Settle v. Com.

• Decision Date: 24 November 2009
• Docket Number: Record No. 1173-08-4.
• Citation: 685 S.E.2d 182,55 Va. App. 212
• Court: Virginia Court of Appeals
• Parties: Charles E. SETTLE, Jr. v. COMMONWEALTH of Virginia.

685 S.E.2d 182

55 Va. App. 212

Charles E. SETTLE, Jr. v. COMMONWEALTH of Virginia.

Record No. 1173-08-4.

Court of Appeals of Virginia.

November 24, 2009.

Gilbert K. Davis (Davis & Associates, LLC, on briefs), for appellant.

Alice T. Armstrong, Assistant Attorney General II (William C. Mims, Attorney General, on briefs), for appellee.

Present: KELSEY, PETTY, JJ., and CLEMENTS, Senior Judge.

CLEMENTS, Judge.

Charles E. Settle, Jr., (appellant) was convicted in a bench trial of two counts of inadequate care by owner of companion animals, pursuant to Code § 3.1-796.68, and one count of dog at large, pursuant to Fauquier County Code §§ 4-22 and 13-1. Pursuant to Code § 3.1-796.115,¹ all of the dogs at issue were seized from appellant's control and placed in the care of local animal shelters. Additionally, the trial court declared three of the dogs dangerous pursuant to Code § 3.1-796.93:1.² On appeal, appellant contends the trial court erred in finding the evidence sufficient to prove he was the person who neglected the dogs.

The Commonwealth filed a motion to dismiss the dog at large charge arguing that we do not have jurisdiction to hear the matter because appellant failed to join the County as an indispensable party. Following oral argument, we entered an order directing the parties to file supplemental briefs on the following question: Does this Court have jurisdiction over a civil forfeiture brought pursuant to Code § 3.1-796.115? For the following reasons, we (1) find we have no jurisdiction over appellant's appeal of the forfeiture of his dogs pursuant to Code § 3.1-796.115 and transfer it to the Supreme Court of Virginia; (2) dismiss appellant's appeal challenging his conviction for dog at large; and (3) affirm his convictions of inadequate care by owner of companion animals.

BACKGROUND

"When the sufficiency of the evidence is challenged on appeal, we review the evidence `in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Emerson v. Commonwealth, 43 Va.App. 263, 276, 597 S.E.2d 242, 249 (2004) (quoting Bright v. Commonwealth, 4 Va.App. 248, 250, 356 S.E.2d 443, 444 (1987)). "We will affirm the conviction `unless it is plainly wrong or without evidence to support it.'" Dunaway v. Commonwealth, 52 Va.App. 281, 299, 663 S.E.2d 117, 126 (2008) (quoting Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 906 (2001)).

So viewed, the evidence established that over the course of approximately one year, Fauquier County sheriff's officers were dispatched to appellant's home on numerous occasions in response to animal noise, and safety and health complaints from appellant's neighbors. On December 31, 2007, after examining the living quarters and health of appellant's dogs, Hillary Bogley, the Fauquier County humane investigator, and Deputy C.L. Phillipe,³ an animal control officer, seized all of appellant's dogs and placed them in the care of local animal shelters.

All criminal summons and the civil petition for forfeiture were consolidated in the general district court. Following adverse rulings there, appellant appealed to the circuit court and a trial de novo was held on April 4, 2008. At trial, four Fauquier County sheriff's officers and the county humane officer testified about their interactions with appellant and his dogs.

Deputy Chad Brubaker confirmed in his testimony that on November 30, 2007, he was "dispatched to Mr. Settle's house." Brubaker explained where Settle's residence is located. Throughout his testimony he referred to acts and statements made by "Mr. Settle." Brubaker indicated he had been to the residence on several previous occasions and was familiar with the property. Deputy John Arseno testified he was "familiar with Mr. Settle," and had been to Settle's residence "numerous times." Arseno described being present at the residence on an occasion when "Mr. Settle and his mother were in an argument[.]" Arseno explained he talked to "Mr. Settle" each time he was at the house and talked to Settle about the reasons he had been called to the property. Deputy Rebecca Cooper testified she knew "Mr. Settle" and was familiar with where he lives. Cooper had also been to the property to investigate neighbor complaints concerning Settle's dogs on previous occasions. Deputy Phillipe also indicated he was "familiar with Mr. Settle," had been to Settle's residence numerous times, and spoke to Settle about the various complaints of neighbors concerning the dogs. Humane investigator Bogley confirmed she "came into contact with Mr. Settle" on December 31, 2007 at his residence when she seized his animals and removed them from his care.

The various witnesses gave descriptions of appellant's behavior as well as the living conditions of the animals.

Appellant moved to strike at the close of the Commonwealth's evidence, and again at the close of all evidence. The court denied both motions and convicted appellant of one count of dog at large and two counts of inadequate care of companion animals. Three of the dogs were deemed dangerous pursuant to Code § 3.1-796.93:1, and all of the dogs were placed in an animal shelter. This appeal followed.

ANALYSIS

I.

We first address the issue of the forfeiture of the dogs.

It is well established that the "Court of Appeals of Virginia is a court of limited jurisdiction. Unless a statute confers jurisdiction in this Court, we are without power to review an appeal." Canova Elec. Contracting, Inc. v. LMI Ins. Co., 22 Va.App. 595, 599, 471 S.E.2d 827, 829 (1996) (citation omitted).

Code § 17.1-406(A) provides that "[a]ny aggrieved party may present a petition for appeal to the Court of Appeals from ... any final conviction in a circuit court of ... a crime." The statutory language is restrictive, limiting the Court of Appeals' appellate jurisdiction to appeals from final criminal convictions and from action on motions filed and disposed of while the trial court retains jurisdiction over the case.

Commonwealth v. Southerly, 262 Va. 294, 299, 551 S.E.2d 650, 653 (2001).

In construing forfeiture proceedings under Code §§ 19.2-386.1 through 19.2-386.14, we have held:

Forfeiture is, however, not a criminal proceeding but a "civil" action against "res" unlawfully employed by its owner or other person. Although related to criminal activity, forfeiture is neither "penalty" nor "punishment" for an offense and remains entirely separate and distinct from a prosecution of its owner or other individual.

Jenkins v. Commonwealth, 13 Va.App. 420, 422, 411 S.E.2d 841, 842 (1991) (quoting Commonwealth v. Lincoln Automobile, 212 Va. 597, 599-600, 186 S.E.2d 279, 281 (1972)) (footnote omitted). Furthermore, "this Court has only limited jurisdiction in civil matters and ... statutory forfeiture procedures provide for appellate review only in the Supreme Court of Virginia." Id. at 423, 411 S.E.2d at 842.

In this case, Code § 3.1-796.115 allows humane investigators, law-enforcement officers, and animal control officers to seize or impound "any animal that has been abandoned, has been cruelly treated, or is suffering from an apparent violation of this chapter that has rendered the animal in such a condition as to constitute a direct and immediate threat to its life, safety or health." The general district court is required to hold a hearing. Additionally:

The humane investigator, law-enforcement officer, or animal control officer shall provide for such animal until the court has concluded the hearing. Any locality may, by ordinance, require the owner of any animal held pursuant to this subsection for more than thirty days to post a bond in surety with the locality for the amount of the cost of boarding the animal for a period of time set in the ordinance, not to exceed nine months.

In any locality that has not adopted such an ordinance, a court may order the owner of an animal held pursuant to this subsection for more than 30 days to post a bond in surety with the locality for the amount of the cost of boarding the animal for a period of time not to exceed nine months. The bond shall not be forfeited if the owner is found to be not guilty of the violation.

If the court determines that the animal has been neither abandoned, cruelly treated, nor deprived of adequate care, the animal shall be returned to the owner. If the court determines that the animal has been (i) abandoned or cruelly treated, (ii) deprived of adequate care, as that term is defined in § 3.1-796.66, or (iii) raised as a dog that has been, is, or is intended to be used in dogfighting in violation of § 3.1-796.124, then the court shall order that the animal be: (a) sold by a local governing body; (b) humanely destroyed, or disposed of by sale or gift to a federal agency, state-supported institution, agency of the Commonwealth, agency of another state, or a licensed federal dealer having its principal place of business located within the Commonwealth; (c) delivered to any local humane society or shelter, or to any person who is a resident of the county or city where the animal is seized or an adjacent county or city in the Commonwealth and who will pay the required license fee, if any, on such animal; or (d) delivered to the person with a right of property in the animal as provided in subsection E.

Code § 3.1-796.115(D).

Thus, while an animal can only be forfeited upon a finding by the court of criminal conduct, no criminal conviction is required.

Naturally, if the underlying charge is civil in nature, the appeal is also civil in nature. This is not to say that if the underlying charge is criminal in nature, the appeal is automatically criminal in nature. If we were to follow that rationale, we would have to ignore our previous characterization of petitions for habeas corpus and appeals from judgments on habeas petitions as civil in nature. Criminal charges underlie the great bulk of habeas cases, and we are unaware of any disagreement...