Blankenship v. Commonwealth

71 Va.App. 608

838 S.E.2d 568

Brandon Scott BLANKENSHIP

v.COMMONWEALTH of Virginia

Record No. 1455-18-3

Court of Appeals of Virginia, Lexington.

MARCH 10, 2020

Wilson C. Pasley (Wilson C. Pasley, PLC, on brief), Roanoke, for appellant.

A. Anne Lloyd, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, O’Brien and AtLee

OPINION BY JUDGE ROBERT J. HUMPHREYS

On February 2, 2018, a grand jury for the Circuit Court for the County of Roanoke ("circuit court") indicted appellant Brandon Scott Blankenship ("Blankenship") for: three counts of assault and battery on a law enforcement officer, in violation of Code § 18.2-57 ; one count of assault on a law enforcement animal, in violation of Code § 18.2-144.1 ; one count of assault and battery, in violation of Code § 18.2-57 ; one count of obstruction of justice, in violation of Code § 18.2-460 ; and one count of animal cruelty, in violation of Code § 3.2-6570. The indictments alleged that the offenses occurred on or about May 26, 2017.

Blankenship pled not guilty to all charges and waived his right to a jury trial. At the conclusion of the Commonwealth’s evidence, Blankenship moved to strike the Commonwealth’s evidence. The circuit court granted that motion with respect to one count of assault and battery on a law enforcement officer, the count of assault on a law enforcement animal, and the count of obstruction of justice. Following a bench trial, the circuit court convicted Blankenship of the remaining two counts of assault and battery on a law enforcement officer, assault and battery, and animal cruelty. The circuit court sentenced Blankenship to a total of eleven years and twenty-four months’ incarceration, with all but two years and eight months suspended.¹ On appeal, Blankenship assigns error to the sufficiency of the evidence to convict him of each of the four offenses.

I. BACKGROUND

"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial."

Scott v. Commonwealth, 292 Va. 380, 381, 789 S.E.2d 608 (2016) (citing Baldwin v. Commonwealth, 274 Va. 276, 278, 645 S.E.2d 433 (2007) ). Accordingly, we will "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Kelley v. Commonwealth, 289 Va. 463, 467-68, 771 S.E.2d 672 (2015) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755 (1980) ).

On May 26, 2017, Blankenship showed up at Wally Andrews’s ("Andrews") home, though Andrews previously "ordered" Blankenship to not come onto his property. Andrews and several others were standing outside on the porch and carport attached to Andrews’s home. Blankenship stood on a hill outside the home, and when Andrews told him, "It’s best to move off the hill," Blankenship replied, "The best thing you could do is you better call 911." Andrews asked Blankenship to leave his property. Rather than leave, Blankenship continued cursing at Andrews, told Andrews to call the police, and told Andrews "I’m going to kill you." When Blankenship threatened to kill Andrews, he came within approximately twenty feet of Andrews. Blankenship kept moving "[b]ack and forth" toward Andrews. "[Blankenship] would walk up to [a rock wall outside Andrews’s home], started [sic] up the steps, and then he’d back off down that several times."

Essentially, Blankenship was acting "crazy," and Andrews was concerned "what he might try to do" to the other people standing outside Andrews’s home. Andrews called the police.

Officers Engle, Cundiff, and O’Brien, along with police K-9 Titan, responded to Andrews’s home. Titan was trained to bite and hold a suspect as part of his suspect apprehension certification. Even if a suspect resisted, Titan was trained to "hold and not let go, [to] still engage." When Officer Engle arrived, he saw Blankenship standing in the middle of the road, seeming "visibly upset that we were there." After seeing the police arrive, Blankenship shook his fist at the officers while standing a few feet away from them. All of the officers wore their police uniforms and displayed their badges. Officers Engle and Cundiff attempted to talk to Blankenship, but "[h]e started just cursing [at them] and telling [them] something about bodies being buried underneath a doghouse." Based on this behavior, Officer Engle suspected that Blankenship "was under the influence of some sort of narcotics or alcohol." The officers tried to calm Blankenship down, but "he would get more amped up." Blankenship continued "screaming" and "yelling" at the officers, telling them that they "were not the real police," to "F off," and "that there were dead bodies in the house." At one point, Blankenship told the officers "I have weed in my pocket. Arrest me, motherfuckers."

The officers "felt ... a little nervous ... that he was going to be aggressive with [them] once [they] walked up to arrest him," so they kept their distance. Eventually, the officers told Blankenship that he was going to be arrested for public intoxication, to which he responded, "You’re not going to fucking touch me." When the officers attempted to move in closer to effectuate the arrest, Blankenship balled up his fists and took a fighting stance toward the officers. "[F]earing that he was going to try to lunge [or] punch one of" the officers, the officers backed up. The officers tried one more time to effectuate the arrest but Blankenship again balled up his fists, took a step forward, and took a fighting stance toward the officers. Officer Engle "felt threatened" and gave Blankenship commands to get on the ground, warning that he would release Titan if Blankenship did not comply. Blankenship did not get on the ground. Officer O’Brien then pepper sprayed Blankenship. Blankenship immediately took off running, so Officer Engle released Titan and gave the command to apprehend.

Once Titan was close enough to apprehend Blankenship, Blankenship turned around and punched Titan in the side of the head. Titan "went off to the side," but then "came back on as they continued to run." "Blankenship again continued to swing, and actually kicked [Titan] in the front chest area." Titan continued chasing Blankenship, and at some point Blankenship tripped and fell. Blankenship then "repeatedly [took] a very strong balled fist and repeatedly punched [Titan] in the ribs." At some point, Officer Engle saw Blankenship kick Titan "somewhere in his stomach/ab area." The kick caused Titan to "bounce[ ] back as [if] he didn’t want to engage him more." Titan then backed off, which was "not typical for him to do" and was not what Titan was trained to do.

About a week or two later, Titan stopped eating and seemed lethargic. Officer Engle took him to see Dr. Czarnecki, Titan’s veterinarian. Dr. Czarnecki noticed that Titan "was having some issues related to his digestion, and ... wasn’t healing at a level that [the veterinarian] was comfortable with." Although Dr. Czarnecki was able to rule out more serious internal injuries, he did still find that Titan had a "digestive injury." Additionally, Dr. Czarnecki testified at trial, as an expert witness, that "dogs have the same anatomy as people with respect to sensing pain," and dogs generally do feel pain even if "you wouldn’t know it by their external behaviors." While Dr. Czarnecki would expect Titan to not exhibit any outward expression of an injury, he opined that Titan would have felt pain when kicked with enough force to be physically moved.

On February 22, 2018, the circuit court held a bench trial. The Commonwealth presented the testimony of Andrews, Officer Engle, Officer O’Brien, and Dr. Czarnecki. After the Commonwealth rested, Blankenship made several motions to strike. The circuit court sustained the motions to strike with respect to the charge for assault and battery on a law enforcement animal, the charge for obstruction of justice, and one count of assault and battery on a law enforcement officer with respect to Officer Cundiff. The circuit court overruled the motions to strike on the remaining two counts of assault and battery on a law enforcement officer, one count of assault and battery, and one count of animal cruelty. Blankenship then testified. After the defense rested, Blankenship moved to strike the remaining charges. In response to Blankenship’s argument that the assault and battery should be struck because the evidence was insufficient to establish a battery on Andrews, the circuit court stated, "that on the assault and battery on Mr. Andrews, it would be assault as a lesser included." The circuit court overruled those motions and found Blankenship guilty of the remaining four offenses. This appeal follows.

II. ANALYSIS

A. Standard of Review

When reviewing the "sufficiency of the evidence to support the conviction, the relevant question is ... whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61 (2010) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ). We will defer to the findings of fact made by the circuit court "at a bench trial if there is evidence to support them and will not set a judgment aside unless it appears from the evidence that the judgment is plainly wrong." Id. (citing Code § 8.01-680 ).

"The sole responsibility to determine the credibility of witnesses, the weight to be given to their testimony, and the inferences to be drawn from proven facts lies with the fact finder." Ragland v. Commonwealth, 67 Va. App. 519, 529-30, 797 S.E.2d 437 (2017) (citing Commonwealth v. McNeal, 282 Va. 16, 22, 710 S.E.2d 733 (2011) ). In a bench trial, the trial judge’s "major role is the determination of fact, and with experience in fulfilling...