State v. Arnold , 147 N.C. App. 670 ( 2001 )

WYNN, Judge

dissenting.

While I agree with the majority that the statute in question passes constitutional muster, I must dissent on the issue of sufficiency because at best, and in a light most favorable to the State, this evidence only shows that defendant was present for some period of time during an organized dogfight. Mere presence is not enough to obtain a criminal conviction under this statute. To obtain a conviction under the subject statute, the State must present evidence that the defendant actually participated as a spectator, which the majority defines as “to take part, join or share with others” as “an observer of an event.”

The State’s brief on appeal points out that about “three and a half minutes to four minutes elapsed from the time Deputy Holbrook pulled next to the bam and the time he announced ‘Sheriff’s Office’ and arrested defendant on the second floor of the barn.” The officer testified that he did not observe whether defendant was actually watching the dogfight. On other hand, defendant testified that he rode with friends to the barn; was unaware of the activities going on in the barn; remained in the car for sometime after his friends went into the barn; heard the dogs barking; left the vehicle to see what was going on; went upstairs in the bam; never saw the dogs fighting and was immediately arrested. The State provided no evidence to controvert defendant’s testimony. The State’s evidence therefore permitted no more than a suspicion that defendant participated in the dogfight as a spectator; as our courts have long held, mere suspicion that defendant committed the offense is insufficient to support a guilty verdict. See State v. Malloy, 309 N.C. 176, 305 S.E.2d 718 (1983).

While the State has a constitutionally sound interest in criminalizing participation by spectators in dogfights, the State’s duty to prove such participation beyond a reasonable doubt remains unabated. This evidence falls well short of that proof. I respectfully dissent.