Mosca v. Commonwealth

• Decision Date: 27 November 2012
• Docket Number: Record No. 1084-11-4
• Parties: CAROL MOSCA v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Court of Appeals

CAROL MOSCA

v.COMMONWEALTH OF VIRGINIA

Record No. 1084-11-4

COURT OF APPEALS OF VIRGINIA

NOVEMBER 27, 2012

UNPUBLISHED

Present: Chief Judge Felton, Judges Alston and McCullough

Argued at Alexandria, Virginia

MEMORANDUM OPINION^* BY

JUDGE ROSSIE D. ALSTON, JR.

FROM THE CIRCUIT COURT OF WARREN COUNTY

Dennis L. Hupp, Judge

Carol Elizabeth Mosca, pro se.

Robert H. Anderson, III, Senior Assistant Attorney General

(Kenneth T. Cuccinelli, II, Attorney General, on brief), for

appellee.

Carol Mosca (appellant) appeals an order from the Circuit Court of Warren County (trial court) declaring her in violation of Code §§ 3.2-6569 and -6500 based on her inadequate care of her dog, constituting a direct and immediate threat to the animal's life, safety or health. The trial court granted custody of the animal to the Humane Society of Warren County and ordered appellant to pay $1,350 to the Humane Society. Appellant contends that the trial court erred by applying the preponderance of the evidence standard of law in finding a violation of Code §§ 3.2-6569 and -6500 when the correct standard of law to be applied was beyond a reasonable doubt. For the reasons that follow, we find that the trial court erred and that the error was not harmless. As a result, we reverse and remand for future proceedings consistent with this opinion, should the Commonwealth be so inclined.

I. Background¹

"Under settled principles, we review a trial court's factfinding 'with the highest degree of appellate deference.'" Cooper v. Commonwealth, 54 Va. App. 558, 572, 680 S.E.2d 361, 368 (2009) (quoting Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006)). In this case, the Commonwealth prevailed in the trial court. "On appeal, we must view the evidence in the light most favorable to the prevailing party below . . . ." Roanoke Belt, Inc. v. Mroczkowski, 20 Va. App. 60, 67, 455 S.E.2d 267, 270 (1995).

So viewed, the evidence indicated that on December 12, 2010, appellant moved to the rental property owned by Joseph King at 186 Rocky Boulder Lane in Warren County. Appellant owned two dogs, one female dog named Bellaluna (the subject of this case) and one male dog. Over the three months that appellant resided in Warren County, her dogs were reported to be running at large multiple times.

Deputy Carper of the Warren County Sheriff's Office had multiple encounters with appellant and her dogs. On December 14, 2010, Deputy Carper responded to a call and observedthe dogs on appellant's property, but unconfined. Deputy Carper spoke with appellant, and appellant agreed that she would try to keep her dogs confined. Nine days later, he saw one of the dogs in neighboring Fauquier County but could not capture it. In early January, Deputy Carper responded to a call about an injured animal and discovered Bellaluna lying in the snow, albeit uninjured.

Deputy Gomez and Deputy Darr also responded to several calls regarding appellant's dogs running at large. On January 10, 2011, Deputy Darr responded to appellant's property. Deputy Darr had seen the dogs before he arrived at appellant's house, and they were not on appellant's property. When appellant answered the door, she told Deputy Darr that she had been jogging with the dogs. However, Deputy Darr had not seen appellant with the dogs earlier, and it was then that appellant told Deputy Darr that she could not get the dogs to stay on her property. Deputy Gomez also participated in multiple attempts to trap Bellaluna.

On January 24, 2011, Warren County Animal Control caught Bellaluna when she was again running at large. Shortly after she was captured, Bellaluna gave birth to puppies.

On January 27, 2011, Deputies Gomez, Carper, and Darr petitioned the general district court for a hearing regarding custody of Bellaluna under Code § 3.2-6569.

The trial court held a de novo bench trial on April 8, 2011. At the trial, Deputies Darr and Carper testified to the events described above. Deputy Gomez testified that she had seen appellant's dogs running off of appellant's property on at least four occasions and that there were two unverified complaints of one of appellant's dogs biting another animal.² Deputy Gomez stated that appellant had pled guilty in general district court to seven counts of dogs running at large. Additionally, the Commonwealth introduced into evidence photographs that DeputyGomez had taken, depicting the dogs approximately three fourths of a mile from appellant's property.

Joseph King, the owner of the property appellant rented, testified that he was concerned that appellant's dogs were going to get shot, so he put up a "dog run." King asserted that he never saw the dogs attached to the dog run and it appeared that appellant had never used it.

Appellant testified that she had moved to Warren County so that her dogs would be able to "run around the property and be free to roam the neighborhood." She asserted that she did not put her dogs in the dog run because she wanted them to be able to run free. Appellant also stated that she provided food and shelter for her dogs, including a doghouse for Bellaluna, and that she loved them as if they were her children. Appellant also acknowledged that she had been previously found guilty of the offense of dogs running at large in Henrico County.

In closing arguments, the Commonwealth argued that this was a civil petition and thus should be decided by a preponderance of the evidence civil standard. Appellant, through her counsel "conceded that the case should be decided with a preponderance of the evidence civil standard, [but] asked the [trial court] to consider this case to be similar to a case of removing a child from a parent and us[e] a higher standard."

The trial court ruled that the Commonwealth had shown by a preponderance of the evidence that Bellaluna had been denied adequate care as defined by Code § 3.2-6500 that constituted a direct and immediate threat to her life, safety or health, thus meeting the standard for seizure and impoundment set forth in Code § 3.2-6569. The trial court also ordered Bellaluna into the custody of the Humane Society of Warren County and ordered appellant to pay $1,350 to the Humane Society. The trial court specifically acknowledged that "in deciding this case, it applied the civil burden of proof, that being preponderance of the evidence. TheCommonwealth's Attorney had argued that this was the applicable burden, and the [appellant] offered no objection thereto." On May 6, 2011, the trial court filed the order with its findings from the bench trial.

On April 23, 2011, prior to the entry of the trial court's order of May 6, 2011, appellant filed a motion for rehearing, arguing that Code § 3.2-6569 required that the Commonwealth prove its case beyond a reasonable doubt and that the trial court erroneously relied on the Commonwealth's claim that a preponderance of the evidence standard applied at trial. Appellant filed a memorandum in support of her motion for rehearing on May 16, 2011. On May 20, 2011, the trial court sent a letter to the Commonwealth's attorney regarding appellant's motion for rehearing. The letter acknowledged that appellant had filed a motion for rehearing alleging that the trial court applied the wrong burden of proof at trial. The letter requested that the Commonwealth respond in writing to appellant's motion within fourteen days. The Commonwealth subsequently filed a response to appellant's motion.

By May 27, 2011, twenty-one days had passed since the trial court entered its order in this case. The trial court had not taken action on appellant's motion for rehearing, so it lost jurisdiction. See Rule 1:1. This appeal followed.

II. Analysis

This Court reviews questions of law, such as the correct standard of proof, de novo. See Mulford v. Walnut Hill Farm Group, LLC, 282 Va. 98, 111, 712 S.E.2d 468, 476 (2011) (holding that the question of which party bears the burden of proof is reviewed de novo).

A. Waiver & Approbate and Reprobate

As an initial matter, the Commonwealth argues that appellant's claim is waived because appellant either failed to raise the issue of the standard of proof at trial or approbated and reprobated. We find that appellant's claim is not waived for either reason.

Rule 5A:18 provides,

No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to preserve the issue for appellate review.

In addition, Virginia courts have long held that "[n]o litigant . . . will be permitted to approbate and reprobate - to invite error . . . and then to take advantage of the situation created by his own wrong." Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988). A litigant, "having agreed upon the action taken by the trial court, should not be allowed to assume an inconsistent position." Clark v. Commonwealth, 220 Va. 201, 214, 257 S.E.2d 784, 792 (1979).

At trial in the instant case, appellant rather inarticulately "conceded that the case should be decided with a preponderance of the evidence civil standard, [but then] asked the [trial court] to consider this case to be similar to a case of removing a child from a parent and us[e] a higher standard." Moreover, appellant filed a motion for rehearing in the trial court on April 23, 2011, before the trial court filed its final order in this case. In her motion, appellant clearly stated her position that Code § 3.2-6569(C) required that the Commonwealth prove its case beyond a reasonable doubt and that the trial court erroneously used a preponderance of the evidence standard at trial. Although the trial court did not rule on appellant's motion, it was actually aware of the motion, as evidenced by its letter of May 20, 2011. Through this motion,...