Michel v. Commonwealth

• Court: Virginia Court of Appeals
• Writing for the Court: CLIFFORD L. ATHEY, JR. JUDGE
• Docket Number: 0338-24-3
• Decision Date: 15 April 2025
• Citation: Michel v. Commonwealth, 0338-24-3 (Va. App. Apr 15, 2025)
• Parties: TERRY EUGENE MICHEL v. COMMONWEALTH OF VIRGINIA

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TERRY EUGENE MICHEL v. COMMONWEALTH OF VIRGINIA

No. 0338-24-3

Court of Appeals of Virginia

April 15, 2025

Dated 11/05/2025

Dated 05/27/2025

Upon a Rehearing En Banc

FROM THE CIRCUIT COURT OF FRANKLIN COUNTY Circuit Court Nos CR23053550-00 and CR23053551-00 Timothy W. Allen, Judge

Aaron B. Houchens (Aaron B. Houchens, P.C., on briefs), for appellant.

Angelique Rogers, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Athey, Callins and Frucci Argued at Salem, Virginia

Before Chief Judge Decker, Judges Beales, O'Brien, AtLee, Malveaux, Athey, Fulton, Causey, Friedman, Chaney, Raphael, Lorish, Callins, White, Frucci and Bernhard

By memorandum opinion dated April 15, 2025, a panel of this Court, with one judge dissenting, reversed the trial court's judgment of two counts of felony animal cruelty and set aside the jury verdicts. We granted the Commonwealth's petition for rehearing en banc and stayed the mandate of that decision.

Upon rehearing en banc, the judgment of the trial court is affirmed without opinion by an evenly divided Court. See Code § 17.1-402(E). Accordingly, the opinion previously rendered by a panel of this Court on April 15, 2025, is withdrawn and the mandate entered on that date is vacated. The appellant must pay to the Commonwealth of Virginia $150 damages.

Chief Judge Decker, Judges Beales, O'Brien, AtLee, Malveaux, Fulton, White, and Frucci voted to affirm the judgment of the trial court.

Judges Athey, Causey, Friedman, Chaney, Raphael, Lorish, Callins, and Bernhard voted to reverse said judgment.

It is ordered that the trial court allow counsel for the appellant an additional fee of $500 for services rendered the appellant on the rehearing portion of this appeal, in addition to counsel's costs and necessary direct out-of-pocket expenses.

The Commonwealth shall recover of the appellant the amount paid court-appointed counsel to represent him in this appeal, counsel's costs and necessary direct out-of-pocket expenses, and the fees and costs to be assessed by the clerk of this Court and the clerk of the trial court.

This order shall be certified to the trial court.

Costs due the Commonwealth by appellant in Court of Appeals of Virginia:

Attorney's fee $2500.00 plus costs and expenses

Before the Full Court

On April 29, 2025, the appellee, by the Attorney General of Virginia, filed a petition requesting that the Court set aside the judgment rendered on April 15, 2025, and grant a rehearing en banc on the issue(s) raised in the petition.

On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia, the Court grants the petition for rehearing en banc and reinstates the appeal of those issues on the docket. The Court stays the mandate previously entered in this case pending the Court's en banc decision.

The parties must file briefs in compliance with the schedule set forth in Rule 5A:35(b).

MEMORANDUM OPINION ^[*]

CLIFFORD L. ATHEY, JR. JUDGE

Following a jury trial, on November 2, 2023, the Circuit Court of Franklin County ("trial court") convicted Terry Eugene Michel ("Michel") on two counts of felony animal cruelty, in violation of Code § 3.2-6570(F). On appeal, Michel first assigns error to the trial court for convicting him of two felony offenses pursuant to Code § 3.2-6570(F) instead of two misdemeanor offenses pursuant to Code § 3.2-6570(A). Michel also assigns error to the trial court for declining to give his requested jury instructions that would have permitted the jury to find Michel guilty of the misdemeanor offenses in the alternative. In support, Michel contends that the trial court erred by failing to bar his felony convictions under Code § 3.2-6570(F) for "killing" both companion animals as a result of the term "kill" being included as a prohibited action in Code § 3.2-6570(A) (misdemeanor) while the term "kill" is omitted as a prohibited action in Code § 3.2-6570(F) (felony). Since we find that the trial court erred in both its interpretation and application of Code § 3.2-6570 to the facts in this case, we reverse the trial court's judgment.

I. Background^[1]

In February of 2023, Michel and his wife, Rhonda Michel ("Rhonda"), resided together in Ferrum, Virginia. The couple jointly owned two black Labrador Retrievers: three-year-old Colby and "a little over" one-year-old Caleb. Michel and Rhonda initially purchased their three-year-old lab, Colby, then they served as foster owners of Caleb before later adopting him from the local humane society. Both dogs lived in the Michel family home and were cared for by the family. Neither dog exhibited aggressive tendencies, and Rhonda testified that Colby, in particular, had a "really sweet" disposition.

On February 7, 2023, Colby and Caleb went missing from the family home. Michel subsequently called 9-1-1 to report that the dogs had been stolen by two unknown men in an older Jeep Cherokee. The Michel family also placed flyers at various locations throughout the community concerning the disappearance of the dogs and providing Rhonda's phone number to contact in the event the dogs were found.

The following week, while crossing Carolina Springs Roads, a local man named Walker Young ("Young") discovered what appeared to be the dogs' deceased bodies. Young contacted Rhonda to report his discovery after acquiring one of the family's flyers at a local restaurant. After being informed by Young of the location of the dogs' bodies, Rhonda contacted the Franklin County Sheriff's Office to report Young's discovery. Franklin County Criminal Investigator Steven McFarling ("Investigator McFarling") was then dispatched to the location of the dogs' bodies as identified by Young.

Upon his arrival, Investigator McFarling found Rhonda, Young, and "several other individuals" viewing the dogs' bodies. Investigator McFarling then "had everyone step away," to allow him to investigate and photograph the scene, and to "preserve[] the collection of evidence." Michel subsequently arrived at the scene in a white pickup truck while the investigation was occurring. Investigator McFarling observed a hole in the back of one the dogs' heads that he felt was "suspicious." Since the dogs were microchipped, the Franklin County Public Safety team at the scene utilized a chip reader to confirm their identities. The chip reader subsequently confirmed that the bodies located at the scene were Colby and Caleb.

Following the completion of Investigator McFarling's initial investigation that day, an employee of Franklin County Animal Control arrived and transported the dogs' bodies to ViTALS Lab located at Virginia Tech so that the bodies could be preserved for a necropsy. Subsequently, on February 15, 2023, Dr. Teresa Southard ("Dr. Southard"), a veterinary pathologist at Virginia Tech, performed a necropsy on both Caleb and Colby. As a result, she determined that both dogs died from "ballistic trauma" consistent with being shot in the head at "point blank or very near range." The necropsy performed by Dr. Southard also revealed that neither dog suffered "from underlying disease."

The day following the completion of the initial investigation at Carolina Springs Road, Investigator McFarling and another deputy conducted a video-recorded interview with Michel.^[2]During the interview, Michel confessed to killing Caleb and Colby. Michel explained that he had initially transported both dogs to a wooded area along Prillaman Switch, a rural road in Franklin County. He admitted to tethering the two dogs together before first shooting Colby in the back of the head since he was "closest to [him]." Next, Michel stated that he "froze and looked over at [Caleb]" before shooting the dog to not "give him any chance to think anything else." Michel next admitted to the officers that he had used leaves to hide the dogs' bodies in the wooded area along Prillaman Switch. Michel further admitted to driving to a nearby park where he made the 9-1-1 call^[3] alleging that the dogs had been stolen. When asked by the officers why he had killed the dogs, Michel explained that he did so to "save his marriage" because he felt the dogs were damaging his relationship with Rhonda.

Next, Michel admitted that a week after killing the dogs, he moved their bodies to the spot off of Carolina Springs Road, which was "a more public location," because he hoped the new location would increase the likelihood that the bodies "would be discovered." Michel's account was subsequently corroborated by a video recording made by a local woman showing Michel along Carolina Springs Road near where the bodies were found. The video recording provided to law enforcement depicted Michel driving his truck, with two trash cans in the truck bed, near the wooded area where the bodies were ultimately discovered along Carolina Springs Road. After the interview concluded, Investigator McFarling drove to Prillaman Switch where Michel had admitted to killing the dogs. He found what appeared to be dried blood on leaves lying on the ground where the killings occurred.

In addition, Lieutenant J.P. Nolen ("Lieutenant Nolen") obtained a search warrant for Michel's home as well as a warrant for his arrest that he executed later that same day. During the search of the Michel home, Lieutenant Nolen collected a 9mm firearm and ammunition located in the family's upstairs bedroom. He also took photographs of Michel's truck, the trash cans, the firearm, and ammunition. On June 5, 2023, the Commonwealth subsequently sought, and a grand jury returned, true bills indicting Michel for allegedly committing two counts of felony animal cruelty in violation of Code § 3.2-6570.^[4]

Prior to the scheduled October 4,...