COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia
BARBARA PATTERSON
OPINION BY
v. Record No. 1585-01-2 JUDGE JEAN HARRISON CLEMENTS
FEBRUARY 19, 2003
CITY OF RICHMOND
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Darren Marshall Hart (A. Gray Collins, III;
Collins & Hart, on brief), for appellant.
Phillip Hairston (John A. Rupp, City
Attorney; Kelly C. Harris, Assistant City
Attorney, on brief), for appellee.
Barbara Patterson was convicted in a bench trial of failing
to exercise proper care and control of her dogs to prevent them
from becoming a public nuisance, in violation of Richmond City
Code § 4-63. On appeal, she contends the trial court erred (1)
in failing to strike the evidence presented by the City of
Richmond (City) on the grounds it was insufficient to show she
created a public, rather than private, nuisance; (2) in refusing
to quash the summons on the grounds it was based on events not
directly observed by the issuing officer; (3) in admitting into
evidence under the business records exception to the hearsay rule
a police activity log from the City's Bureau of Emergency
Communications; and (4) in amending the summons issued to her by
substituting a range of dates for the single offense date in the
original summons. For the reasons that follow, we affirm
Patterson's conviction.
I. BACKGROUND
In accordance with familiar principles of appellate review,
we view the evidence presented at trial and all reasonable
inferences fairly deducible from that evidence in the light most
favorable to the City, the party that prevailed below. See
Dowden v. Commonwealth, 260 Va. 459, 461, 536 S.E.2d 437, 438
(2000).
So viewed, the evidence established that, between February
12, 2000, and July 25, 2000, Patterson, a sixty-six-year-old
legally blind woman, had five to eight dogs at any one time at
her single-family residence. At trial, Patterson testified she
owned five dogs, two of which she used as service animals. She
further testified that, as a member of the Central Virginia
Doberman Rescue League, she occasionally provided safehousing for
other dogs.
John Russell, who lived with his wife and two children three
houses away from Patterson on the same side of the street,
testified the "continuous" barking of "any number of
[Patterson's] dogs" at "any hour of the day" bothered his family
since the "day [they] moved into the house in August of 1999."
Russell, a dog owner himself, further testified the barking of
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Patterson's dogs, often lasting for "three to four hours" at a
time, woke his family up at 6:30 a.m. during the week and on
weekends "on a frequent basis" and "disturbed" his family
throughout the day. According to Russell, the barking was "a
constant annoyance" to his family. It interfered with their
celebration of holidays, their use of the yard, and their ability
to entertain guests, and "ruined" their enjoyment of their home.
Russell testified that, had he known he and his family would be
subject to the "constant and continual" barking of Patterson's
dogs, he would not have bought a house in that neighborhood.
In October 1999, "fed up with having to call [Patterson]
constantly to tell her" her dogs were "out for three or four
hours . . . barking" and realizing "it was obvious there was no
working it out," Russell began to call Animal Control to
complain. In his testimony, Russell identified three specific
days between February 12, 2000, and July 25, 2000, that he filed
complaints regarding the barking of Patterson's dogs; namely, on
February 12, 2000, March 18, 2000, and May 6, 2000. According to
Russell, Patterson's dogs barked continuously for approximately
two and one-half hours on February 12, 2000, "in excess of
several hours" on March 18, 2000, and for the "entire"
more-than-three-hour period Patterson was not home on May 6,
2000.
Copies of the relevant pages of Animal Control's dispatch
log were admitted into evidence and confirm that Animal Control
received complaints from Russell about the barking of Patterson's
dogs on February 12, 2000, and March 18, 2000. The log also
shows that Russell's wife complained to Animal Control about the
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barking of Patterson's dogs on April 14, 2000, April 20, 2000,
May 31, 2000, June 9, 2000, and July 18, 2000, and that Russell's
next-door neighbor lodged a similar complaint about Patterson's
dogs on April 1, 2000.
Debra Rhoads, Patterson's next-door neighbor, testified the
barking of Patterson's dogs, both when they were in Patterson's
backyard or when the windows of Patterson's house were open, was
"very annoying." It went on, according to Rhoads, for "extended
periods of time" at night and in the morning, including weekends,
and was "extremely loud." Rhoads testified the barking was so
loud and incessant she could not leave her windows open when the
weather was nice. Even with her windows closed, the barking
disturbed her sleep and interfered with her ability to watch
television or have a conversation in her family room. The
barking further interfered with her use of her yard and her
ability to entertain guests. Rhoads, who herself had a dog,
testified that, had she known about the barking of Patterson's
dogs before she moved in, she would not have bought her house.
Rhoads also testified there were "numerous times" between
February 12, 2000, and July 25, 2000, that Patterson's dogs
"barked excessively." She specifically recalled calling Animal
Control to complain about the barking on the evening of April 19,
2000, when it "appeared [Patterson] was not home" and "the dogs
barked incessantly for quite an extended period of time."
On the evening of July 25, 2000, Animal Control Officer
Donna Miskovic went to Patterson's house to investigate
complaints received by Animal Control regarding the barking of
Patterson's dogs. Miskovic, who had previously responded to
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complaints about Patterson's dogs and issued notices to Patterson
regarding the "excessive and continuous" barking of her dogs,
testified that, upon her arrival at Patterson's house on July 25,
2000, she heard Patterson's dogs barking in a manner that was
"excessive, continuous," and, it being late in the evening and
nearly dark, "untimely." Consequently, Miskovic, who had
recently completed her "animal control training for the State of
Virginia," issued a summons to Patterson for violating Richmond
City Code § 4-63. Asked at trial about the basis for the summons
she issued to Patterson, Miskovic testified that, had she not
heard Patterson's dogs "barking that night," she "would not have
written [the] summons."
Sitting without a jury, the trial court heard the evidence
and the arguments of counsel, overruled Patterson's motion to
strike the City's evidence as being insufficient to prove she
violated Richmond City Code § 4-63, and found Patterson guilty as
charged. At sentencing, the trial court suspended the imposition
of sentence for two years conditioned on Patterson's compliance
with certain terms and conditions, including limiting the number
of dogs she keeps at her house to her two service dogs and
"responsibly manag[ing] her dogs' barking."
This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
On appeal, Patterson contends the evidence presented at
trial was insufficient, as a matter of law, to prove beyond a
reasonable doubt that the barking of her dogs constituted a
public, rather than private, nuisance, in violation of Richmond
City Code § 4-63, because the City presented testimony of only
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two households that were adversely affected by the alleged
nuisance. Relying on White v. Town of Culpeper, 172 Va. 630, 1
S.E.2d 269 (1939), Patterson argues that "the City must prove
that Patterson maintained a public nuisance through the testimony
of more than four persons." Thus, Patterson concludes, the trial
court erred in finding the City's evidence sufficient to sustain
her conviction. We disagree.
Where the sufficiency of the evidence is
challenged after conviction, it is our duty
to consider it in the light most favorable to
the [City] and give it all reasonable
inferences fairly deducible therefrom. We
should affirm the judgment unless it appears
from the evidence that the judgment is
plainly wrong or without evidence to support
it.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). In addition, the "credibility of a witness, the
weight accorded the testimony, and the inferences to be drawn from
proven facts are matters solely for the fact finder's
determination." Crawley v. Commonwealth, 29 Va. App. 372, 375,
512 S.E.2d 169, 170 (1999).
Patterson was convicted of violating Richmond City Code
§ 4-63. That code section provides, in pertinent part, that
"[n]o owner shall fail to exercise proper care and control of a
dog or cat to prevent it from becoming a public nuisance."
Richmond City Code § 4-63(a). Richmond City Code § 4-1 provides,
in pertinent part, that "[p]ublic nuisance means, for purposes of
[Chapter 4 of the Richmond City Code, entitled "Animal Control"],
any dog or cat that . . . barks, whines, howls, or makes other
annoying noises in an excessive, continuous, or untimely
fashion." Richmond City Code § 4-38 provides that "[i]t shall be
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unlawful for any person to violate or fail, refuse or neglect to
comply with any provision of this chapter, and except as
otherwise provided in any section of this chapter, upon
conviction thereof, such person shall be punished for a Class 4
misdemeanor." None of these code sections require that a certain
number of people be affected by the barking, whining, howling, or
other "annoying" noise of a dog or cat for there to be a
violation.
The Supreme Court's rationale in City of Virginia Beach v.
Murphy, 239 Va. 353, 389 S.E.2d 462 (1990), governs the
resolution of this appeal. Murphy involved a dispute over the
validity of a city's noise ordinance that made criminal as a
public nuisance conduct that affected "any person." 1 The trial
1
The ordinance at issue in Murphy provided, in relevant
part:
"(a) It shall be unlawful for any
person to create, or allow to be created any
unreasonably loud, disturbing and
unnecessary noise in the city or any noise
of such character, intensity and duration as
to be detrimental to the life or health of
any person or persons or to unreasonably
disturb or annoy the quiet, comfort or
repose of any person or persons. The
following acts, among others are declared to
be loud, disturbing and unnecessary noise in
violation of this section, but such
enumeration shall not be deemed to be
exclusive:
(1) The playing of any television set,
radio, tape player, phonograph or any
musical instrument in such a manner or with
such volume as to annoy or disturb the
quiet, comfort or repose of any person or
persons.
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court found the ordinance invalid, ruling that "the city 'may not
under its general police power undertake to make conduct which
affects only one person (any person) a public nuisance.'" Id. at
354, 389 S.E.2d at 463.
On appeal, the Supreme Court initially stated as follows:
If an ordinance makes criminal that
conduct which is a public nuisance, it is a
presumptively valid exercise of the
locality's police power. White v. Town of
Culpeper, 172 Va. 630, 635, 1 S.E.2d 269, 272
(1939). On the other hand, if the prohibited
conduct is merely a private nuisance, it
cannot be made criminal because a
municipality has no authority under its
police power to punish conduct which is a
private nuisance. Id. at 636, 1 S.E.2d at
272. Thus, this decision turns on whether
the forbidden conduct can be classified as a
public nuisance or only a private nuisance.
Murphy, 239 Va. at 355, 389 S.E.2d at 463. In drawing a
distinction between the two types of nuisance, the Supreme Court
described a private nuisance as "one which implicates or
interferes with a right or interest that is unique to an
individual, such as an interest in land." Id. Conversely, the
Supreme Court noted,
"'[i]f the annoyance is one that is common to
the public generally, then it is a public
nuisance. The test is not the number of
persons annoyed, but the possibility of
annoyance to the public by the invasion of
its rights. A public nuisance is one that
injures the citizens generally who may be so
* * * * * * *
(b) Any person who violates the
provisions of this section shall be guilty
of a Class 4 misdemeanor."
Id. at 354, 389 S.E.2d at 462-63 (quoting Virginia Beach City
Code § 23-47 (emphasis added)).
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circumstanced as to come within its
influence.'"
Id. at 356, 389 S.E.2d at 463 (quoting Couture v. Bd. of Educ. of
Town of Plainfield, 6 Conn. App. 309, 315, 505 A.2d 432, 435
(1986) (quoting Nolan v. New Britain, 69 Conn. 668, 678, 38 A.
703, 706 (1897) (citation omitted))). "Thus," the Court
concluded, "the distinction between a public and a private
nuisance does not depend solely upon the number of people who are
actually affected, as the trial court held." Id.
Turning to the noise ordinance before it, the Supreme Court
held as follows:
The right not to be subjected to
"unreasonably loud, disturbing and
unnecessary noise," as provided in [the
city's noise ordinance], is "common to all
members of the general public," Restatement
(Second) of Torts § 821B comment g (1977),
and not particular to individuals in the
enjoyment of their property. In that sense,
this ordinance differs from that in White,
which attempted to control door-to-door
solicitation and affected only the individual
property rights of householders.
For these reasons, we are of opinion
that the trial court erroneously concluded
that the activity proscribed in the ordinance
could only be a private nuisance.
Id. at 356, 389 S.E.2d at 464.
Applying this reasoning to the present case, we conclude the
City was not required to prove that a particular number of people
were actually affected by the barking of Patterson's dogs for
that barking to constitute a public nuisance under Richmond City
Code § 4-63. Like the subject ordinance in Murphy, the instant
ordinance, as applied here, is a noise ordinance. It requires,
among other things, that dog owners properly control their dogs
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to prevent them from barking "in an excessive, continuous, or
untimely fashion." Richmond City Code § 4-1; Richmond City Code
§ 4-63. Plainly, the "right not to be subjected to" such barking
is common to the public generally and not unique to "individuals
in the enjoyment of their property." Murphy, 239 Va. at 356, 389
S.E.2d at 464. Hence, the barking of dogs "in an excessive,
continuous, or untimely fashion" is a public nuisance.
Here, the record contains ample evidence to support the
trial court's determination that Patterson failed to exercise
proper care and control of her dogs to prevent them from becoming
public nuisances. Russell and Rhoads, both neighbors of
Patterson, offered extensive testimony regarding the excessive,
continuous, and untimely barking of Patterson's dogs they endured
on several occasions between February 12, 2000, and July 25,
2000. Furthermore, Officer Miskovic testified that she heard
Patterson's dogs barking in an "excessive, continuous, and
untimely" fashion on July 25, 2000.
We hold, therefore, that the evidence presented at trial was
sufficient, as a matter of law, to prove beyond a reasonable
doubt that the barking of Patterson's dogs constituted a public
nuisance, in violation of Richmond City Code § 4-63.
Accordingly, the trial court did not err in denying Patterson's
motion to strike the City's evidence.
III. FAILURE TO QUASH SUMMONS
Patterson also contends the trial court erred in failing to
quash the summons charging her with violating Richmond City Code
§ 4-63 because a misdemeanor summons or warrant may issue only
when the offense is committed in the presence of the issuing
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officer. Patterson argues Officer Miskovic issued the summons in
reliance on events she did not directly observe. We disagree
with Patterson's premise.
While it is true that an animal control officer may issue a
summons for a violation of an ordinance only if the offense is
committed in the officer's presence, see Code § 3.1-796.104, here
Officer Miskovic specifically testified at trial that she heard
Patterson's dogs barking in an "excessive, continuous, and
untimely" fashion when she went to Patterson's home on July 25,
2000. She further stated she would not have issued the summons
had she not heard Patterson's dogs barking that night. Thus,
aware from her earlier visits to Patterson's home in response to
neighbor's complaints that this was not an isolated occurrence,
Miskovic issued the summons for a violation that was committed in
her presence. See Penn v. Commonwealth, 13 Va. App. 399, 412
S.E.2d 189 (1991) (noting that an offense is committed in an
officer's presence when the officer directly observes the
commission of the offense through his or her senses).
We hold, therefore, that the trial court did not err in
denying Patterson's motion to quash the summons.
IV. ADMISSION OF EMERGENCY COMMUNICATIONS LOG
Patterson further contends the trial court erred in admitting
into evidence under the business records exception to the hearsay
rule a log from the City's Bureau of Emergency Communications
showing police dispatches to Patterson's address. The City,
Patterson argued, failed to lay a sufficient foundation for the
admission of that log.
We are unable to review this claim because the appendix
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filed in this case does not include the exhibit in question or
any information regarding the position or other qualifications of
the witness who testified about the exhibit. We cannot determine
the propriety of the admission of the exhibit without that
information.
The appendix must include "any testimony and other incidents
of the case germane to the questions presented," Rule 5A:25(c)(3),
and "exhibits necessary for an understanding of the case that can
reasonably be reproduced," Rule 5A:25(c)(6). "The appendix is a
tool vital to the function of the appellate process in
Virginia. . . . By requiring the inclusion of all parts of the
record germane to the issues, the Rules promote the cause of
plenary justice." Thrasher v. Burlage, 219 Va. 1007, 1009-10, 254
S.E.2d 64, 66 (1979) (per curiam). Thus, the filing of an
appendix that complies with the Rules, is "essential to an
informed collegiate decision." Id. Because the appendix filed in
this case does not contain parts of the record that are essential
to the resolution of the issue before us, we will not decide the
issue.
Furthermore, we do not presume on appeal that the trial court
has erred. Indeed,
"[w]e have many times pointed out that on
appeal the judgment of the lower court is
presumed to be correct and the burden is on
the appellant to present to us a sufficient
record from which we can determine whether
the lower court has erred in the respect
complained of. If the appellant fails to do
this, the judgment will be affirmed."
Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6
(1993) (quoting Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255,
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256-57 (1961)).
Because the appendix is insufficient to decide the present
issue, we affirm the judgment of the trial court.
V. AMENDMENT OF SUMMONS
Finally, Patterson contends the trial court erred in amending
the summons to include a range of dates, February 12, 2000,
through July 25, 2000, that was not included in the original
summons. She maintains that, because its jurisdiction is
derivative, the trial court may not expand its jurisdiction by
hearing evidence regarding the barking of her dogs that took
place on any dates other than July 25, 2000.
Again, however, we are unable to review this claim due to
deficiencies in the appendix before us. We find nothing in the
appendix relating to either the hearing on the amendment of the
summons or the trial court's ruling concerning that amendment.
Without that information, we cannot determine the issue before
us. Hence, we affirm the judgment of the trial court. Id.
For these reasons, we affirm Patterson's conviction.
Affirmed.
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