory, the pictures served the purpose of proving and/or illustrating several elements of the offense charged. The pictures tended to show that the dogs were present in the yard and the extent of the damage they caused. Additionally, the pictures corroborated the testimony of Ellers and Batten as to the dogs' presence at the scene. While necessarily prejudicial, we conclude that the photographs' probative value outweighed their prejudicial nature. Accordingly, the trial court did not abuse its discretion in allowing the photographs into evidence. This assignment of erroris also overruled.
    Having overruled all of defendant's assignments of error, we hold that defendant received a fair trial, free from prejudicial error.
    No error.
    Chief Judge MARTIN and Judge CALABRIA concur.
    Report per Rule 30(e).

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