                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Elder and Beales
Argued at Chesapeake, Virginia


ERIC RYAN, S/K/A
 ERIC BERNARD RYAN
                                                            MEMORANDUM OPINION* BY
v.     Record No. 1818-05-1                             CHIEF JUDGE WALTER S. FELTON, JR.
                                                                   JULY 25, 2006
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                               A. Bonwill Shockley, Judge

                 Aleasa D. Leonard, Assistant Public Defender (Office of the Public
                 Defender, on brief), for appellant.

                 Rosemary V. Bourne, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Eric Bernard Ryan (“appellant”) was convicted of killing a companion animal in

violation of Code § 3.1-796.122. He was sentenced to five years imprisonment, with four years

and eight months suspended.1 Appellant argues the evidence was insufficient to convict him of

violating Code § 3.1-796.122. He further argues that Code § 3.1-796.122 is ambiguous and

permitted, at most, a conviction of a misdemeanor.

                                          BACKGROUND

       The evidence at trial established that in January 2004, James Rainey (“Rainey”) and

Denny Wagner (“Wagner”), neighborhood teenagers, were waiting for their school bus in front



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Appellant was also convicted of “fail to pay tax, no rabies vaccine, and deposit
maimed/disabled animal on street,” all misdemeanors. Those matters are not before the Court in
this appeal.
of Wagner’s home. Appellant, who was standing with them, was temporarily residing with

Wagner’s mother. He housed his dog “Jadis,” a fifty-pound female pit bull, in the fenced yard

behind the house.

        Appellant lured a neighborhood cat into the home’s garage by calling “[c]ome here,

kitty . . . [c]ome hear [sic] cat . . . [c]ome to the garage.” After the cat went into the garage,

appellant closed the garage door and told Rainey he was going to “teach the cat a lesson.”

Appellant then brought the pit bull into the closed garage.

        Appellant directed the pit bull to attack the cat, saying “get ‘em, Jadis, get the cat.”

When the cat tried to escape by jumping on shelves and onto a car in the garage, appellant

“knocked it off the shelf and car with a broom so his dog could get it.” Eventually, after chasing

the cat for a “few minutes,” the pit bull caught it and “locked its jaws around its neck” for

approximately thirty seconds, while the cat was “grunting and breathing heavy.” On appellant’s

command, the pit bull released the cat, which thereafter “barely limped” under a vehicle parked

in the garage. Appellant then pushed the cat out of the garage with the broom. The wounded cat

made its way under another vehicle on the road outside the garage. Appellant then pushed it

from underneath that vehicle, telling it to “get off the property.” The cat limped across the street

and took refuge under another vehicle. Appellant “left it there and said it was gone.” Rainey

observed that the cat “didn’t have much left” as it went underneath yet another car parked on the

road. Appellant did not contact authorities or seek veterinary medical attention for the cat.

        After school, Rainey and his parents searched unsuccessfully for the cat but did see blood

underneath the car where it previously took refuge. They contacted Animal Control.

        Officer D.W. Humphries (“Officer Humphries”), an Animal Control officer, eventually

found the cat four houses down from appellant’s home “on the side of the road on the curb.” It

was in “very bad condition” and “appeared to have been attacked by another animal or a dog.”

                                                 -2-
The “incapacitated” cat was examined by Dr. Mark Roberts (“Dr. Roberts”), a veterinarian, who

observed that the cat “had several wounds above the neck and was disoriented . . . was unable to

walk, unable to stand . . . [and had] difficult[y] breathing.” He determined that the injuries were

untreatable and that it would be “inhumane to keep this cat alive.” He concluded the cause of the

cat’s injuries to be blunt force trauma and “puncture wounds that entered into the skull above the

neck that would appear to be associated with a bite wound.”

       Officer J.E. Cason (“Officer Cason”), another Animal Control officer, went to appellant’s

residence to investigate the incident the day following the incident. In the garage, he observed

blood in “several spots” and a “small amount of blood . . . two to three feet up” on the wall.

Appellant told Officer Cason that he was “unaware” that the cat was in the garage when he

closed the door and brought his pit bull into the garage. Appellant was indicted for killing a

companion animal in violation of Code §§ 3.1-796.122 and 18.2-10.

                                            ANALYSIS

                                                 I.

       On appeal from a criminal conviction, we must view the evidence “in the light most

favorable to the Commonwealth, the prevailing party at trial” and “[w]e also accord the

Commonwealth the benefit of all inferences fairly deducible from the evidence.” Morrisette v.

Commonwealth, 264 Va. 386, 389, 569 S.E.2d 47, 50 (2002) (citations omitted). We must

“affirm the judgment of the circuit court unless that judgment is without evidence to support it or

is plainly wrong.” Burns v. Commonwealth, 261 Va. 307, 337, 541 S.E.2d 872, 892 (2001)

(citations omitted). See Code § 8.01-680 (“the judgment of the trial court shall not be set aside

unless it appears from the evidence that such judgment is plainly wrong or without evidence to

support it”). “The credibility of the witnesses and the weight accorded the evidence are matters

solely for the fact finder who has the opportunity to see and hear the evidence as it is presented.”

                                                -3-
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995) (citations

omitted).

        The record establishes that appellant, a convicted felon, told Rainey, a neighborhood

teenager, that he was going to “teach the cat a lesson.” He lured the cat into the garage, closed

the door, then released his fifty-pound pit bull into that confined space, directing it to “get the

cat.” When the cat tried to escape from the pit bull by jumping onto shelves and the car parked

in the garage, appellant knocked the cat down with a broom. After the dog attacked it, the cat

“barely limped” under the car in the garage, from where appellant then “pushed it out of the

garage” using a broom. Appellant made no effort to contact Animal Control officers or seek

veterinary medical attention for the badly injured cat. Animal Control officers found the badly

mutilated cat and took it to Dr. Roberts, a veterinarian, who determined that it would be

“inhumane” to keep the cat alive. After euthanizing the cat, Dr. Roberts performed a necropsy,2

concluding that the cat’s lethal injuries were caused by blunt force trauma and “puncture wounds

that entered into the skull above the neck that would appear to be associated with a bite wound.”

        Although appellant testified that he was unaware that the cat was in the garage when he

released his pit bull into that space, the trial court “was entitled to disbelieve the self-serving

testimony of the accused and to conclude that the accused [was] lying to conceal his guilt.”

Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998) (citations

omitted). The trial court noted that “[t]he Commonwealth’s evidence was blood on the wall in

the garage, blood on the floor in the garage, the pictures which are hard to look at . . . . How

anybody could think that animal in that condition wasn’t injured seriously is beyond me . . . . He

is guilty beyond a reasonable doubt.”



        2
        A necropsy is an “examination of a body after death.” Dorland’s Illustrated Medical
Dictionary 1180 (29th ed. 2000).
                                            -4-
       Appellant argues that “[t]he injury to the cat, which eventually led to its euthanization,

was the direct result of the attack by the dog,” rather than by any direct act “by his own hand.”

The evidence showed that appellant, through use of a broom to prevent the cat from escaping the

pit bull’s attack, which he commanded, engaged in conduct that directly led to the cat’s death.

Moreover, one who effects a criminal act through an instrumentality or unwitting agent is a

principal in the first degree and may not escape criminal responsibility for a crime which he

arranges to have committed through an instrumentality or by an unwitting agent. McAlevy v.

Commonwealth, 270 Va. 378, 380, 620 S.E.2d 758, 759 (2005) (citations omitted). Appellant’s

use of the broom to assure the cat would fall prey to the attacking pit bull was no different than

had he used the broom to force the cat into the street in front of an oncoming car.

       The record reflects credible evidence to prove beyond a reasonable doubt that appellant

was guilty of violating Code § 3.1-796.122.

                                                 II.

       Appellant further contends that Code § 3.1-796.122 “creates ambiguity with regard to

which subsection, and consequently, which penalty, is applicable to appellant’s conduct.” He

argues that the trial court erroneously convicted him of violating Code § 3.1-796.122(H), a

felony, rather than of violating Code § 3.1-796.122(A), a misdemeanor.

       Code § 3.1-796.122(H) provides, in relevant part, that:

               Any person who (i) tortures, willfully inflicts inhumane injury or
               pain not connected with bona fide scientific or medical
               experimentation or cruelly and unnecessarily beats, maims or
               mutilates any . . . cat that is a companion animal whether
               belonging to him or another and (ii) as a direct result causes the
               death of such . . . cat that is a companion animal, or the euthanasia
               of such animal on the recommendation of a licensed veterinarian




                                                -5-
                   upon determination that such euthanasia was necessary due to the
                   condition of the animal, shall be guilty of a Class 6 felony.

(Emphasis added).3

          Appellant was indicted for “kill[ing] a companion animal” in violation of Code

§§ 3.1-796.122 and 18.2-10.4 The indictment charged that appellant:

                   [D]id torture, willfully inflict inhumane injury or pain . . . and
                   unnecessarily beat, main [sic], or mutilate a (dog or cat) that was a
                   companion animal and as a direct result caused the death of such
                   animal on the recommendation of a licensed veterinarian who
                   determined such euthanasia was necessary due to the condition of
                   the animal, in violation of §§ 3.1-796.122; 18.2-10 of the Code of
                   Virginia.

The language of the indictment closely tracks the language of Code § 3.1-796.122(H), and

specifically refers to a felony punishment as provided by Code § 18.2-10.5

          As we have previously noted, “it is a matter of prosecutorial election whether the

Commonwealth proceeds under the misdemeanor statute or the felony statute against an

accused.” Brown v. Commonwealth, 30 Va. App. 243, 250, 516 S.E.2d 678, 682 (1999) (citing

Mason v. Commonwealth, 217 Va. 321, 323, 228 S.E.2d 683, 684 (1976)). Although the

Commonwealth could have elected to prosecute appellant for violating Code § 3.1-796.122(A), a

misdemeanor, it chose instead to pursue a conviction under the more specific provisions of Code

§ 3.1-796.122(H), and “we cannot gainsay its right to make that election.” Mason, 217 Va. at



          3
         In 2002, the General Assembly amended Code § 3.1-796.122, adding subsection H,
creating a Class 6 felony when a person “tortures” or “willfully inflicts inhumane injury or pain”
upon a companion animal to such an extent that the animal must be euthanized.
          4
              Code § 18.2-10 provides punishments for each classified felony, including a Class 6
felony.
          5
         Appellant did not allege that the indictment failed to provide him with adequate notice
of the character and nature of the offense charged, nor did he seek any clarification of the
charges by a bill of particulars. Hurd v. Commonwealth, 159 Va. 880, 885, 165 S.E. 536, 538
(1932); see also Code § 19.2-230.
                                                -6-
324, 228 S.E.2d at 684-85 (no error in prosecuting accused for felony escape under then Code

§ 53-291(2) rather than misdemeanor escape under then Code § 18.1-290).

       The trial court did not err in finding that the indictment was not ambiguous and that it

provided ample notice to the appellant that he was being charged with violating the felony

provision of Code § 3.1-796.122(H).

                                         CONCLUSION

       We conclude that the trial court did not err in finding the evidence sufficient to support

appellant’s conviction under Code § 3.1-796.122(H). Further, the trial court did not err in

convicting appellant of violating Code § 3.1-796.122(H), a felony, rather than Code

§ 3.1-796.122(A), a misdemeanor. Accordingly, we affirm.

                                                                                    Affirmed.




                                               -7-
