George Bertrum Buskey v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: April 15, 2003
• Docket: 0919021
• Status: Unpublished

Opinion

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,

- 2 - [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.

- 3 - 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.

- 4 - 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."

- 5 - 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).

- 6 - 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."

- 7 - 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

- 8 - 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.

- 9 -