Vince v. Commonwealth, Record No. 0533-14-2

CourtCourt of Appeals of Virginia
Decision Date18 February 2015
Docket NumberRecord No. 0533-14-2


Record No. 0533-14-2


FEBRUARY 18, 2015


Present: Chief Judge Huff,* Judges Chafin and Decker Argued at Richmond, Virginia


Paul W. Cella, Judge

B. Thomas Bledsoe (Law Office of B. Thomas Bledsoe, on briefs), for appellant.

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Robin Renee Vince appeals her conviction for animal cruelty, in violation of Code § 3.2-6570(A)(ii). The appellant contends that the trial court erred by allowing an expert witness to testify to the ultimate issue of fact and by permitting that witness to remain in the courtroom during her testimony. We hold that the expert did not testify to the ultimate issue of fact. Further, we hold that although the trial court improperly allowed the expert to return to the courtroom to listen to evidence presented by the appellant before testifying during the Commonwealth's rebuttal, that error was harmless. For these reasons, we affirm.

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The appellant provided boarding for a horse named Max for two months. The owners believed that the appellant kept the horse on her farm in Charles City County and tried to visit him there after scheduling an appointment with her. At that time, the owners learned that the horse was located at the appellant's Nottoway County property. When the owners finally saw the horse, they found him in "really, really bad shape." The horse had been physically injured. He had numerous cuts on his body and a severely injured leg. The horse's pen was in poor condition and contained a barrel of stagnant water and old hay that was in mud.

The owners took the horse back to their home on the same day that they visited him. They took photographs of him, memorializing his general appearance and specific injuries. They contacted the local veterinarian, who advised them over the phone to monitor the horse and "see how he would react."

Three days later, Dr. Scott Reiners, with Mountain View Equine Hospital, examined the horse. At trial, he testified about the animal's condition and the veterinary care that he provided. Dr. Reiners estimated that the wounds were approximately two weeks old at the time he treated them. Reiners explained that the horse was lame due to the abnormality in his gait "because of the wounds involved." He diagnosed the horse as having an infected and abscessed wound in the leg. He also determined that the wound required surgery. Dr. Reiners, however, was unable to repair the lacerated tendon. He stated that the tendon would have been easier to repair immediately after the injury occurred. Over the appellant's objection, the Commonwealth's Attorney asked whether the horse's "wounds and injuries[,] when they occurred, . . . require[d] emergency veterinary care," and Dr. Reiners responded "[y]es."

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In her defense, the appellant presented evidence of her efforts to treat the horse's injuries. Her son testified that after the horse was injured, he and two other people dressed and treated the wounds. When the appellant returned home, she too treated the horse. She unwrapped, cleaned, and bandaged the wounds. The appellant further explained that she gave the horse injections, including Banamine (an anti-inflammatory), Bute (a pain medication), and penicillin (an antibiotic). She specified that she gave the horse "40 ccs" (cubic centimeters) of the antibiotic, administered through "10 per site," on "four different areas on the body." The appellant further stated that she gave the horse this antibiotic for four days. Although Banamine is a prescription medication, the appellant did not have a prescription written for this horse, nor did she call a veterinarian to examine the horse at any time while he was in her care. The appellant claimed that the horse was not lame when he was with her. During cross-examination, the Commonwealth introduced into evidence her written statement to the police about her care and treatment of the animal.

During the Commonwealth's case in rebuttal, Dr. Reiners testified again, after having remained in the courtroom during the appellant's testimony over her objections. The veterinarian reviewed the appellant's written notes about the treatment she administered. He testified that what the appellant had written was not "an appropriate dose" of the antibiotic. Reiners explained that the horse should have received "8.5 million international units of penicillin twice a day." When asked if the appellant gave the correct dosage of penicillin, Reiners testified that a single dose of "40 ccs" would be an overdose because it "should be given twice a day." He explained that he did not know what strength of medication the appellant used because it was available in varying "international units."

Dr. Reiners also testified that he believed that the horse was in pain due to the severity of his injuries. Further, Reiners explained that without surgery, the infection "would have

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progressed[,] . . . basically the infection would have [eaten] another hole in the skin," drained, and eventually closed, but the tendon would never have healed without surgical intervention.

The trial court found that the Commonwealth proved deprivation of necessary emergency veterinary treatment and convicted the appellant of the misdemeanor offense of animal cruelty.2 She was sentenced to twelve months in jail, with all time suspended.


The appellant argues that the trial court improperly allowed Dr. Reiners, an expert witness, to testify to the ultimate issue of fact in the case. She also contends that the trial court erred by failing to exclude Dr. Reiners from the courtroom during her case and before he testified as a rebuttal witness for the Commonwealth.

A. Ultimate Issue of Fact

The appellant contends that the trial court erroneously allowed Dr. Reiners to testify to the ultimate issue of fact when he opined that the horse's wounds required immediate veterinary care. The Commonwealth responds that the challenged testimony was not on the ultimate issue of fact because it did not attach culpability to the appellant's actions.3

Admission of opinion testimony is limited. Ramsey v. Commonwealth, 200 Va. 245, 249, 105 S.E.2d 155, 158 (1958). In the context of expert witness testimony, an opinion offered is inadmissible "when the evidence, exclusive of expert testimony, is sufficient to enable a jury of laymen to reach an intelligent conclusion." Bond v. Commonwealth, 226 Va. 534, 537-38,

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311 S.E.2d 769, 771 (1984); see also Rule 2:704(b) (prohibiting expert opinion testimony "on the ultimate issues of fact" in criminal cases).

The basic concept is logical and clear. "'[E]xpert evidence concerning matters of common knowledge or those as to which the jury [is] as competent to form an accurate opinion . . . is inadmissible.'" Compton v. Commonwealth, 219 Va. 716, 726, 250 S.E.2d 749, 755 (1979) (quoting Venable v. Stockner, 200 Va. 900, 904, 108 S.E.2d 380, 383 (1959)); see Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d 597, 598 (1992). In contrast, it is equally logical and clear that expert testimony is proper when expertise is necessary in order for the layman to understand facts in context and make the ultimate decision regarding innocence or guilt of a criminal defendant. An expert witness may provide testimony, including opinions, if the fact finder "'is confronted with issues' that 'cannot be determined intelligently merely from the deductions made and inferences drawn on the basis of ordinary knowledge, common sense, and practical experience gained in the ordinary affairs of life' and thus require 'scientific or specialized knowledge.'" Schooler v. Commonwealth, 14 Va. App. 418, 420, 417 S.E.2d 110, 111 (1992) (quoting Compton, 219 Va. at 726, 250 S.E.2d at 755-56) (internal quotation marks omitted). Generally, an expert opinion is admissible as long as the finder of fact is not equally competent to evaluate that evidence. Cf. Compton, 219 Va. at 723, 726-27, 250 S.E.2d at 754-56 (affirming admission of expert testimony that the blood spatter evidence indicated that the victim could not have been standing at the time of the shooting); Davis v. Commonwealth, 12 Va. App. 728, 730-32, 406 S.E.2d 922, 923-24 (1991) (holding that it was not an opinion on the ultimate issue of fact when the expert testified that typically the amount of drugs held by the defendant was "not consistent with personal use").

"'The admission of expert testimony is committed to the sound discretion of the trial judge . . . .'" Commonwealth v. Allen, 269 Va. 262, 274, 609 S.E.2d 4, 12 (2005) (quoting

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Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 178 (1992)); see also Gregory v. Commonwealth, 64 Va. App. 87, 95, 764 S.E.2d 732, 736 (2014). This decision will be reversed on appeal only if the trial court abused its discretion under the particular circumstances of the case. E.g., Atkins v. Commonwealth, 272 Va. 144, 153, 631 S.E.2d 93, 97 (2006); Compton, 219 Va. at 727, 250 S.E.2d at 756; Kilby v. Commonwealth, 52 Va. App. 397, 410, 663 S.E.2d 540, 547 (2008).

Code § 3.2-6570(A)(ii), in pertinent part, provides that a person...

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