An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedure.



                                 NO. COA13-665
                        NORTH CAROLINA COURT OF APPEALS

                             Filed:     7 January 2014


STATE OF NORTH CAROLINA

      v.                                      Edgecombe County
                                              No. 12 CRS 2258
REGGIE DEVON AVENT



      Appeal by defendant from judgments entered 7 March 2013 by

Judge Walter H. Godwin, Jr. in Edgecombe County Superior Court.

Heard in the Court of Appeals 6 November 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Tammy A. Bouchelle, for the State.

      Winifred H. Dillon, for defendant-appellant.


      CALABRIA, Judge.


      Reggie    Devon    Avent    (“defendant”)      appeals     from   judgments

entered upon jury verdicts finding him guilty of possession of a

dog for dog fighting and baiting (“dog fighting”), cruelty to

animals, and restraining a dog in a cruel manner (“malicious

restraint”).      We find no error.

                                 I. Background
                                       -2-
    On    17    April     2012,     Officer    Curtis    Robinson    (“Officer

Robinson”)     of   the    Rocky     Mount    Police    Department    (“RMPD”)

responded to a Crime Stopper’s tip               regarding dogs that were

located behind a house adjacent to an apartment building                    on

North   Raleigh     Street   in     Rocky    Mount,    North   Carolina   (“the

property”).     Elizabeth Swartz (“Officer Swartz”), Rocky Mount’s

animal control supervisor, also responded to assist with the

investigation, along with other members of RMPD (collectively,

“the officers”).

    Officer Robinson discovered three pit bull dogs:                  a brown

female with her puppies confined in a pen, a black and white pit

bull, and a brown and white pit bull (collectively, “defendant’s

dogs”).   The brown female pit bull was kept in a pen covered

with tarps.     Although a small container of food was in the pen,

no water was available.           Neither of the other dogs had adequate

food or water, and the black and white pit bull had several

flies feeding on a wound on its ear.                    According to Officer

Swartz, the dogs appeared underweight, their ribs were visible,

and their stomachs were tucked into an “hourglass shape.”

    All three dogs were chained to the property, including the

female inside the pen.        However, the chains restraining the two

dogs outside the pen appeared to be heavy gauged chains intended
                                           -3-
for industrial use.         One of the chains removed from defendant’s

dogs weighed thirteen pounds.               Due to the chains tethering them

in place, the dogs were unable to reach the few available empty

dishes.

      The officers discovered a trash can in the yard containing

penicillin      for     livestock,         medicine,        vitamin       supplements,

syringes, and a break stick commonly used in dog fighting to

separate    dogs.       The    break       stick    had     gouge   marks        and    was

discolored with what appeared to be blood.                    (T. p 96) Defendant

later admitted the medical supplies and break stick were his and

that he used them on his dogs.

      A   beaten    trail     led   into    the    woods     from   the     yard       where

defendant’s     dogs    were    chained.           Three    more    pit    bulls       were

discovered in a clearing about twenty feet away.                            These dogs

(“Stancil’s     dogs”)        belonged      to     defendant’s        friend,          Kelly

Stancil.     Stancil’s dogs were also restrained by unnecessarily

heavy chains.       One pit bull had wrapped its chain several times

around nearby trees, shortening its reach of available space,

and   another   appeared       to   have    several        untreated      bite   wounds.

Stancil’s dogs did not have access to adequate food or water.

      Another trail led into the woods away from the clearing

where Stancil’s        dogs were restrained.                Fifty feet away, the
                                          -4-
officers discovered a clearing in the woods approximately thirty

feet in diameter.           One tree on the edge of the clearing appeared

to be   used to chain dogs.                Another tree had a rubber tube

hanging from it that appeared to have been repeatedly bitten by

dogs.   A portion of the clearing extending towards North Raleigh

Street had been freshly cut.               The grass had been cut short and

there   were    tire        tracks    visible     where     vehicles         had    parked.

Officers     discovered        canine     skulls    and     bones       in    the     woods

approximately fifteen feet from the clearing.

    All      six     adult     pit      bull     dogs     and     the   puppies        were

transported to the animal shelter.                       The next day, defendant

arrived at the animal shelter to speak to Officer Swartz and

attempted      to    explain     his     dogs’     presence       on    the    property.

Although     Officer        Swartz     never     mentioned        the   break        stick,

defendant told her he “only used the stick when the dogs broke

loose   from        their     chain     [sic]     and     attacked      each        other.”

Defendant later returned to the animal shelter demanding to know

what evidence RMPD “had on him.”

    Defendant         was     arrested    and     charged        with   dog        fighting,

misdemeanor cruelty to animals, and malicious restraint.                                  At

trial   in   Edgecombe        County    Superior        Court,    the   jury       returned

verdicts finding defendant guilty of all three offenses.                               On 7
                                         -5-
March 2013, the trial court sentenced defendant to a minimum of

eight and a maximum of nineteen months for the dog fighting

charge and 120 days each for the misdemeanor cruelty to animals

and malicious restraint offenses.                 The trial court suspended

defendant’s misdemeanor sentences and placed him on supervised

probation at the conclusion of his active sentence for the dog

fighting offense.         The trial court also ordered as a special

condition of probation that defendant was not to possess, own,

or   control     any     animal     during      his    probationary     sentence.

Defendant appeals.

                           II. Motion to Dismiss

      Defendant first argues the trial court erred in denying his

motion    to   dismiss    because       the    evidence   was   insufficient    to

establish that defendant possessed the requisite intent for each

charge.    We disagree.

      “This Court reviews the trial court’s denial of a motion to

dismiss de novo.”         State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007) (citation omitted).                  “In its analysis, the

trial court must determine whether there is substantial evidence

(1) of each essential element of the offense charged and (2)

that [the] defendant is the perpetrator of the offense.”                      State

v.   Bradshaw,    366    N.C.     90,    93,    728   S.E.2d    345,   347   (2012)
                                         -6-
(citations       omitted).      “The     trial          court    must       consider      the

evidence in the light most favorable to the State, drawing all

reasonable inferences in the State’s favor.”                       Id. at 92-93, 728

S.E.2d at 347 (citations omitted).

      In   the    instant    case,     both    possession        of     a   dog     for   the

purpose of dog fighting and baiting and misdemeanor cruelty to

animals    require     intent       specific       to    the     charge.            For   dog

fighting, a defendant must intend “that the dog be used in an

exhibition featuring . . . the fighting of that dog with another

dog or with another animal[.]” N.C. Gen. Stat. § 14-362.2(b)

(2012).     For misdemeanor cruelty to animals, a defendant must

“intentionally . . . wound, injure, torment, kill, or deprive

[any animal] of necessary sustenance[.]”                      N.C. Gen. Stat. § 14-

360(a) (2012).        In contrast, the malicious restraint offense

requires a defendant “maliciously restrain[] a dog using a chain

or wire grossly in excess of the size necessary to restrain the

dog   safely[.]”     N.C.    Gen.    Stat.     §   14-362.3       (2012).           For   the

purposes     of    this     statute,    “maliciously”            means       “the     person

imposed    the    restraint     intentionally           and     with    malice       or   bad

motive.”    Id.

      The State presented evidence showing that defendant’s dogs

had doghouses available, but inadequate food and no water.                                The
                                         -7-
mother pit bull was the only dog with access to food, and there

was only a “small container” of food available.                    The dogs were

noticeably underweight, though not emaciated.                   Defendant’s dogs

were restrained by heavy chains.                 The chains appeared to be

intended     for    industrial    use,     but   not    for    restraining    dogs.

Officer Swartz testified the chains were too heavy for the dogs,

and the dogs were dragging the chains.

      There    was   debris     on   the    ground     near    defendant’s    dogs,

consisting     of    rubber   gloves,      syringes,     and    gauze.     Officer

Swartz     testified     that    the       livestock     vitamin    supplements,

syringes, penicillin, and peroxide packets found in the trash

can   near    defendant’s     dogs     were    items    commonly    used     in   dog

fighting to build the animals’ strength and endurance and to

clean wounds without veterinary care.                  She also indicated that

she believed defendant was self-medicating his animals for the

purposes of dog fighting.

      The rubber hose on the tree in the clearing was evidence of

training dogs to fight.          Officer Swartz testified that when dogs

pull on a rubber hose, “the resistance . . . will strengthen

their muscles . . . and also give them more endurance so they’ll

last longer in a fight.”         The break stick found in the trash can

near defendant’s dogs was another commonly used tool in dog
                                          -8-
fighting, intended to separate dogs engaged in a fight.                              There

was also evidence of canine remains around the third clearing,

where the officers discovered canine skulls and bones.

       The medical supplies and vitamin supplements, together with

the evidence of the clearing, the rubber tubes, and the canine

remains, indicate that dog fighting occurred in close proximity

to the yard where defendant’s dogs were restrained.                               Taken in

the light most favorable to the State, the evidence supports

reasonable      inferences      that    defendant       intended     to    utilize     his

dogs    for     dog     fighting,       that     defendant’s        dogs      had     been

intentionally deprived of necessary food and water, and that

defendant’s      dogs     were     intentionally            restrained       by     chains

exceeding the size necessary to safely restrain them.                                Under

such circumstances, “it is for the jury to decide whether the

facts, taken singly or in combination, satisfy [it] beyond a

reasonable doubt that the defendant is actually guilty.” State

v.   Fritsch,    351     N.C.    373,   379,     526    S.E.2d      451,     455,    cert.

denied,   531     U.S.    890,    148    L.     Ed.    2d    150    (2000)    (citation

omitted).        The State presented such substantial evidence in

this    case.         Accordingly,      the     trial       court   properly        denied

defendant’s motion to dismiss.

                             III. Jury Instruction
                                          -9-
    Our Courts may review unpreserved issues for plain error

when they involve errors in jury instruction.                     State v. Gregory,

342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).                   Plain error arises

when the error is “so basic, so prejudicial, so lacking in its

elements that justice cannot have been done[.]” State v. Odom,

307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation and

internal quotations omitted).               Under the plain error rule, a

defendant       must   convince    the    Court    “not    only     that   there      was

error, but that absent the error, the jury probably would have

reached a different result.”               State v. Jordan, 333 N.C. 431,

440, 426 S.E.2d 692, 697 (1993).

    The statute for malicious restraint states that a person

“who maliciously restrains a dog using a chain . . . grossly in

excess    of    the    size   necessary    to     restrain    the    dog   safely     is

guilty of a Class 1 misdemeanor.” N.C. Gen. Stat. § 14-362.3

(2012).        The statute indicates “maliciously” means “the person

imposed    the    restraint       intentionally      and     with   malice       or   bad

motive.”       Id. (emphasis added).        Defendant argues that the trial

court failed to instruct the jury on the definition of malice,

and therefore committed plain error.               We disagree.

    In the instant case, there was no pattern jury instruction

available       for    the    malicious    restraint       charge.         The    State
                                   -10-
submitted proposed jury instructions, which defendant had the

opportunity to review.        The trial court instructed the jury as

follows:

                 The defendant has been charged with
            restraining a dog in cruel manner [sic].
            For you to find the defendant guilty of this
            offense, the [S]tate must prove two things
            beyond a reasonable doubt.
            First, that the defendant did restrain a dog
            using a chain grossly in excess of the size
            necessary to restrain the dog safely.
                 And, second, that the defendant acted
            maliciously.    Maliciously means that the
            person imposed the restraint intentionally
            and with malicious or bad motive.
                 So if you find from the evidence beyond
            a reasonable doubt that on or about the
            alleged date the defendant did restrain a
            dog using a chain grossly in excess of the
            size necessary to restrain the dog safely
            and that the defendant acted maliciously or
            with bad motive, then it would be your duty
            to return a verdict of guilty.
                 If you do not so find or if you have a
            reasonable doubt as to one or both of these
            things, then it would be your duty to return
            a verdict of not guilty.

The   court    specifically    instructed   the   jury   on   the   term

“maliciously,” and indicated it meant “that the person imposed

the restraint intentionally and with malicious or bad motive,”

which substantially mirrors the language of N.C. Gen. Stat. §

14-362.3.     The evidence at trial indicated that at least one of

defendant’s dogs had been tethered with a thirteen pound chain,

and both Officers Robinson and Swartz testified that the chains
                                               -11-
used on defendant’s dogs were much heavier than necessary to

safely    restrain       them.          Officer       Swartz   specifically     testified

that the chains used were intended for “any kind of industrial

use   .   .    .    chaining     property       down,     chaining    gates     shut,    tow

chains . . . but not for a dog.”                        In addition, Officer Swartz

testified to evidence of dog fighting on the property, including

the medical supplies, break stick, and canine remains on the

outskirts of an apparent dog fighting ring.

      The statutory language does not require a finding of malice

in order to support a conviction.                       The jury may also find that

defendant       imposed      the    restraint         intentionally     and     with    “bad

motive.”        N.C. Gen. Stat. § 14-362.3 (2012).                      In the instant

case,     the       language       of    the    jury     instruction      reflects       the

statutory       language.           The    jury       ultimately     returned       verdicts

finding defendant guilty of all three charges, indicating that

they found evidence beyond a reasonable doubt for all                                  three

offenses,          including     malicious        restraint.          While     a    better

practice would have been to give a specific instruction defining

malice,       there    was     sufficient       evidence       provided   at    trial     to

indicate that the jury would have come to the same conclusion

even with such an instruction.
                                     -12-
    Assuming,        arguendo,    that    the    trial   court    should       have

instructed     on     malice,     defendant’s      argument      still     fails.

Defendant fails to show that the jury would have returned a

different     verdict     even     with     an    instruction     on     malice.

Therefore, defendant fails to demonstrate plain error.

                                 IV. Conclusion

    The      State    presented    substantial     evidence      at    trial    to

support the element of intent for all offenses.               Defendant fails

to show that the jury would have returned a different verdict

had the trial court included a specific instruction on malice.

We hold the trial court properly denied defendant’s motion to

dismiss and that the instruction given for malicious restraint

reflects the language of the statute.               For these reasons, we

find no error.

    No error.

    Judges HUNTER, Robert C. and HUNTER, JR., Robert N. concur.

    Report per Rule 30(e).
