STATE OF NORTH CAROLINA,
Plaintiff,
v
.
NEW HANOVER COUNTY
No. 01 CRS 13586
CHRIS LUTTERLOAH, JR.,
Defendant.
Appeal by defendant from judgment entered 6 May 2004 by Judge
Ernest B. Fullwood in New Hanover County Superior Court. Heard in
the Court of Appeals 9 June 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Hope Murphy White
, for the State.
Hall & Horne, L.L.P., by William R. Shell, for defendant-
appellants.
STEELMAN, Judge.
*** Converted from WordPerfect ***
Defendant was found guilty by a jury of violating Section 3-5
of the town ordinance of the Town of Carolina Beach and resist,
delay, and obstruct a public officer. N.C. Gen. Stat. § 14-223.
Judge Fullwood imposed a sentence of sixty days, a fine of $500,
and cost of court. The sixty-day sentence was suspended and
defendant was placed on unsupervised probation for twenty-four
months.
On 21 June 2001, defendant transported horses to the residence
of Hillary Hanes, located on Canal Drive, within the corporate
limits of the Town of Carolina Beach. Miss Hanes intended to ride
the horses on the beach outside of the town limits. Section 3-5 ofthe town ordinance of the Town of Carolina Beach provides: “[it]
shall be unlawful to ride, lead, or drive any animal upon the
sidewalk, boardwalk, roads, or beaches within the corporate
limits.” Defendant was aware of the ordinance and it was agreed
that he and Stacey Walsh, who had accompanied defendant to the
Hanes' residence, would ride the horses to outside the town limits.
Miss Hanes would follow them to the town limits and then ride the
horses on the beach. As defendant and Mr. Walsh rode the horses
down Canal Drive, they were approached by Officer Gray of the
Carolina Beach Police Department. Upon being asked for
identification, defendant said, “Sir, you have got to be kidding
me. You are not going to write me another citation,” and also
stated his identification was at the Hanes' residence.
Officer Gray instructed them to retrieve their identification.
Defendant and Mr. Walsh began riding the horses back down Canal
Drive. At that time, Officer Gray instructed them to get off of
the horses. Mr. Walsh immediately complied. Defendant refused to
comply and directed his horse into what he described as “a nice
little trot” down Canal Street. Officer Gray pursued in his
vehicle with blue lights and siren, finally pulling defendant and
the horse over. Defendant was charged with a violation of Section
3-5 of the town ordinance and under N.C. Gen. Stat. § 14-223 for
“resist, delay or obstruct a public officer in discharging a duty
of his office.” In his first argument, defendant contends the Town of Carolina
Beach was without authority to enact Section 3-5 of its town
ordinance. We disagree.
N.C. Gen. Stat. § 160A-186 allows a city to “regulate,
restrict, or prohibit the keeping, running, or going at large of
any domestic animals.”(emphasis added). Defendant argues Section
3-5 goes beyond the regulation of the “keeping, running, or going
at large” found in N.C. Gen. Stat. § 160A-186, and was enacted
without authority.
The North Carolina Supreme Court has adopted an inclusive view
of statutory interpretation, stating “an act must be considered as
a whole, and none of its provisions shall be deemed useless or
redundant if they can reasonably be considered as adding something
to the act.” Town of Atlantic Beach v. Young, 307 N.C. 422, 425,
298 S.E.2d 686, 689 (1983). It is the duty of the courts to
construe statutes so that they harmonize with other statutory
provisions as much as possible. Victory Cab Co. v. Charlotte, 234
N.C. 572, 576, 68 S.E.2d 433, 437. See also Atlantic Beach, 307
N.C. at 426, 298 S.E.2d at 690 (construing Victory Cab Co. as
requiring the court to “do everything possible to uphold the
constitutionality of the ordinance”). This Court, therefore, has
an obligation to harmonize Section 3-5 with N.C. Gen. Stat. § 160A-
186, if possible.
Defendant argues that when he was riding a horse he was not
keeping a horse or allowing the horse to go at large. Defendantmakes no argument that riding a horse is not the same as “running”
a horse.
Because N.C. Gen. Stat. § 160A-186 lists “keeping” and “going
at large” separate from “running,” the legislators must have
understood “running” to be a different aspect of animal control.
Section 3-6 of the town ordinance concerns keeping animals within
corporate limits, while Section 3-4 concerns allowing animals to go
at large. This leaves Section 3-5 to regulate the running of
animals. The regulation that animals cannot be ridden, led, or
driven within the corporate limits is the Town of Carolina Beach's
regulation of the running of animals under N.C. Gen. Stat. § 160A-
186. This argument is without merit.
In his second argument, defendant contends Section 3-5 of the
town ordinance of the Town of Carolina Beach violates his due
process rights under the Constitution of the United States of
America and the State of North Carolina. We disagree.
There is a strong presumption that a statute enacted by a
governmental entity is constitutional. Rhyne v. K-Mart Corp., 358
N.C. 160, 168, 594 S.E.2d 1, 7 (2004) (citing Stephenson v.
Bartlett, 355 N.C. 354, 562 S.E.2d 377, 384 (2002)). Municipal
ordinances are presumed to be valid. McNeill v. Harnett County,
327 N.C. 552, 565, 398 S.E.2d 475, 482 (1990). By their very
nature, government ordinances seek to place restrictions upon the
conduct of individuals for the common good of the community.
Unless the ordinance is clearly prohibited by the Constitution,
id., or it is not related to a legitimate state objective, Atlantic Beach, 307 N.C. at 428, 298 S.E.2d at 691, the ordinance
is constitutional. The mere fact the ordinance restricts the
defendant from doing something he desires to do does not render the
ordinance unconstitutional.
The North Carolina Supreme Court has held that a de novo
standard of review is appropriate when constitutional rights are
implicated. Piedmont Triad Reg'l Water Auth. v. Sumner Hills,
Inc., 353 N.C. 343, 348, 543 S.E.2d 844,848 (2001).
In the case of Town of Atlantic Beach v. Young, our Supreme
Court set forth the applicable law pertaining to due process
challenges to municipal ordinances:
In order to determine whether this ordinance
is unconstitutionally arbitrary and
unreasonable we look to see if the ordinance
is reasonably related to the accomplishment of
a legitimate state objective. Raleigh Mobile
Home Sales, Inc. v. Tomlinson, 276 N.C. 661,
174 S.E.2d 542 (1970); State v. Whitaker, 228
N.C. 352, 45 S.E.2d 860 (1947).
However, there is no question that the health
and welfare of the citizens of this state are
legitimate public purposes. We are therefore
left the determination of whether the means
employed, to-wit the contested ordinance, is
reasonably related to the health and welfare
of this state's citizens.
307 N.C. at 428, 298 S.E.2d at 691. In State v. Stowe, 190 N.C.
79, 128 S.E.2d 481 (1925), the Supreme Court upheld the authority
of the City of Charlotte to regulate the keeping of cattle in the
municipal limits. In Town of Atlantic Beach, our Supreme Court
upheld a prohibition on the keeping of animals other than house
pets as being reasonably related to the health and welfare of the
citizens of Atlantic Beach, finding there to be “nothing arbitrary,unreasonable, or oppressive about this ordinance.” 307 N.C. at
429, 298 S.E.2d at 691.
Defendant focuses on the fact there is no statement of
legislative purpose contained in Section 3-5 of the ordinance,
arguing that without an expressly stated purpose, the ordinance
cannot be reasonably related to a legitimate purpose. We reject
such a theory. This would require governments to expressly set
forth its intended purpose in each section and subsection of each
law. Such is not required. We further note that in Section 3-2,
contained in the same chapter as Section 3-5, there is a lengthy
recitation of the legislative purpose behind banning certain
animals, including horses, from the Town of Carolina Beach.
We hold the ordinance in question was reasonably related to
the health and welfare of the citizens of Carolina Beach, and is
not arbitrary, unreasonable, or oppressive. This argument is
without merit.
In his third argument, defendant contends Section 3-5 of the
town ordinance of the Town of Carolina Beach violates the Equal
Protection Clauses of the Fourteenth Amendment of the United States
Constitution, and Sections 1 and 19 of Article I of the
Constitution of the State of North Carolina. We disagree.
Defendant argues there is no legitimate state interest in
prohibiting horses being ridden, led, or driven within town limits
because the General Assembly did not enact any legislation enabling
regulation of such equine pursuits. The standard of review for Equal Protection Clause challenges
is two-tiered. Atlantic Beach, 307 N.C. at 429, 298 S.E.2d at 691
(citing Texfi Industries, Inc. v. City of Fayetteville, 301 N.C. 1,
10, 269 S.E.2d 142, 149 (1980)). The first tier
, “strict
scrutiny,” is applied when either a fundamental right or a suspect
class is involved. Id. The second tier is applied to all other
challenges and requires a rational relationship to a legitimate
state interest
. Id. (citing New Orleans v. Dukes, 427 U.S. 297, 49
L.Ed. 2d 511 (1976)). Riding a horse is not a fundamental right,
nor are the riders of horses a suspect class of individuals.
Therefore, the second tier of review is appropriate in this case.
In Town of Atlantic Beach, the North Carolina Supreme Court
held that an ordinance which prohibited goats and horses within the
town was reasonably related to a legitimate government interest;
specifically to protect the health, safety, and welfare of its
citizens. 307 N.C. at 429-430, 298 S.E.2d at 691
. The identical
interest to protect public welfare applies in this case. The Town
of Carolina Beach enacted Section 3-5 to protect the health,
safety, and welfare of
its citizens, therefore it is reasonably
related to a legitimate government interest. This argument is
without merit.
In his fourth argument, defendant contends the trial court
erred in not dismissing the charge of “resist, delay, and obstruct
a public officer.” We disagree.
Defendant first contends that since Section 3-5 of the town
ordinances was not valid he was entitled to resist an unlawfularrest. As discussed above, the ordinance was valid and therefore
defendant was not entitled to resist the officer. This argument is
without merit.
Defendant next argues he was merely following Officer Gray's
instructions when he rode the horse back to retrieve his
identification and he did not resist arrest. Defendant was charged
under N.C. Gen. Stat. § 14-223 for “resist, delay or obstruct a
public officer in discharging a duty of his office.” When a
defendant's motion to dismiss for insufficiency of the evidence is
denied the appellate court must consider all the evidence in the
light most favorable to the State. State v. Garcia, 358 N.C. 382,
412-413, 597 S.E.2d 724, 746 (2004), cert. denied, ___ U.S. ___,
161 L. Ed. 122 (2005). The evidence at trial tends to show that
Officer Gray instructed defendant to dismount the horse and that
defendant then proceeded to “trot” his horse away from Officer Gray
and down the street. This conduct constituted a wilful and
intentional resistance and obstruction of Officer Gray in
discharging a duty of his office as a police officer of the Town of
Carolina Beach. This argument is without merit.
NO ERROR.
Judges HUDSON and JACKSON concur.
Report per Rule 30(e)