State v. Powell

• Court: North Carolina Court of Appeals
• Writing for the Court: GREENE; ARNOLD; WYNN; WYNN
• Citation: State v. Powell, 426 S.E.2d 91, 109 N.C.App. 1 (N.C. App. 1993)
• Decision Date: 16 February 1993
• Docket Number: No. 9121SC969,9121SC969
• Parties: STATE of North Carolina v. Thomas Ellis POWELL.

Page 91

426 S.E.2d 91

109 N.C.App. 1

STATE of North Carolina v. Thomas Ellis POWELL.

No. 9121SC969.

Court of Appeals of North Carolina.

Feb. 16, 1993.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Debra C. Graves, Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter by Asst. Appellate Defender Teresa A. McHugh, Raleigh, for defendant-appellant.

GREENE, Judge.

Defendant appeals from a judgment entered 21 September 1990, which judgment is based on a jury verdict convicting defendant of involuntary manslaughter, N.C.G.S. § 14-18 (1986), a Class H felony with a maximum term of ten years and a presumptive term of three years.

The evidence presented by the State established that at approximately nine o'clock on the evening of 20 October 1989, twenty-year-old Hoke Prevette (Prevette), an avid jogger, left his home at 805 Salisbury Road in Winston-Salem, North Carolina, to run. At approximately eleven o'clock on the same evening, James Fainter and his wife returned to their home at 701 Cascade Avenue and discovered Prevette's body in their front yard. An autopsy revealed that Prevette, who was five feet, one and a half inches tall and weighed ninety-four pounds, died as a result of wounds caused by multiple dog bites. At the time of the attack on Prevette, a Winston-Salem ordinance provided:

(a) No dog shall be left unattended outdoors unless it is restrained and restricted to the owner's property by a tether, rope, chain, fence or other device. Fencing, as required herein, shall be adequate in height, construction and placement to keep resident dogs on the lot, and keep other dogs and children from accessing the lot. One (1) or more secured gates to the lot shall be provided.

Winston-Salem Code § 3-18 (1989).

David Moore (Moore), who lives two houses away from the Fainter residence on Cascade Avenue, testified that at approximately nine-thirty on the evening of 20 October 1989, he saw in his yard two rottweilers owned by defendant. Moore stated that the dogs, Bruno and Woody, approached him and his girlfriend and that one of them growled. Moore stamped his foot and the dogs ran down the street in the direction of the Fainter residence.

Winston-Salem police officer Jason Swaim went to defendant's house after the discovery of Prevette's body to investigate a report that defendant's dogs had been out that evening. When Officer Swaim told defendant that he wanted to discuss the dogs, defendant responded, "Oh my God, what have they done now?" Defendant admitted that his dogs had been out twice that day and that he had picked them up at approximately nine o'clock p.m. at the intersection of Cascade and Dinmont Streets, a location approximately forty feet from where Prevette's body was discovered. Defendant called his dogs, and they jumped in the back seat.

Officer Sandra Shouse conducted a consent search of defendant's home early on 21 October 1989, collecting a dog food bowl, a portion of the seat of defendant's car, and a portion of the wall from inside defendant's home. Officer Shouse had been dispatched on several occasions prior to 20 October 1989 to search for defendant's dogs. In July, 1989, defendant showed Officer Shouse where the dogs had dug out. Upon returning the dogs to the yard, defendant covered the escape hole with a cooler.

Robert Neill of the State Bureau of Investigation Crime Laboratory testified that six hairs removed from Prevette's clothing were canine; however, he could not match the hairs to a particular dog. An SBI forensic serologist found human blood on Woody's collar, on a sample of Woody's hair, on the dog dish, on a portion of the wall from defendant's home, and on defendant's car seat. According to the serologist, the blood could not be typed because of the presence of an inhibiting substance, possibly soap. A forensic odontologist testified that dental impressions taken from Bruno and Woody were compatible with some of the lacerations in the wounds pictured in scale photographs of Prevette.

Several witnesses testified to seeing Bruno and Woody running loose in the neighborhood prior to 20 October 1989. Jerry Parks (Parks), defendant's next-door neighbor, testified that the dogs were loose regularly, and that if the dogs were out in defendant's yard and someone walked by, the dogs would "challenge" the person. Parks told defendant that his dogs were a liability, and warned defendant of the dogs' propensity for digging out.

Thomas Dooley (Dooley), another of defendant's neighbors, testified that he saw Bruno and Woody out frequently during the summer of 1989. On one occasion, Dooley was outside in his yard with his three-year-old granddaughter when defendant came outside with his dogs. The dogs bolted from defendant and ran toward Dooley's granddaughter. Dooley got between the dogs and the child, but had some difficulty keeping the dogs away from her. Dooley telephoned police on two occasions to report that the dogs were out.

Forsyth County animal control officers picked up defendant's rottweilers on at least three occasions prior to 20 October 1989. In July and August, 1989, defendant left the dogs in the animal shelter for two and four days, respectively, before retrieving them.

Shelby Walker (Walker) testified that she was living with defendant when he purchased the puppies in the summer of 1988, and that she took care of the dogs for four or five months until she broke up with defendant and moved out. Walker testified that during this time, defendant regularly let the dogs run free, both day and night, and abused the dogs by hitting them and kicking them. According to Walker, defendant would push the dogs at people and encourage them to growl. Defendant consulted with an attack school because he wanted the dogs to be aggressive.

Animal psychologist Donna Brown (Brown), who specializes in applied animal behavior, testified regarding an evaluation for aggressive propensities that she performed on Bruno and Woody on 8 November 1989. The tests, which included a "dominant stare test," a "kitten test," a "startle test," and a "jogger test," were videotaped and shown to the jury. When conducting the jogger test, Brown moved a stuffed model through the dogs' field of vision. When the model was still, the dogs did not show predation; however, when the model moved, Bruno lunged at it, tore it, and shook it. Woody also attacked the moving model, but used more holding, clawing, and dragging than tearing. Brown opined based on the tests that the dogs exhibited predatory tendencies, that they treated a stare as a threat and began to growl, and that both dogs were more aggressive when together than when each dog was alone. According to Brown, the dogs were easily intimidated by a threatening gesture or tone of voice, which indicated that the dogs had probably been abused. Brown concluded that an attack on a person by Bruno and Woody would be consistent with her observations of their behavior.

Defendant presented several witnesses who testified that Bruno and Woody were friendly and playful and responded to defendant's commands to get down or sit. One witness's nine-month-old daughter played with the dogs and grabbed their tails, yet the dogs never growled or acted negatively toward the child. Several witnesses testified that they never saw defendant let the dogs outside of the fenced yard unattended, and that they never saw defendant abuse the dogs.

Animal behavioralist Peter Borthelt (Borthelt) testified that, although he had not evaluated defendant's dogs, the behavior displayed by the dogs in Brown's videotape was ambiguous. He also testified that the preferred method for evaluating animal behavior is to obtain background information regarding prior behavior of the dog, which allows the behavioralist to determine the appropriate tests to perform. Borthelt testified that dominance aggression in a pet dog occurs only in a social relationship such as a family, and that in order to determine whether Bruno or Woody manifested dominance aggression, one would have to study their behavior while with defendant. Borthelt also stated that the components of predatory behavior are the same as the components of play behavior--chasing, running, and grabbing.

Defendant's motions to dismiss made at the close of the State's evidence and at the close of all the evidence were denied. The jury found defendant "guilty of involuntary manslaughter on the basis of culpable negligence by leaving dogs unattended when not restrained and restricted to the owner's property by a fence adequate to keep the resident dogs on the lot." The trial court, after finding the existence of aggravating factors, sentenced defendant to a term of five years. Defendant appeals.

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The issues presented are (I) whether Winston-Salem Code § 3-18 is an ordinance designed for the protection of human life or limb; if so, (II) whether the State presented substantial evidence that defendant intentionally, willfully, or wantonly violated the ordinance; and, if so, (III) whether the State presented substantial evidence that defendant's violation of the ordinance was the proximate cause of Prevette's death and, in this regard, whether the State is required to show that defendant's dogs had vicious propensities of which defendant was aware. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980).

I

Defendant argues that Section 3-18 is not an ordinance designed for the protection of human life or limb and that, therefore, the violation of the ordinance is not an unlawful act that can serve as a basis for conviction of involuntary manslaughter. We disagree.

The intentional, willful, or wanton violation of any "safety" statute or ordinance, which proximately results in death, can support a conviction of involuntary manslaughter. State v. Cope, 204 N.C. 28, 31, 167 S.E. 456, 458 (1...