Pelloni v. Commonwealth

• Decision Date: 02 February 2016
• Docket Number: Record No. 0586–15–1.
• Citation: 781 S.E.2d 368,65 Va.App. 733
• Parties: Nicholas David PELLONI v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

65 Va.App. 733

781 S.E.2d 368

Nicholas David PELLONI

v.COMMONWEALTH of Virginia.

Record No. 0586–15–1.

Court of Appeals of Virginia, Chesapeake.

Feb. 2, 2016.

W. McMillan Powers, Assistant Public Defender, for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

HUFF, Chief Judge.

Nicholas David Pelloni ("appellant") appeals his conviction of felony cruelty to animals, in violation of Code § 3.2–6570(F). Following a bench trial in the Circuit Court of the City of Portsmouth ("trial court"), appellant was sentenced to twelve months in jail. On appeal, appellant asserts that the trial court erred in denying his motion to strike and renewed motion to strike because "the evidence was insufficient in that it failed to prove beyond a reasonable doubt that [appellant] did willfully inflict inhumane injury or pain on the companion animal Hannibal." For the following reasons, this Court affirms appellant's conviction.

I. BACKGROUND

On appeal, "we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial." Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004) ). So viewed, the evidence is as follows.

On July 31, 2014, Deputy Animal Control Officer Heather Harrison ("Harrison") arrived at the home of Jennifer Mason ("Mason") in response to a call "stating that there were several puppies in custody at this location that should be turned in." There is no evidence as to who made the call although Mason testified that it was not her. When Harrison arrived, Mason informed her that there were puppies located in her garage where appellant, the owner of the puppies, was living at the time. Mason also testified that it had never been her responsibility to care for the dogs and the only way she knew they were there was because she occasionally saw them in passing.

As soon as Mason opened the garage door, Harrison saw several boxer puppies and an adult female boxer, who appeared to be the mother, that "all looked very underweight." Harrison testified that upon the door being opened, she observed "a very, very strong odor coming from the garage of feces and just a strong, nasty odor." The dogs all appeared to be "very, very emaciated, ribs showing, hip bones showing," and there was bloody stool and feces in the crates and kennels where the dogs were being kept. Further, Harrison testified that there were no food or water bowls inside the crate that held six puppies, nor was there food or water found in the vicinity of the garage. The only water bowl in the garage was found in a wire crate that held the mother and the "water" inside that bowl was yellow.

On top of the crate was a green storage container that contained a deceased puppy named Hannibal. The storage container was lined with a dirty cloth. As with the other dogs, all of this puppy's ribs and hip bones were showing.

Appellant was not at home while animal control was present and after observing the conditions of each of the animals, Harrison seized all of the dogs. Harrison took the live animals to be treated by a veterinarian. The veterinarian testified that the puppies and the mother had bloody diarrhea, hookworms, roundworms, and were emaciated and dehydrated. Further, the dogs had fleas and fecal matter on them. The veterinarian testified that most of the conditions these dogs suffered were "preventable with just good veterinary care and deworming and general medical care that most puppies get." The puppies should have already had their first veterinarian visit, based on their estimated age of eight weeks.

Hannibal also briefly was examined before being returned to the custody of animal control. Maggots were observed around his bedding and on his skin and he had black stool around him, both of which indicated severe medical problems. Hannibal was next taken to Dr. Carolynn Bissett ("Bissett") for a necropsy. After being qualified as an expert in animal cruelty, veterinary forensics, and animal abuse, Bissett testified to four contributing factors that caused the death of the puppy, the primary factor being severe starvation. Bissett determined that Hannibal was six to seven weeks old at the time of death and considering the negligible amount of feces in his colon and that his bone marrow fat, which should have been around 65–85%, was depleted to 6.88%, Bissett estimated that it took 2–3 weeks for Hannibal to starve to death. The other contributing factors were roundworms and hookworms found in Hannibal's fecal matter, either lung disease or pulmonary infection, and anemia. Bissett testified that starvation and intestinal parasites were preventable and that "[a]nyone could have seen this puppy and recognized that there was something abnormal."

On September 8, 2014, appellant signed surrender forms for all the dogs. Appellant admitted to Harrison that "he didn't bring the dogs to the vet" and that they had not had their shots. Appellant also admitted to Harrison that Hannibal had died the morning of July 31, 2014, and that he observed the puppy shaking just before he died. Appellant told Harrison that Hannibal had been sick for approximately one week but that he did not have the money to take the puppy to a veterinarian. Furthermore, appellant told Harrison that despite the evidence of Hannibal's dehydration and starvation, appellant had been giving the puppy water and food before he died.

At the close of the Commonwealth's case, appellant moved to strike the evidence on the ground that it failed to prove that appellant acted willfully. The trial court overruled this motion, finding that "if you withhold food from an animal, it could be some form of torture and certainly willful if you don't care for it and feed it." Appellant did not put on any evidence and renewed his motion. The renewed motion was also overruled, and the trial court found appellant guilty, reasoning that "providing food is a basic need for an animal to survive." This appeal followed.

II. STANDARD OF REVIEW

In passing upon the sufficiency of the evidence, we are guided by certain well-established principles. Since the fact finder had the opportunity of hearing and observing the witnesses, its findings are entitled to great weight.... In addition, the verdict of the trial court will not be disturbed unless it appears to be plainly wrong or without evidence to support it.

Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982). To the extent evidentiary issues present questions of statutory interpretation, such interpretations are questions of law that we review de novo. Woodard v. Commonwealth, 287 Va. 276, 280, 754 S.E.2d 309, 311 (2014) ; Abney v. Commonwealth, 51 Va.App. 337, 345, 657 S.E.2d 796, 800 (2008).

III. ANALYSIS

On appeal, in both assignments of error, appellant contends that the trial court erred in overruling his motions to strike because the evidence was insufficient to find that he "intended Hannibal suffer pain," which he argues is required under Code § 3.2–6570(F).

Code § 3.2–6570(F) provides, in pertinent part, that

[a]ny person who: (i) tortures, willfully inflicts inhumane injury or pain not connected with bona fide scientific or medical experimentation, ... [on] any dog or cat that is a companion animal whether belonging to him or another; and (ii) as a direct result causes the death of such dog or cat ... is guilty of a Class 6 felony.

(Emphasis added). The term "companion animal" is defined under this chapter as "any domestic or feral dog ... or any animal under the care, custody, or ownership of a person." Code § 3.2–6500.

The phrase "willfully inflict" has not been defined within the Code of Virginia nor is there any case law defining this phrase in the context of Code § 3.2–6570.¹ "Under basic rules of statutory construction, we determine the General Assembly's intent from the words contained in the statute. When the language of a statute is plain and unambiguous, courts are bound by the plain meaning of that language." Washington v. Commonwealth, 46 Va.App. 276, 296, 616 S.E.2d 774, 784 (2005) (en banc ) (quoting Volkswagen of America v. Smit, 266 Va. 444, 452, 587 S.E.2d 526, 531 (2003) ). "We must determine the General Assembly's intent from the words appearing in the statute, unless a literal construction of the statute would yield an absurd result." Schwartz v. Commonwealth, 45 Va.App. 407, 450, 611 S.E.2d 631, 653 (2005) (quoting Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494, 496 (2001) ).

"Willful" is defined as "voluntary and intentional but not necessarily malicious." Willful, Black's Law Dictionary (10th ed.2014). "A voluntary act becomes willful, in law, only when it involves conscious wrong or evil purpose on the part of the actor, or at least inexcusable carelessness, whether the act is right or wrong." Id. (emphasis added). Furthermore, "willfulness" is defined as "[t]he voluntary, intentional violation or disregard of a known legal duty." Willfulness, Black's Law Dictionary, supra (emphasis added).

In accordance with these definitions, the Supreme Court has held that "[t]he term ‘willful act’ [or omission] imports knowledge and consciousness that injury will result from the act [or omission] done. The act [or omission] done must be intended or it must involve a reckless disregard for the rights of another and will probably result in an injury."

Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 111 (2004) (emphasis added) (citing Code § 18.2–371.1(B)(1),² which proscribes the "willful act or omission" of failing to provide necessary care for a child).³ In so holding, the Court reasoned that

[t]he word [willful] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act

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