People v. Primbas

FIRST DIVISION
September 27, 2010

No. 1-09-1099

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 08 CR 4366
)
SAMUEL PRIMBAS, ) Honorable
) Joseph M. Claps,
Defendant-Appellant. ) Judge Presiding.

JUSTICE PATTI delivered the opinion of the court:

Following a bench trial, defendant Samuel Primbas was

convicted of aggravated cruelty to a companion animal and was

sentenced to two years of felony probation. On appeal, defendant

argues that the State was required, but failed, to prove beyond a

reasonable doubt that he intended to cause the death of the

companion animal. We affirm.

Georgia Bouziotis testified that defendant and his mother,

Jeanette Primbas, are her distant relatives whom she has known

her entire life. On the morning of November 17, 2007, Georgia

took her nine-year-old pet dog, Shelby, for a walk. Shelby was a

black and tan 85-pound female Rottweiler that wore a fluorescent

orange collar. It was cloudy that morning but not raining.

Georgia and Shelby stopped at Jeanette Primbas’s house and

Georgia entered the house after tying Shelby’s leash to a deck

post. A few minutes later, Georgia heard footsteps on the deck
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and then "stomping" on the deck. She went outside and saw

defendant at the bottom of the deck steps. She turned and saw

Shelby lying on her side. Shelby was wearing her fluorescent

orange collar. Defendant asked her, "Georgia, is that your dog?"

She said that it was. Defendant told her he thought Shelby was

having a seizure and demonstrated by jumping back and forth on

each foot. Georgia examined Shelby and knew she was not having a
seizure. Then Georgia found a hole on Shelby’s left side near

her hip. Within minutes Shelby died.

Georgia told defendant she thought Shelby had been shot.

Defendant replied that "it could have been the guy across the

street." Then he told her it could have been the McGrath twins,

who carry a pellet gun. The police came and prepared a report.

Other people came and confirmed Shelby had been shot. Later that

morning, Shelby was buried in Jeanette’s yard.

That evening, defendant phoned Georgia and told her he was

sorry he had shot her dog. He said he thought Shelby was a stray

eating garbage on his mother’s porch. He said, "I didn’t mean to

kill her. I didn’t shoot her in the head." "I shot her from the

service door in the garage." He said he shot Shelby with a

pellet gun. He sounded upset and said he would get her another

dog. She told him she did not want another dog.

Defendant had seen Shelby "on several occasions" and had

been to Georgia’s home previously. One such occasion was on

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September 29, 2007, when Georgia gave a party. Shelby was in the

backyard when defendant went out to the yard before the party

began. Georgia had also seen defendant several times in previous

months when she walked with Shelby past Jeanette’s home.

Gregory Bouziotis, Georgia’s brother, testified he arrived

at Jeanette’s house shortly after Shelby died. Shelby was

wearing an orange collar and a blue and orange leash. Gregory
asked defendant what happened and defendant said he did not know.

A couple of hours later, Gregory phoned defendant and again asked

him what happened. He repeated he did not know. Gregory phoned

defendant again and defendant admitted he shot the dog, that he

did not know whose dog it was, and that it was an accident.

Previously, Gregory had seen defendant’s pellet gun on the garage

workbench. The gun was about 2½ or 3 feet long and had a scope

on it.

Shelby was later removed from the grave on Jeanette’s

property. The parties stipulated that on December 12, 2007, Dr.

Frederickson performed a necropsy on Shelby’s remains. He

observed hemorrhaging and accumulated blood in the dog’s chest

cavity and a pellet in tissue surrounding the right kidney,

confirming gunshot trauma. In his opinion, death was due to a

pellet that was shot through the thorax and may have damaged a

vessel extending off the aorta, leading to the hemorrhage.

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For the defense, Jeanette Primbas testified she lives alone

and defendant, her son, lives nearby. Defendant comes to

Jeanette’s home every day and keeps his tools in her garage,

which he uses to work on cars. He also kept a pellet gun there.

The house sits on three lots and the property is "all wetland"

and "like a farm area." Over the years she has kept horses,

goats, turkeys, and lambs on the property. She has had animals
killed by wild dogs and coyotes. There is a garbage can on the

deck, and stray animals remove the lid and dig for food.

Occasionally Jeanette would see Georgia walking her dog, but

Jeanette’s deck was 600 or 700 feet away, too far to enable her

to recognize the dog. Jeanette attended the party at Georgia’s

house on September 29, 2007, and was in the backyard with 10 or

15 other guests. Defendant came to the backyard, deposited

beverages, and left. There was no dog in the yard that day.

At about 8:30 on the morning of November 17, 2007, it was

raining heavily. Georgia rang the doorbell and came in for about

45 minutes. Before that day, Georgia had not been to the house

in a year. After the rain subsided, Jeanette walked Georgia to

the door and they found Georgia’s dog jumping around on the deck,

"like in a seizure form." Then the dog stopped jumping, lay

down, and died. Jeanette did not see a collar or leash.

Defendant was not present at that time. Georgia called her

brother, Greg, and he came over. Georgia walked to the street

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and flagged down a police officer. Then defendant came on the

scene. Later in the day, Jeanette phoned defendant to find out

what had happened to Shelby. He told her he thought the dog was

a stray and he accidentally shooed it away with a pellet.

Defendant testified that his mother’s house is in the middle

of swampland and prairie, full of wildlife. Two and a half years

earlier, a stray Rottweiler came onto his mother’s property and
killed her two goats. A coyote killed her sheep and poultry.

Early on the morning of the incident, defendant was working on a

car in his mother’s garage. The garage service door is about 15

or 20 feet from the deck of the house. Defendant heard "some

scrambling" on the porch and thought it was a coyote in the

garbage. He saw a large dark-colored animal with its head in the

garbage can. Defendant testified, "I didn’t get close enough to

find out what it was." He grabbed his kids’ pellet gun. From

the service door, he fired through the slats of the deck, aiming

at the animal’s rear end. He heard a yelp, then went back into

the garage. He thought the animal ran off. He did not know it

was someone’s pet. It was raining, and he did not see a collar

on the animal. He wanted only to shoo it away, not kill it.

Later, defendant saw his mother and Georgia on the porch.

He came over, saw the dog lying on the porch, and realized he had

made a mistake. He said nothing at that time because he was

ashamed and embarrassed. After he buried the dog, he went to a

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pet store that afternoon to buy Georgia a new dog because he felt

bad and was ashamed and had made a mistake. Before that day, the

last time he had seen Georgia’s dog it was a puppy.

At the conclusion of the trial, the court found the evidence

established that defendant intended the consequences of his act

in shooting the companion animal Shelby. In reaching its

decision, the court found that Georgia Bouziotis was a credible
witness and that the testimony of defendant and his mother was

not credible.

On appeal, defendant first contends the trial court erred in

failing to recognize that the pertinent statute, section 3.02 of

the Humane Care for Animals Act (510 ILCS 70/3.02 (West 2006)),

requires the State to prove not only that defendant intentionally

committed an act resulting in the death of a companion animal,

but that he also intended to seriously injure or kill the animal.

Defendant concedes he failed to preserve this issue for review,

but we shall address it, as the question of the State’s burden of

proof affects an accused’s substantial rights and threatens the

integrity of the judicial process. People v. Laugharn, 297 Ill.

App. 3d 807, 810-11 (1998).

Questions of statutory interpretation are questions of law

subject to de novo review. People v. Christopherson, 231 Ill. 2d

449, 454 (2008). The fundamental rule of statutory construction

is to ascertain and give effect to the intent of the legislature.

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In re Madison H., 215 Ill. 2d 364, 372 (2005). The best

indicator of the legislature’s intent is the language in the

statute, which must be accorded its plain and ordinary meaning.

Christopherson, 231 Ill. 2d at 454-55.

The relevant portion of section 3.02 states: "No person may

intentionally commit an act that causes a companion animal to

suffer serious injury or death." 510 ILCS 70/3.02 (West 2006).
After the State and defense rested, the trial court and parties

addressed the meaning of the statute. The State construed

section 3.02 to require evidence only that defendant

intentionally committed the act resulting in a companion animal’s

serious injury or death, not that defendant intended the serious

injury or death. The trial court paraphrased the State's

position and then stated, "I read that statute to mean that you

intend the act that causes the harm." Defendant asserts this

statement indicates the trial court erroneously concluded the

State was not required to prove defendant intended to kill Shelby

and, consequently, that the court's erroneous interpretation of

the statute deprived him of a fair trial.

In support of his contention that the statute requires that

the State prove he intended to kill or seriously injure a

companion animal, defendant relies on People v. Larson, 379 Ill.

App. 3d 642 (2008). In Larson, we ruled that "the scope of

punishable conduct is limited by the individual's specified

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intent to cause the companion animal to suffer serious injury or

death." Larson, 379 Ill. App. 3d at 651. The State contends

that Larson is inapposite because the issue there dealt with

forms of euthanasia under another paragraph of the statute. We

find Larson instructive, however, in interpreting the conduct

proscribed by the statute. We observed in Larson that the evil

the statute is intended to prevent is the intentional killing or
injuring of companion animals and that application of this

ordinary and popular meaning of the statutory language provides

adequate notice of the conduct the statute prohibits. Larson,

379 Ill. App. 3d at 652.

In furtherance of his argument that the State is required to

prove specific intent, defendant advances a hypothetical example

of what he suggests is an unreasonable result of interpreting the

statute as a general intent crime, namely, criminalizing the act

of one hunter who aims his gun at a quail and pulls the trigger

but shoots another hunter’s dog. We find this to be a compelling

argument and, together with our interpretation of the provision

in Larson, agree with defendant that the statute requires the

State to prove beyond a reasonable doubt not only that defendant

caused the death of Shelby but that he also did so with the

specific intent to cause Shelby to suffer serious injury or

death.

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We reject defendant's contention, however, that the trial

court misapprehended the State's burden of proof under section

3.02. It is well settled that we review the judgment of the

trial court, not its reasoning, to determine whether the court

reached the proper result. People v. Rajagopal, 381 Ill. App. 3d

326, 329 (2008). It is also axiomatic that, unless the record

demonstrates otherwise, we must presume that a trial judge knows
and follows the law . People v. Jordan, 218 Ill. 2d 255, 269

(2006). Notwithstanding the trial court's comments during

argument, the record discloses that after hearing the arguments

of both parties, the court went on to examine each element of the

statute and to find that the State had sustained its burden of

proving all elements of the offense, including a specific intent

to kill or harm a companion animal.

Consequently, we address defendant’s second contention on

appeal, that the evidence failed to prove he intentionally caused

an animal known to be a companion animal to suffer serious injury

or death.

When a court reviews a challenge to the sufficiency of the

evidence, the relevant question is whether, after viewing the

evidence in a light most favorable to the State, any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. People v. Jackson, 232 Ill. 2d

246, 280 (2009). This standard of review does not allow a

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reviewing court to substitute its judgment for that of the trier

of fact on questions involving the weight of the evidence or the

credibility of the witnesses. Jackson, 232 Ill. 2d at 280-81.

It is the trial court’s right and obligation to determine the

weight and credibility to be given the witnesses’ testimony,

resolve any inconsistencies and conflicts in the evidence, and

decide the reasonable inferences to be drawn from the testimony.
People v. Bannister, 378 Ill. App. 3d 19, 39 (2007). When a

defendant testifies, the fact finder is not required to believe

his testimony. Larson, 379 Ill. App. 3d at 655.

There can be no doubt the evidence was sufficient to support

the court's finding that defendant committed the act which

resulted in Shelby's death, as defendant admitted at trial to

shooting Shelby. Moreover, the trial court’s thorough review of

the evidence at the close of the trial indicated it believed both

that defendant knew the animal he was shooting at was Georgia's

pet Shelby and that there was a culpable mental state associated

with the cause of Shelby’s death. The court reached that factual

conclusion upon finding Georgia credible and finding defendant

and his mother not credible.

The court specifically rejected defendant’s claim that his

intent was only to drive away what he thought was a wild animal,

not to cause injury or death to the animal. Where a defendant

denies intent, as here where defendant claimed he had no intent

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to harm Shelby, intent may be demonstrated through circumstantial

evidence. People v. Phillips, 392 Ill. App. 3d 243, 259 (2009).

Defendant testified he fired the pellet gun merely to shoo away

what he believed was a feral animal and claimed he thought the

animal had run away. In finding this testimony unbelievable, the

trial court noted defendant also testified he immediately walked

back into the garage after firing the shot, without ascertaining
whether the animal had been scared off or lay wounded on the

deck, where it could have posed a danger to his mother.

The court also found the State’s evidence credible on the

issue of whether defendant knew the animal was Georgia’s pet dog

Shelby. After hearing conflicting testimony as to whether it was

raining at the time of the incident so as to obscure defendant’s

view of the animal, whether defendant was familiar with Shelby’s

appearance, and whether Shelby wore a distinctive fluorescent

collar and a leash on that day, the court found: "There is no

question in my mind about the credibility of Georgia Bouziotis.

She has absolutely no motivation to make stuff up regarding these

folks whom she is related to." On the other hand, the court

found defendant’s testimony to be "the most absurd testimony I

have heard in my life. It’s utterly unbelievable." The court

evaluated the credibility of the testimony of defendant’s mother

as "pathetic."

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We conclude the evidence established beyond a reasonable

doubt that defendant committed an act resulting in serious injury

or death to a companion animal and that defendant intended to

cause the companion animal to suffer serious injury or death.

For all of the above reasons, we affirm the judgment of the

trial court.

Affirmed.
HALL, P.J., and GARCIA, J., concur.

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