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.
