Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn and
Millette, JJ., and Russell, S.J.
TERRY LYNN SULLIVAN OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 100431 November 4, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal from a conviction of misdemeanor animal
cruelty under former Code § 3.1-796.122, 1 the sole question is
whether the evidence was sufficient to support the conviction.
Facts and Proceedings
In accordance with familiar principles of appellate
review, the evidence will be stated in the light most
favorable to the Commonwealth, the prevailing party at trial.
While Brigette Berbes was driving on Interstate 81 in
Augusta County about noon on April 10, 2008, she observed a
horse lying in a pasture near the highway. The horse was
covered with a purple blanket. Ms. Berbes, who was
experienced in the care of horses, thought the blanket unusual
because the temperature was in the upper 70’s at the time.
She ran some errands and then drove back by the same route.
The horse was still lying in the same place.
1
Former Code § 3.1-796.122 was repealed and replaced by
Code § 3.2-6570, effective October 1, 2008, subsequent to
final judgment in this case.
Terry Sullivan was the president and executive director
of the Fern Leigh Equine Foundation, Inc., a not-for-profit
organization that cared for homeless horses on a farm owned by
Ms. Sullivan. The foundation’s purpose was to care for the
horses until homes could be found for them. It was supported
by donations and occasional proceeds from the sale of horses.
At the time of trial approximately 35 horses were being cared
for on the Sullivan property. The subject of this appeal, the
horse seen by Ms. Berbes, was a mare approximately 20 years of
age named “Dip.”
About 7:00 that evening, Ms. Berbes returned to the scene
and found that the horse had not moved. She called her
mother, asking her to call Ms. Sullivan to tell her that Ms.
Berbes intended to enter the Sullivan property to look at the
horse. Ms. Berbes testified that she found the horse to be
extremely thin and so weak that it could not lift its head off
the ground. It was unable to reach a supply of hay, grain and
a small pan of water that had been placed on the ground behind
it.
Augusta County Animal Control Officer Gary Webb responded
to a telephone report of the downed horse and met with Ms.
Sullivan and Ms. Berbes in the field beside Dip. Webb
testified that the horse had been “down for about 30 hours.”
Ms. Berbes asked Ms. Sullivan to give the horse to her so that
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she could care for it. Ms. Sullivan said that she would do so
if Ms. Berbes would assume responsibility for any veterinary
bills. Officer Webb then prepared a document entitled
“Surrender Statement by Owner” that Ms. Sullivan signed. It
provided that Ms. Sullivan did “[r]elinquish property rights
to Brigette Berbes who will be responsible for vet bills and
will vacate property when the vet leaves.”
Ms. Berbes then called Dr. Scott R. Reiners, a
veterinarian at the Mountain View Equine Hospital. He arrived
at the scene and examined the horse. He testified that the
horse was “nonresponsive to any stimuli, very dehydrated and
emaciated.” Because Dip was unable to raise her head to drink
from a bucket, Dr. Reiners administered 22 liters of
intravenous fluids in the field, placed her on a continuous
intravenous drip, transported her to his hospital and gave her
drugs and six more liters of fluids. Despite his efforts, Dip
died later that night. Dr. Reiners expressed the opinion that
the horse was in need of emergency care long before his
arrival and that the condition in which he found her was not
of sudden onset.
Two other veterinarians testified. Dr. David W. Brown,
Laboratory Director and Veterinary Diagnostician at the
Harrisonburg Regional Animal Health Laboratory, performed a
postmortem examination of Dip. He found her to be emaciated
3
and her ribs prominent. He opined that this condition had
developed over a considerable period of time, “probably
weeks.” He found several disease processes affecting the
intestines, liver, kidneys, lungs and heart, as well as
infestation by intestinal parasites. These had caused the
horse to become unable to absorb sufficient nutrition from the
food it consumed, leading to its progressive emaciation and
weakness. Dr. Brown opined that the immediate cause of death
was cardiac fibrosis and colitis.
Dr. William S. Hunter, a practicing veterinarian, had
done professional work for Ms. Sullivan for several years. He
testified that she called him on April 10, 2008 and told him
that she had a horse down; he thought she said it had been
down for two days. That surprised him because most horse
owners, he said, call a veterinarian immediately when a horse
is found down. He testified that he had never known a horse
to be “down a day or two and get up and live, [not e]ven with
medical treatment.”
Dr. Hunter testified that when Ms. Sullivan called him,
she told him that she didn’t know anything was wrong with Dip
but when she removed her blanket she had “just wasted away.”
She asked him whether the horse should be euthanized and he
told her that its prognosis was poor but he could not
recommend euthanasia unless he had first examined the horse.
4
Although he was willing to come to the farm to see the horse,
she did not ask him to do so, but instead said, “Okay, we can
handle this.” 2
Ms. Sullivan testified that after her conversation with
Dr. Hunter, she called a friend, Gary Meeks, to euthanize Dip.
Meeks was unable to come to the farm that evening, but
promised to come the following morning. Dip was removed to
the hospital before he could arrive.
Ms. Sullivan was charged by warrant with a violation of
former Code § 3.1-796.122. She was tried and convicted in the
general district court and appealed her conviction to the
Circuit Court of Augusta County. At a bench trial, she was
found guilty and sentenced to twelve months in jail, with six
months suspended on conditions of good behavior and “no
possession of horses” for 24 months. She appealed to the
Court of Appeals, which affirmed the conviction in a
memorandum opinion with one judge dissenting. Sullivan v.
Commonwealth, Record No. 1886-08-3 (Jan. 19, 2010). We
awarded her an appeal.
2
The only significant conflict in the evidence was Ms.
Sullivan’s account of this conversation. She testified that
she remembered that Dr. Hunter had advised her “to put [the
horse] down,” that she had said, “[I]f you think you should
come out . . . I want to give her every chance” and that Dr.
Hunter replied, “No, no. It’s pretty cut and dried.”
5
Analysis
On appellate review of a criminal conviction for
sufficiency of the evidence to support the conviction, the
relevant question is, after reviewing the evidence in the
light most favorable to the prosecution, whether any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319 (1979). Appellate courts defer to the findings
of fact made by a jury or a trial judge 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. Code § 8.01-680. That deference applies not
only to findings of fact, but also to any reasonable and
justified inferences the fact-finder may have drawn from the
facts proved. Johnson v. Commonwealth, 209 Va. 291, 295, 163
S.E.2d 570, 574 (1968).
Former Code § 3.1-796.122 provided, in pertinent part,
that “[a]ny person who . . . (ii) deprives any animal of
necessary food, drink, shelter or emergency veterinary
treatment . . . shall be guilty of a Class I misdemeanor.”
Former Code § 3.1-796.66 provided: “ 'Emergency veterinary
treatment’ means veterinary treatment to stabilize a life-
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threatening condition, alleviate suffering, prevent further
disease transmission, or prevent further disease progression.” 3
Applying that definition, we agree with the Court of
Appeals’ conclusion that there was ample evidence to support a
finding that Ms. Sullivan deprived Dip of necessary emergency
veterinary treatment. The circuit court could readily have
inferred from the expert testimony that the horse was
becoming progressively weaker and emaciated over a period of
weeks before she went down. The court could properly discard
as incredible Ms. Sullivan’s account that she was unaware that
there was anything wrong with the horse until she found it
down, removed the blanket and discovered that it had “just
wasted away.” The court could properly conclude from the
evidence that it would have been apparent, over a considerable
period of time, that the horse was in need of veterinary
treatment to alleviate suffering and to prevent the
progression of disease. At the very least, the court could
properly conclude that the horse was in such a condition
during a period of 30 to 48 hours before its death that
emergency veterinary care was immediately necessary to
alleviate suffering, during which time no such treatment was
provided.
3
The same definition appears in the replacement statute,
Code § 3.2-6500.
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Conclusion
For the reasons stated, we will affirm the judgment of
the Court of Appeals.
Affirmed.
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