Hillmon v. Commonwealth

STEPHANIE DENISE HILLMON v. COMMONWEALTH OF VIRGINIA

No. 1027-21-4

Court of Appeals of Virginia

April 26, 2022

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Carroll A. Weimer Jr., Judge

Christopher Leibig (Law Office of Christopher Leibig, on brief), for appellant.

Lindsay M. Brooker, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Ortiz and Causey Argued at Fa irf ax, Virginia

MEMORANDUM OPINION ^[*]

MARLA GRAFF DECKER, CHIEF JUDGE

Stephanie Denise Hillmon appeals her conviction for misdemeanor animal cruelty in violation of Code § 3 .2-6 570(A)(i). She asserts that the trial court erred first by permitting the Commonwealth to amend the indictment against her and later by concluding that the crime is a strict liability offense. We hold that the trial court did not commit reversible error. Consequently, we affirm the appellant's conviction.

I. BACKGROUND^[1]

The appellant was charged with felony animal cruelty in violation of Code § 3.2-65 70 (F) following the death of her dog from heat stroke.

The evidence at trial proved that on September 10, 2019, the appellant walked her two small dogs for about an hour in humid 92-degree weather. One of the dogs, Bones, was an older obese dog. Near the end of the walk, several witnesses watched as the appellant crossed a six-lane intersection with the dogs. Before they crossed, Bones was lying on his side at the end of his leash, panting and "visibly distressed." When the traffic signal changed, while the dog remained on his side, the appellant "dragg[ed]" the limp dog across the entire intersection, "walking full force" with her arm behind her. At least two drivers yelled to the appellant to indicate that "something [was] wrong with [her] dog." The appellant looked back at the dog, which she was still dragging, and kept walking. After crossing all six lanes of traffic, the appellant "jerked [Bones] up."

Detective Amon Weaver, of the Prince William County Police Department, was on duty and noticed the appellant and her dogs before she crossed the intersection. Due to one dog's obvious distress, Weaver turned his vehicle around and approached the appellant. By the time the detective reached her, she had crossed the street. She was holding the dog, whose stomach was bloated and exhibited abrasions. Additionally, the dog was "hyper-breathing," his tongue was protruding, his eyes were bulging, and he was hot to the touch. Although Bones had white fur, Weaver saw darker areas on the dog's side, which he believed were caused by dragging. Weaver thought that Bones was clearly "about to die" and said so. The appellant responded that "nothing [was] wrong with [her] dog."

Detective Weaver and Lieutenant Meghan Kidwell, an animal control officer who responded to a call for assistance, provided the dog with emergency treatment. Kidwell told the appellant that Bones needed additional medical attention and asked the appellant to either accompany her to a nearby veterinarian's office or call to arrange payment. The appellant replied that she could not go with Kidwell and added that her dogs did not receive treatment at that veterinarian's office.^[2] Throughout the appellant's encounter with law enforcement, she did not seem "very concerned" about her dog. After Weaver told the appellant that Bones had died, she did not react to the death and instead asserted that she was an attorney with no criminal record.

At the close of the Commonwealth's evidence, the appellant made a motion to strike either the "entire case" or "anything above" the misdemeanor in subsection (A) of Code § 3.2-6570, which she characterized as a lesser-included offense. When the judge expressed doubt that the evidence proved a direct causal link between the dragging of the dog and his death, as required to prove the felony under subsection (F), the prosecutor made a motion to amend the indictment to charge a misdemeanor under subsection (A). The court granted the motion over the appellant's objections. It rearraigned the appellant on all lesser offenses in subsection (A), and she again entered a plea of not guilty.

The appellant then presented evidence and testified in her own behalf. She admitted that Bones had sought shade twice on their long walk, including at the intersection at issue immediately before they crossed the street, and that the side of the intersection they were on did not have any shade. Nonetheless, she claimed that when the traffic light changed, the dogs were "ready to go." The appellant admitted that she heard people honking and yelling about her dog. She claimed, though, that she thought Bones was "running behind" her and she did not realize that he was lying down until she reached the fifth of the six lanes. According to th e appellant, she thought that she did not "have time to consider" other options, so she simply "pull[ed] Bones to [her]." She then picked up the dog when she reached the sixth traffic lane because people continued to honk and yell. The appellant denied Detective Weaver's assertion that Bones's eyes were bulging or that his tongue was sticking out.

On cross-examination, the prosecutor challenged the appellant's representation that she did not notice that she was pulling the twenty-three-pound dog on his side. The appellant repeated her claim that she did not know she was dragging Bones until she reached the fifth lane. She also asserted that one of her psychiatric conditions prevented her from being "aware of everything that a normal person would be aware of."

At the close of all the evidence, the appellant renewed her motion to strike. She argued in part that the evidence did not prove that she had "overdriven" or "deprived the dog [of] anything" or acted intentionally or knowingly. The trial court denied the motion.

Following closing argument, the court found the appellant guilty of the misdemeanor of "ill-treating" the dog. In argument on sentencing that immediately followed, counse l f or the appellant "respect[ful]ly disagree[d]" that she "was knowing about what happened." The judge asked whether the misdemeanor required proof that the ill-treatment was intentional. The appellant acknowledged that the statute did not contain such an element but asserted that due process "require[d] more than strict liability." In response, the judge expressly rejected the appellant's testimony that she did not know that she was "dragging the dog across all of the lanes of traffic on its side," and he held that this action "was the ill-treatment, if nothing else." The judge later clarified that he meant that "she [knew] something was going on from the very beginning." The appellant was sentenced to six months in jail with all of that time suspended.

II. ANALYSIS

The appellant contends that the trial court erred by granting the Commonwealth's motion to amend the indictment from felony animal cruelty in violation of Code § 3.2-6570(F) to misdemeanor animal cruelty in violation of subsection (A). She also asserts that the court erroneously applied a strict liability standard when it convicted her of the misdemeanor offense.

A. Amendment of the Indictment

The appellant argues that the trial court erred by granting the Commonwealth's motion to amend the indictment because the amendment impermissibly changed the nature of the offense. The Commonwealth asserts that this argument is procedurally barred under Rule 5A:18.

Rule 5A:18 provides that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice." To meet the requirements of the contemporaneous objection rule, an objection must be both timely and specific. See Bethea v. Commonwealth, 297 Va. 730, 743 (2019). The reason for the requirement is twofold. See id. First, such an objection "gives the opposing party the opportunity to meet the objection at that stage of the proceeding." Id. at 744 (quoting Scialdone v. Commonwealth, 279 Va. 422, 437 (2010) (emphasis added)). Second, a timely and specific objection "afford[s] the trial court an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals." Williams v. Commonwealth, 5 7 Va.App. 341, 347 (2010); see Bethea, 297 Va. at 743.

The appellant suggests that allowing amendment of the indictment after the close of the Commonwealth's evidence was error because the amendment "changed the nature or character of the offense" in contravention of Code § 19.2-231. That code section provides in pertinent part that in the case of "any variance between the allegations" in an indictment and "the evidence offered in proof thereof," the trial court may "permit amendment" of the indictment if certain conditions are met. Code § 19.2-23 1. First, the amendment must occur "before the jury returns a verdict or the court finds the accused guilty or not guilty." Id. Second, the amendment must not "change the nature or character of the offense charged." Id.^[3]

In the trial court, the appellant failed to specifically raise the "nature or character of the offense" argument that she now poses. Although she was not required to use these specific words, the appellant was required to state her objection with sufficient precision to permit the trial court, and the opposing party, to understand it and take any necessary action. See Jones v. Commonwealth, 71 Va Ap p. 597, 607 (2020) (citing Byrd v. Commonwealth, 5 0 Va.App. 542, 549 (2007) (citing Lash v. Cnty. of Henrico, 14 Va. Ap p. 926, 929 (1992) (en banc))). When the trial court first raised the possibility of amending the...