Criminal Practice – Larceny of a Dog – Direct & Circumstantial Evidence

Larceny of a Dog – Direct & Circumstantial Evidence

State v. Sexton (Lawyers Weekly No. 14-16-0492, 10 pp.) (Mark Davis, J.) Appealed from Wake County Superior Court (Michael O’Foghludha, J.) N.C. App. Unpub.

Holding: The state proved larceny of a dog via evidence of defendant’s ill will towards his neighbors’ dog, his obtaining control over the dog while the neighbors were away on vacation, his statement that he was “going to take care of this … once and for all,” and the fact that he never returned the dog to his neighbors.

We find no error in defendant’s conviction of larceny of a dog.

The state presented evidence that defendant’s dogs had chased the Marshalls’ dog, Malibu, in the past and that defendant had complained that Malibu came onto his property “all the time.”

While the Marshalls were on vacation, a neighborhood child was walking Malibu, but the child accidentally dropped her leash, and Malibu “took off.” Richard Aleksic testified that he saw defendant chase Malibu through the wooded area near his house; (2) grab Malibu’s leash and pull her back onto his property; and (3) shout, “I got you now, you motherf–er…. I’m going to take care of this f–ing sh–t once and for all” after he had grabbed Malibu’s leash.

When a deputy told defendant that Mr. Aleksic had seen him grab Malibu, defendant replied that he had been at work on the day in question and that he did not know Mr. Aleksic.

Two days later, Mr. Aleksic was driving in his car and discovered that defendant was following him. For approximately 20 minutes, defendant continued to follow Mr. Aleksic while making “obscene gestures, giving [him] the finger … [and] riding [his] bumper.” Mr. Aleksic called the Highway Patrol and was instructed to turn on his four-way flashers. Once Mr. Aleksic did so, defendant stopped following him.

The state’s evidence demonstrated that defendant knew Malibu was the Marshalls’ dog and that the Marshalls had not given defendant consent or permission to take Malibu.

The state offered circumstantial evidence of defendant’s intent to permanently deprive the Marshalls of their dog through Mr. Aleksic’s testimony that he overheard defendant say he was “going to take care of this f–ing sh–t once and for all” and the fact that defendant never returned Malibu to the Marshalls.

Furthermore, the fact that defendant followed Mr. Aleksic’s vehicle for approximately 20 minutes under these circumstances allowed the jury to infer that he was trying to intimidate Mr. Aleksic so as to prevent him from testifying against defendant.

Based on all of this evidence, a reasonable juror could have concluded that defendant was guilty of taking and carrying away Malibu without the Marshalls’ consent and with the intent to permanently deprive them of their dog. Accordingly, the trial court did not err in denying defendant’s motion to dismiss.

Defendant also asserts that the trial court committed plain error by admitting testimony relating to (1) his following Mr. Aleksic’s car; (2) his use of profane language; (3) the “big shaggy beard” he had at the time of the incident and the fact that he shaved it prior to trial; and (4) the fact that he was digging in his backyard with a tractor the day after Malibu was discovered to be missing.

Because defendant has failed to provide this court with any specific argument as to why the admission of each challenged piece of evidence rose to the level of plain error, he has failed to meet his burden of establishing plain error.

No error.