George Bertrum Buskey v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia
GEORGE BERTRUM BUSKEY
MEMORANDUM OPINION * BY
v. Record No. 0919-02-1 JUDGE D. ARTHUR KELSEY
APRIL 15, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel Taylor Powell, III, Judge
James R. Benkahla for appellant.
Amy Hay Schwab, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
George Bertrum Buskey challenges his conviction for cruelty
to animals in violation of Code § 3.1-796.122. Buskey claims the
Commonwealth failed to present sufficient evidence to demonstrate
his guilt beyond a reasonable doubt. Finding the evidence
sufficient to sustain the conviction, we uphold the decision of
the trial court.
I.
On appeal, we review the evidence "in the light most
favorable to the Commonwealth" and "accord the Commonwealth the
benefit of all inferences fairly deducible from the evidence."
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Morrisette v. Commonwealth, 264 Va. 386, 389, 569 S.E.2d 47, 50
(2002); see also Holsapple v. Commonwealth, 39 Va. App. 522,
528, 574 S.E.2d 756, 758-59 (2003) (en banc). That principle
requires us to "discard the evidence of the accused" which
conflicts, either directly or inferentially, with the
Commonwealth's evidence. Holsapple, 39 Va. App. at 528, 574
S.E.2d at 758-59 (citation omitted); see also Wactor v.
Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).
After returning home from school on October 24, 2001,
ten-year-old Megan Riley observed Brutus, a neighbor's dog, in
the road outside her home. Megan, who had played with Brutus in
the past, went outside to see the dog. When she approached
Brutus, Megan noticed that the dog was so skinny that its "ribs
and its spine" were visible. Alerted by Megan's calls, her
father, Officer Greg Riley, met Megan at the front door of their
home. Riley noticed that the dog was so "thin, emaciated" that
Riley "could see its ribs and its tail bones, its legs or
hindquarters through its skin." Riley brought the dog inside
his home, "gave it some food and water," then called animal
control.
Officer LaBell, an animal control officer with James City
County, arrived at the Rileys' home shortly afterward. LaBell
immediately recognized Brutus, who was "pretty much a resident
at the pound." LaBell recalled that, the last time she saw
Brutus in July 2001, Brutus "was a pretty happy-go-lucky dog,
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[if you would] go in the kennel, he would jump on you, want to
play, and he never had a problem with eating his food or he
never had a problem with anybody." Now, three months later,
Brutus was completely different. His weight had plummeted from
sixty-five pounds to under fifty-three pounds —— a loss of
nearly twenty percent of his body weight. "[H]e was lethargic,
he just laid on the floor, didn't get up." Brutus was so weak
that LaBell and another person had to lift him into the truck to
take him to the pound and the veterinarian.
Like LaBell, Dr. Welch, a veterinarian with The Animal
Clinic of Williamsburg, recalled seeing Brutus in both July and
October 2001. In July, Welch noticed Brutus was "severely
emaciated," "had very little, if any . . . skeletal or muscle
mass present." Brutus also "had some upper respiratory
infection" and "some minor skin abrasions." Fecal analysis
taken from a stool sample indicated that Brutus had "severe
intestinal parasites" in the form of hookworms and whipworms. 1
Welch "dewormed" Brutus and informed Shirley Anderson, an animal
1
Welch noted "the worms have a life cycle where . . . you
have to repeat treatments at specific intervals depending on
[the] kind of worm with specific medication in order to
eventually eradicate [the worm]." Welch mentioned, in addition,
"it's also important to decontaminate the environment" by
removing the dog's stool from his living area.
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control officer, that Brutus would need follow-up care. 2 Despite
the dog's physical problems, Welch noted that Brutus's "attitude
was pretty bright."
Welch observed a severe deterioration in Brutus's physical
condition and countenance between July and October. Though
Brutus still appeared "emaciated" and was anemic, he now acted
"rather depressed." He was not interested in food and was
dehydrated. Blood tests revealed that Brutus continued to have
hookworms and whipworms and that he had acquired giardi, an
additional parasite. Brutus was "in a metabolic state where he
was existing on digesting his own proteins, his own muscle
mass." Welch, in short, testified that when he saw Brutus in
late October, Brutus was "at the end stage of starvation." To
reach this point of starvation would take, in Welch's opinion,
"certainly an extended period of time, weeks, months."
It was possible, Dr. Welch noted, to attribute the dog's
anemia and other physical problems to the parasites, which, in
her opinion, had been in the dog's body for at least three
2
Anderson visited Buskey's home to relay the content of her
conversation with Dr. Welch. At trial, Anderson recalled the
conversation with Buskey, where she informed Buskey of Welch's
observation that Brutus had "intestinal parasites" that
necessitated follow-up treatments to the deworming. On several
occasions following this conversation, Anderson "went by
[Buskey's] residence" and "left notes" to ascertain how the dog
was doing. Anderson even "spoke to an elderly gentleman there
and inquired how the dog was doing." Despite Anderson's
efforts, Buskey never responded.
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weeks. 3 Even with the dog's "parasite burden," Welch did not
believe it was possible for the dog to lose the weight it did in
just a few weeks even if "he was gone for ten days and had
nothing to eat."
Kenneth Jones, a "competitive business associate" of
Buskey's, claimed that, beginning October 5, 2001, he had been
watching Brutus while Buskey was out of town. Approximately
eight days before Buskey returned, Jones testified, "the dog ran
away." The dog then reappeared in an emaciated state one week
later. Jones did not report the dog's disappearance to animal
control, nor, upon learning that Buskey was charged with animal
cruelty, did Jones inform animal control what had happened.
Following the presentation of the Commonwealth's evidence
at trial, Buskey moved to strike the evidence, claiming that the
Commonwealth failed to prove that Buskey violated the animal
cruelty statute. The trial court overruled the motion and found
Buskey guilty of animal cruelty for failing "to provide the
emergency veterinary treatment necessary for this particular
case." The court sentenced Buskey to ninety days in jail, with
thirty days suspended.
3
This opinion was based on the fact that Brutus was
excreting worm eggs. As Welch noted, "if they are excreting
eggs, then you have mature worms . . . and that usually takes
three weeks."
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I.
When faced with a challenge to the sufficiency of the
evidence, we "presume the judgment of the trial court to be
correct" and reverse only if the trial court's decision is
"plainly wrong or without evidence to support it." Davis v.
Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)
(citations omitted); see also McGee v. Commonwealth, 25 Va. App.
193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc). When a jury
decides the case, Code § 8.01-680 requires that "we review the
jury's decision to see if reasonable jurors could have made the
choices that the jury did make." Pease v. Commonwealth, 39
Va. App. 342, 355, 573 S.E.2d 272, 278 (2002) (en banc). "We let
the decision stand unless we conclude no rational juror could have
reached that decision." Id. The same standard applies when a
trial judge sits as the fact finder because "the court's judgment
is accorded the same weight as a jury verdict." Shackleford v.
Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 907 (2001). 4
In other words, when faced with a challenge to the
sufficiency of the evidence, a reviewing court does not "ask
itself whether it believes that the evidence at the trial
4
Unless the fact finder acted unreasonably, we consider it
our duty not to "substitute our judgment for that of the trier
of fact, even were our opinion to differ." Wactor, 38 Va. App.
at 380, 564 S.E.2d at 162 (quoting Commonwealth v. Presley, 256
Va. 465, 466, 507 S.E.2d 72, 72 (1998)); see also Pease, 39
Va. App. at 355, 573 S.E.2d at 278; Harris v. Commonwealth, 38
Va. App. 680, 691, 568 S.E.2d 385, 390 (2002).
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established guilt beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original and
citation omitted). Instead, the relevant question is whether
"any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Id. at 319(emphasis in original). This deference applies not only to the
historical facts themselves, but the inferences from those facts
as well. "The inferences to be drawn from proven facts, so long
as they are reasonable, are within the province of the trier of
fact." Hancock v. Commonwealth, 12 Va. App. 774, 783, 407
S.E.2d 301, 306 (1991).
Governed by this standard of review, the evidence satisfies
the sufficiency test. A rational fact finder could have found
that Buskey violated Code § 3.1-796.122(A)(ii), which prohibits
a person from depriving "any animal of necessary food, drink,
shelter, or emergency medical treatment." At trial, Dr. Welch
testified that, once the eggs of parasitic worms were introduced
into an animal's body, the "eggs mature into worms that habitate
the intestines, produce more eggs, continue the cycle." Once
the dog has excreted worm eggs through its stool, Welch
testified, adult worms are, at that time, present in the dog's
intestines and producing offspring. It would usually take
"three weeks" for this to occur, but the time period for one of
the worm types found in the dog "would be three months."
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Based on Dr. Welch's testimony, the trial judge noted that
the presence of worm eggs in Brutus's stool in late October
indicated that Brutus had adult worms in his system for "three
months to three weeks." Due to the prolonged period in which the
worms infested the dog's body, the trial judge concluded: "I
can't say that Mr. Buskey failed to provide food and drink or
shelter during this time period, but what I can say is that he
failed to provide the emergency veterinary treatment necessary for
this particular case."
So serious was the dog's parasite problem that the trial
judge rejected Buskey's claim that Brutus's condition had
deteriorated merely in the time the dog had been missing. Welch
opined that Brutus's precipitous weight drop would be very
unlikely in the short time the dog had allegedly run away, even if
the dog ate nothing during that time. Accepting this opinion, the
trial court reasoned that, even assuming the dog indeed ran away,
[t]he time period that the dog was gone was
insufficient for the new worms to grow.
They might be eggs. He might have picked up
the eggs by drinking the water or whatever,
but they wouldn't have grown into the size
and shape that they had according to the
testimony of Dr. Welch by the time the dog
was found October 24.
Based on medical evidence, the trial court reasonably
inferred that Brutus's condition was so advanced that, in the
three week period during which he was missing, the worm eggs could
not have entered his system, matured into adult worms, and caused
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a near twenty-percent weight loss. The dog's condition, instead,
stemmed from Buskey's failure to provide emergency care following
Brutus's July 2001 visit with Dr. Welch.
III.
The evidence supports the trial court's conclusion that
Buskey committed cruelty to animals by failing to provide
emergency veterinary treatment necessary for his dog. As a
result, we affirm Buskey's conviction for violating Code
§ 3.1-796.122(A)(ii).
Affirmed.
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