Appeal by defendant from a judgment dated 7 July 2005 by Judge
Richard L. Doughton in Madison County Superior Court. Heard in the
Court of Appeals 23 August 2006.
Attorney General Roy Cooper, by Assistant Attorney General
John P. Barkley, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Keischa M. Lovelace, for Defendant-Appellant.
BRYANT, Judge.
David Lewis Dockery (defendant) appeals from a judgment dated
7 July 2005 entered consistent with a jury verdict finding him
guilty of felonious cruelty to animals. For the reasons stated
herein, we find no error.
Facts
On the morning of 1 September 2004, defendant's children went
to the school bus stop near the bottom of defendant's driveway.
The defendant's pet dog, a Boston Terrier, accompanied the
children. Another dog, a Labrador Retriever, was also at the bus
stop. The Labrador Retriever and the Boston Terrier began fighting
in a nearby ditch. No one testified as to how the fight began. After making an unsuccessful attempt to stop the dog fight, the
defendant's son sought help from a woman sitting in a car parked
nearby. The woman, Ms. Cindy Winkler, got out of her car and
picked up a small board. She used the board to hit the Labrador on
its rear end in order to dislodge it and to try to pry the dogs
apart. Her efforts failed. She then joined another parent and
assured the children the dogs would stop fighting when they tired.
The dogs separated once, then re-attached with the Labrador on top.
Meanwhile, defendant's daughter ran home and woke her father,
crying, “He's killing him.” The daughter and defendant's
girlfriend ran out the door. Defendant grabbed his shotgun. The
dogs were still fighting when defendant arrived. Defendant and his
girlfriend testified that he first poked at the Labrador with his
gun to see if it would let go. Defendant and several witnesses
testified he picked up the Labrador by the nape of its neck,
lifting the dog's front paws off the ground. He then put the
shotgun directly against the dog's side and fired. The Labrador
fell down dead. After he fired, defendant turned and asked another
witness, “Why couldn't you stop them?” Defendant went home to
change clothes. He then returned to the bus stop and picked up the
dead dog. He buried it at a friend's home.
Procedural History
On 5 July 2005, defendant was indicted for felonious cruelty
to animals. The case was tried before a jury the next day at the
6 July 2005 Criminal Session of Madison County Superior Court, the
Honorable Richard L. Doughton presiding. The jury found defendantguilty of felonious cruelty to animals. Judge Doughton entered
Judgment and Commitment on 7 July 2005 imposing a suspended
sentence of six to eight months imprisonment. The suspended
sentence was conditioned upon sixty months probation, payment of
restitution, and other special probationary conditions. Notice of
Appeal was given in open court.
_________________________
Defendant presents two issues on appeal: (I) whether there
was sufficient evidence to sustain defendant's conviction; and (II)
whether the trial court erred or abused its discretion in denying
defendant's motion for a continuance.
I
We first consider whether there was insufficient evidence to
sustain the conviction. To survive a motion to dismiss, the State
must present substantial evidence of each essential element of the
charged offense.
State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d
432, 434 (1997)
. “'Substantial evidence is relevant evidence that
a reasonable mind might accept as adequate to support a
conclusion.'”
Id. at 717, 483 S.E.2d at 434 (quoting
State v.
Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). After
careful review of the record, briefs, and contentions of the
parties, we find no error.
A person commits felonious cruelty to animals if he kills an
animal “intentionally and with malice or bad motive.” N.C. Gen.
Stat. § 14-360(c) (2005). “'[I]ntentionally' refers to an act
committed knowingly and without justifiable excuse[.]”
Id. Asstated in the charge to the jury, malice can be “the condition of
the mind which prompts a person to intentionally inflict serious
bodily harm which proximately results in injury without just cause,
excuse or justification.”
See State v. Sexton, 357 N.C. 235, 237-
38, 581 S.E.2d 57, 58-59 (2003).
Here, defendant admits he knowingly shot the dog. However,
defendant argues that the killing was unintentional, and without
malice, because his use of deadly force was justified. We
disagree.
The North Carolina Supreme Court has long held:
If the danger to the animal, whose injury or
destruction is threatened, be imminent or his
safety presently menaced, in the sense that a
man of ordinary prudence would be reasonably
led to believe that it is necessary for him to
kill in order to protect his property, and to
act at once, he may defend it, even unto the
death of the dog, or other animal, which is
about to attack it.
State v. Smith, 156 N.C. 628, 634, 72 S.E. 321, 323 (1911);
see
State v. Dickens, 215 N.C. 303, 305, 1 S.E.2d 837, 839 (1939)
(finding no evidence it was reasonable to kill dog in order to
protect property);
see also State v. Simmons, 36 N.C. App. 354,
355, 244 S.E.2d 168, 168-69 (1978) (citing
Smith, 156 N.C. at 631,
72 S.E. at 322) (killing justified if it is necessary then and
there to protect property).
In the instant case, the State provided substantial evidence
that it was neither reasonable nor necessary for defendant to kill
to protect his property. Neither dog was shown to be the
aggressor, nor did the Labrador have any history of aggression. There was no evidence to show the dogs were about to attack the
children or anyone else. Moreover, when defendant arrived, he was
able to separate the fighting dogs by lifting the Labrador off the
ground, an act which might infer that deadly force was not
necessary to protect his dog. After shooting the Labrador,
defendant did not immediately attend to his own dog but went to
change clothes and then to bury the dead dog. Therefore, taking
the evidence in the light most favorable to the State, a jury could
properly infer that defendant was not justified in killing the dog
and thus committed felonious cruelty to an animal. Accordingly,
this assignment of error is overruled.
II
Defendant next argues that the trial court erred or abused its
discretion in denying defendant's motion for a continuance. A
trial court's ruling on a motion to continue ordinarily will not be
disturbed absent a showing that the trial court abused its
discretion, but the denial of a motion to continue presents a
reviewable question of law when it involves the right to effective
assistance of counsel.
“While a defendant must be afforded a
reasonable opportunity to prepare a defense, neither the United
States Constitution nor the North Carolina Constitution guarantees
a particular length of time for the preparation. The facts of each
case are pertinent.”
State v. Morgan, 359 N.C. 131, 144, 604
S.E.2d 886, 894 (2004) (finding adequate time for preparation),
cert. denied __ U.S. __, 163 L. Ed. 2d 79 (2005);
see also State v.
Harris, 290 N.C. 681, 687, 228 S.E.2d 437, 440 (1976) (upholdingdenial of a motion to continue made the day the case was called for
trial). To establish a constitutional violation, a defendant must
show that he did not have ample time to confer with counsel and to
investigate, prepare and present his defense.
Harris, 290 N.C. at
687, 228 S.E.2d at 440;
State v. Covington, 317 N.C. 127, 130, 343
S.E.2d 524, 526 (1986) (finding defendant could not show how he
would be better prepared had continuance been granted)
(See footnote 1)
.
“[A continuance] is proper if there is a belief that
material
evidence will come to light and such belief is reasonably grounded
on known facts[,] [b]ut a mere intangible hope that something
helpful to a litigant may possibly turn up affords no sufficient
basis for delaying a trial . . . .”
State v. Tolley, 290 N.C. 349,
357, 226 S.E.2d 353, 362 (1976) (citation and quotations omitted).
In order to obtain relief, a defendant must show that the error
asserted is material and prejudicial.
State v. Franklin, 23 N.C.
App. 93, 96, 208 S.E.2d 381, 383 (1974).
Defendant argues the denial of his motion for a continuance
violated his right to “effective assistance and adequate defense,”
specifically that his counsel did not have adequate time to
prepare. Defendant points to the fact there was only one day
between the indictment and the trial. Defendant also claims thatthe denial of the motion prevented the defense counsel from meeting
with a new, recently discovered witness. We are not persuaded.
After defendant delivered his plea of not guilty at the trial
in this case, the following colloquy occurred between the trial
court and defense counsel during the motion for continuance:
[Defense Counsel]: Your Honor, we request at
this time a motion to continue, I understand
it is a late date, I believe in order to
provide effective assistance and adequate
defense to this matter Your Honor. . . . I
just recently learned of [a witness who] was
actually present at the scene and not listed
in any of the State's materials. I believe
that witness would also have some incredible
insight as to what is going on and I would
like the opportunity to go over this with my
client present and talk to the witnesses, and
we request we set this over and be ready for
trial at that session.
THE COURT: Mr. Reinhardt, as I understand
the case management system in this county
requires you to make your motion for a
continuance at the administrative session that
sets the case for trial. Now was there an
administrative session that set the case for
trial for this case?
Defense Counsel: There was Your Honor.
. . .
[Prosecutor]: I believe Your Honor that was
May 23.
THE COURT: The rule, 15-a, requires
motions to continue to be filed by Wednesday
before the week of court. Was there any motion
made?
[Defense Counsel]: There was none, Your
Honor, this is more appealing in the interest
of justice, I learned of this witness this
morning.
THE COURT: Sir, you have had adequate time to
talk to your client, to raise this objection,you have failed to procedurally to file the
proper request for a continuance and I am
going to deny the motion for continuance. I
will do this for you . . . is this a local
witness that you need to subpoena?
[Defense Counsel]: I believe so, Your Honor.
. . .
THE COURT: I will give you an opportunity
tonight to talk with that witness. We will
proceed with the trial as far as we can go
today and if we get through with all the
State's evidence, and all of your evidence
with the exception of that witness, and if you
need additional time . . . I will give you
that opportunity. Is that fair enough?
[Defense Counsel:] That is fair, Your Honor,
thank you.
In the instant case, defendant was indicted for the same crime
for which he was earlier charged in an arrest warrant. Shortly
after his arrest he was appointed counsel. Defendant retained the
same counsel throughout preparation for trial and during trial.
Defendant and counsel had been aware of the scheduled trial date
for approximately a month and a half before trial, yet the motion
to continue was made on 6 July 2005, the day the trial began, based
on a newly discovered witness. However, the identity of the newly
discovered witness was not revealed to the trial court, nor did
defense counsel disclose any new facts that he believed this new
witness might offer.
See State v. Bryant, 19 N.C. App. 55, 197
S.E.2d 895 (1973) (no error denying motion for continuance where
defendant argued some of the witnesses to be called on his behalf
were in Central Prison, but he did not name those witnesses or
state what facts were expected to be testified to by them or thatthe evidence would be procured at or before some named subsequent
term). Defendant presented a mere intangible hope that something
helpful to defendant may possibly turn up with the newly discovered
witness rather than a belief that material evidence would be
revealed and reasonably grounded on known facts. Despite defense
counsel's vague reference to the newly discovered witness, the
trial court allowed defense counsel time during the evening recess
to find and question the witness. This allowance, combined with
the month and a half defendant had to confer with his counsel and
to investigate, prepare and present his defense, was ample in light
of these circumstances.
Defendant has failed to make a showing that the alleged error
here is material and prejudicial. As such, the trial court did not
abuse its discretion in denying the motion for a continuance.
See
State v. Sampley, 60 N.C. App. 493, 496, 299 S.E.2d 460, 462 (1983)
(no abuse of discretion to deny oral motion to continue on the
first day of trial when defendant had more than a month from the
withdrawal of his original attorney in which to retain a new one),
disc. review denied, 308 N.C. 390, 302 S.E.2d 257 (1983). This
assignment of error is overruled.
No error.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).
Footnote: 1