Converted WP file 060978-1

Appeal by defendant from judgments entered 20 April 2006 by Judge Franklin F. Lanier in Harnett County Superior Court. Heard in the Court of Appeals 22 February 2007.

Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State.

Paul T. Cleavenger, for defendant-appellant.

    CALABRIA, Judge.

    Donald Ray Wood (“defendant”) appeals from judgments entered upon jury verdicts finding him guilty of two counts of misdemeanor cruelty to animals. We find no error.
    Kendal Branch (“Branch”) testified that on 11 July 2004, she purchased a horse named Hesacoolestheir, which she renamed Talladega (“Talladega”). Branch initially kept the horse at her cousin's home, but soon decided to hire a trainer to train and care for the horse. Branch entered into an oral agreement with defendant, who lived near Branch's cousin, whereby defendant agreed to train the horse for the price of $250, payable upon completion of training. On 25 July 2004, defendant walked the horse to his property and stabled the horse. Branch, who accompanied defendantto the stall, expressed concern about the stall's condition, asking defendant why the ground was so muddy. Defendant stated that the condition was temporary and would be corrected when the mud dried in a few days. Branch periodically checked in on Talladega, and became concerned when she saw the horse in an emaciated state and its feeding bags were empty. Branch intended to remove the horse from defendant's care at that time, but relented when defendant explained that his training method called for the horse's feeding to be curtailed initially and increased as the horse made progress.
    Branch's mother, Judy Baker (“Baker”), testified that on 26 August 2004 Branch called her and asked her to take some feed to the horse. When Baker arrived, she discovered Talladega on the ground. “[W]hen we went down there, he was laying down, his head was in a hole and he couldn't get up. So I panicked, and we called some friends of ours. . . and they called the vet for us.”
    Dr. Matthew Frazier (“Dr. Frazier”), a veterinarian, testified that on 26 August 2004, he responded to a call regarding a horse in distress. When Dr. Frazier arrived, he found Talladega lying in a “very dark, murky, nasty stall,” with a floor slicked by feces and urine. Dr. Frazier recommended euthanasia on Talladega, but the horse died before he could administer the shot.
    Tino Medina (“Medina”), a supervisor with the Harnett County Animal Control (“Animal Control”), testified that he was notified of Talladega's death the following day. Medina stated that he received a report from the Rollins Lab, which examined Talladega's body. The report, combined with Animal Control's interview withBranch, prompted Animal Control to consider charging Wood with animal cruelty. During the investigation, Medina saw three other horses that looked unusually thin, and obtained a warrant to seize those horses. The three horses were referred to as Jake (“Jake”), Lexie (“Lexie”), and Bree (“Bree”).
    Rod Mashburn (“Mashburn”) testified that he owned Jake, an Arabian who had the vice of “sucking wind,” which Mashburn described as such: “They hook their teeth on something, bow up, and suck wind into their stomach.” Mashburn claimed Jake would “rather do that than eat.” Mashburn placed the horse with defendant in order to separate Jake from his other horses, because he was fearful that the others would develop Jake's habit. In addition, he was trying to facilitate the sale of Jake.
    At the close of all the evidence, Judge Lanier dismissed the charge of felonious cruelty to animals. The jury then returned verdicts finding defendant guilty of two counts of misdemeanor cruelty to animals. Judge Lanier entered judgment upon those verdicts, sentencing defendant to consecutive sentences of 120 days each in the North Carolina Department of Correction. From those judgments, defendant appeals.
    Defendant initially argues the trial court erred by failing to dismiss one count of misdemeanor cruelty to animals at the close of all evidence. Defendant contends there was insufficient evidence to support the jury's finding that he committed the crime of misdemeanor cruelty to animals with respect to Jake. Our courtshave established the following standard in reviewing a trial court's denial of a motion to dismiss:
        In ruling upon a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences which may be drawn from the evidence. State v. Hodge, 112 N.C. App. 462, 465, 436 S.E.2d 251, 253 (1993). The court must determine whether substantial evidence supports each essential element of the offense and the defendant's perpetration of that offense. State v. McCullers, 341 N.C. 19, 29, 460 S.E.2d 163, 168 (1995). If so, the motion must be denied and the case submitted to the jury. State v. Styles, 93 N.C. App. 596, 602, 379 S.E.2d 255, 260 (1989). “Substantial evidence” is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981).

State v. Hairston, 137 N.C. App. 352, 354, 528 S.E.2d 29, 30 (2000).
    North Carolina General Statute . 14-360(a) (2005) provides that:
        If any person shall intentionally overdrive, overload, wound, injure, torment, kill, or deprive of necessary sustenance, or cause or procure to be overdriven, overloaded, wounded, injured, tormented, killed, or deprived of necessary sustenance, any animal, every such offender shall for every such offense be guilty of a Class 1 misdemeanor.

Id. Therefore, we must determine whether the State presented substantial evidence to support the jury's finding that defendant deprived Jake of necessary sustenance.
    Defendant argues that the testimony of Joann Carter-Cole (“Carter-Cole”) establishes that defendant was under no duty to feed Jake. The relevant passage is as follows:        Q Now, do you know who brought Jake to the barn of Dorothy and Wiley Wood? A Donald's son brought it up for me and I followed him behind. Q Did Donald bring it at all? A No, he wasn't present at the time. Q Now, who had the responsibility of feeding and supporting Jake from the time it was in the barn? A He was in the pasture. I did. Q Pasture, I'm sorry. And who had the responsibility to keep a safe environment for Jake? A It was me. Q At any time did you have any agreement with Donald Wood that he was to do anything in regard to Jake? A No, not at all.

    Carter-Cole's testimony was contradicted by Steve Berube (“Officer Berube”), an officer with the Harnett County Animal Control. Officer Berube stated that after Animal Control seized Jake, Lexie, and Bree, Carter-Cole called him and asked why her horses had been taken. Officer Berube stated, “[W]ell, I explained to her why the horses were impounded, and she stated that she and Donald were caretakers of the three horses, and that she had nothing to do with the dead horse.”
    In addition, Branch testified that on 25 July 2004, she asked defendant about the three other horses. The relevant exchange is as follows:        A The two horses that were down in the pasture, he said something about one of those horses was a friend of his that he was taking care of, keeping over there for him, and the other horse was his. Q How about the one at the barn? A That one was _ it was his girlfriend's. I think he said that he got it for his girlfriend or his girlfriend got it.

Further, Mashburn testified that defendant agreed to care for Jake and to maintain custody of the animal while Mashburn attempted to sell it. This evidence, viewed in the light most favorable to the State, supports the jury's determination that defendant committed misdemeanor cruelty to animals with respect to Jake. As such, this assignment of error is overruled.
    Defendant next contends the trial court committed plain error by instructing the jury on acting in concert using the North Carolina Pattern Jury Instructions.
        [T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)

(citation and quotation marks omitted).
    In the instant case, there was abundant evidence to support the jury's finding of guilt. As previously mentioned, there was evidence that defendant assumed responsibility for caring for Talladega and Jake, and that he starved the animals. Assuming, arguendo, that it was error for Judge Lanier to instruct the jury on acting in concert, it is not probable that, absent such error, the jury would have found defendant not guilty. As such, this assignment of error is without merit.
    No error.
    Judges McGEE and STEPHENS concur.
    Report per Rule 30(e).

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