From Evans v. Commonwealth, decided Monday by the Virginia Court of Appeals, in an opinion by Judge Kimberley Slayton White, joined by Judges Daniel Ortiz and Frank Friedman:
Once Knox was in the home and Officer Reed was positioned in the door frame, the officer commanded the dog to apprehend Evans as the officer could no longer see Evans. Knox bit Evans's upper left leg. Evans repeatedly punched Knox in the head with a closed fist and then used both of his hands to pry Knox's jaws apart. {Officer Reed testified that he observed Evans punch Knox three to four times in the head with a closed fist. Officer Reed commanded Evans not to harm the dog.} Once the dog released his leg, Evans put one hand over Knox's nose causing Knox to gag. Officer Reed testified that the noise on the video was Knox gagging, or "back breathing," because he was being suffocated. Officer Reed then struck Evans thrice rendering Evans unconscious; Knox bit Evans's bicep and took him to the floor. Officer Reed stated that he struck Evans because Knox was struggling to breathe, and Evans was continuing to hit the dog. Evans was then handcuffed while face-down on the ground, unconscious….
After the incident, Officer Reed observed a small laceration that appeared to be new below Knox's bottom left canine tooth. Knox had no observable injuries before the incident, but Officer Reed admitted he had not evaluated Knox before the shift began. Evans himself received injuries that were enough to require hospital admission….
Evans challenges his conviction for animal cruelty because there was no evidence that Knox [the police dog ] was injured during the incident. He notes that although there was a laceration on the dog's gum, there was no testimony that Knox needed medical attention or was in pain. He argues that the evidence presented is not enough to sustain a conviction for animal cruelty.
To obtain a felony conviction for animal cruelty, the Commonwealth was required to prove the defendant "torture[d] any animal, willfully inflict[ed] inhumane injury or pain not connected with bona fide scientific or medical experimentation on any animal, or cruelly or unnecessarily beat[ ], maim[ed], mutilate[d], or kill[ed] any animal." "The Commonwealth can establish that a defendant willfully inflicted inhumane injury on an animal if it can present evidence that the defendant 'voluntarily acted with a consciousness that "inhumane injury or pain" would result.'"
This Court has struggled over the years to define and describe what it is to "willfully inflict inhumane injury" to an animal. "A voluntary act becomes willful, in law, only when it involves conscious wrong or evil purpose on the part of the actor, or at least inexcusable carelessness, whether the act is right or wrong." "The act [or omission] done must be intended or it must involve a reckless disregard for the rights of another and will probably result in an injury." …
Here, Evans struck Knox on the head after the dog began biting Evans's leg. This voluntary act of striking Knox does not rise to animal cruelty because Evans did not "willfully inflict inhumane injury" as defined under Virginia law. Evans's reflexive punches thrown at the dog were not intended to harm Knox and did not rise to the level of "willful." When deciding if an action is willful, we look at not only the circumstances surrounding the action, but the intent behind it.
Punching and kicking a police dog has been found to be sufficient to rise to animal cruelty. Blankenship v. Commonwealth (Va. Ct. App. 2020). However the distinction is that in prior cases the police dog suffered severe injuries after a prolonged, repeated beating. Knox, at the very worst, suffered a small laceration on the inside of his mouth. In comparison, the dog in Blankenship received a "digestive injury" to the point where it stopped eating and was lethargic. Not only is the small laceration not a serious injury, there is no way to confirm it was a result of the punches thrown by Evans, as Officer Reed did not evaluate Knox before their shift.
Evans's actions were an in-the-moment response to being attacked in his own home by a police dog. There was no "conscious wrong or evil purpose" behind his actions as he merely did enough to get the dog to release his leg. When looking at the surrounding circumstances, it cannot be said that Evans intended to cause harm to Knox in a way punishable under Virginia law. Therefore, the trial court erred in denying the motion to strike and finding Evans guilty of animal cruelty.
The court also reversed Evans' conviction for disorderly conduct, which was based on Evans' telling police officers "You get your fucking piece of shit ass out of here, alright," and shouting other profanities:
This Court has adopted the position that "the fighting words doctrine may be limited in the case of communications addressed to properly trained police officers because police officers are expected to exercise greater restraint in their response than the average citizen." … Not only did [Evans] not verbally or physically threaten the officers, but all remarks were made while he was either standing on his front porch, from his door jamb, or from inside the residence and did not incite any bystanders or neighbors. While Evans's remarks are surely rude and unseemly, telling the officers to leave and to get off his property, even when laced with profanity, were not actions established by the facts in this case that would have a "direct tendency" to cause a violent reaction from a reasonably trained police officer. In fact, the record contains no testimony that either officer felt threatened by the remarks.
And the court reversed Evans' conviction for resisting arrest, for state law reasons that you can read here. Here are more of the facts:
During daylight hours on April 3, 2022, Lynchburg Police Officers S.C. Reed and Williams responded to a "disorderly call." Both officers wore their police uniforms and displayed their badges of authority. Officer Reed arrived first with his police dog, Knox. Knox was trained to bite and hold a suspect even if a suspect resisted. Knox wore a bullet proof vest with "police" on one side and "K-9" on the other.
Footage from Officer Reed's body worn camera showed him arriving at a residence, exiting his patrol vehicle, and approaching a home while leaving Knox in the police vehicle. There was no one outside when Officer Reed arrived. As the officer walked across the lawn, Evans slammed his front door shut. From the lawn, Officer Reed announced that he was a police officer. Evans opened the door, stepped onto the front porch and appeared "very amped up, very angry, and very aggressive." Officer Reed inquired, "you ok?" Evans stated, "ya, I'm fine. How you doing?" Officer Reed stated, "Good. What's going on?" As Evans re-entered his home he yelled, "ain't no fucking thing going on, get the fuck out of here." Evans also repeatedly slammed his door and banged loudly on his windows while the officers were outside his residence.
Officer Reed acknowledged Evans's request to leave and told Evans not to come outside because he did not want to arrest Evans. Nonetheless, Evans reappeared and asked what Officer Reed had said. Officer Reed repeated his warning and explained that the police department had received calls complaining about Evans's behavior outside of his home. Evans replied [while] {standing on the door jamb}, "I'm not inside [sic] motherfucker, leave." Officer Reed acknowledged Evans's second request to depart and began to walk back to his vehicle.
As Officer Reed turned to leave, Evans opened the door again, and from the door jamb stated, "You get your fucking piece of shit ass out of here, alright." Officer Evans responded, "Sir you need to go inside." Evans continued, "you can leave. Get the fuck back in the car LPD and leave, alright." Officer Reed again acknowledged Evans's request but ordered him to "stay inside."
As Officer Reed walked back to his patrol vehicle, Evans continued to yell at him from inside of the residence. Officer Reed ordered Evans to remain in his home or he would be arrested for disorderly conduct. Evans continued to shout profanities that could be heard outside his residence.
At this juncture, Officer Reed determined that he would arrest Evans for disorderly conduct. Officer Reed noted that, based on his training and experience, he believed that Evans was under the influence of narcotics. Consequently, Officer Reed retrieved Knox from his patrol vehicle. Officer Reed noted that Knox was to be a deterrent to any aggression and was to be a way to protect both himself and Officer Williams, who arrived at the scene as he was retrieving the dog. While Officer Reed was in the road next to his police car, he warned Evans that he would "g[o] to jail for disorderly conduct" if he exited the residence again. Nevertheless, Evans continued to slam the door and scream profanities. The officer could hear Evans yelling at him from inside the residence.
When Officer Reed returned to the residence with Knox on a leash and Officer Williams with him both the storm door and front door were closed. Officer Reed told Officer Williams that he was going to arrest Evans for disorderly conduct and that Evans had "already been outside, so we've got him." Evans, from inside of the residence continued to yell profanities at the officers. Evans briefly opened the doors but then secured the storm door before Officer Reed informed him that he was under arrest and gestured for Evans to step out of the residence. Evans began to slam the front door. Officer Reed then opened the storm door and kicked the front door open before it latched, and Knox went inside. As Knox entered the home, Evans attempted to slam the door shut again and the door's handle struck Knox's head and body….
At no time during the entire encounter was anyone observed outside of the residence except for the officers and Evans. Evans was either on his front porch, at his front door jamb, or inside his residence during any interactions with the officers. The residence is surrounded by other houses and is situated at the corner of two public streets….
Kelsey Bulger, Senior Appellate Attorney at the Virginia Indigent Defense Commission, represents Evans.
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