Opinion
Record No. 2520-92-2
Decided: June 14, 1994
FROM THE CIRCUIT COURT OF HANOVER COUNTY, Richard H. C. Taylor, Judge
Affirmed.
L. Willis Robertson (Cosby and Robertson, on brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Fitzpatrick and Retired Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Nettie B. Lewis (appellant) appeals her convictions of operating a kennel without a special exception and one count of cruelty to animals, in violation of Hanover County Ordinance Title 1, art. 5, Sec. 2.6-1(c) and Code Sec. 3.1-796.122, respectively. She argues that the evidence was insufficient to convict on either charge and that the trial judge abused his discretion when imposing sentence. Finding no error, we affirm the convictions.
The record contains conflicting evidence raising factual questions that the trial judge decided adversely to appellant. On August 3, 1992, the Hanover County Zoning Inspector, the Chief Animal Warden, and a compliance officer for the Virginia Department of Agriculture who specialized in enforcement of animal health and welfare laws, seized 162 dogs, 26 cats, and 2 birds from appellant's home. Many of these animals died shortly thereafter. Their overall appearance was "atrocious." Additionally, the evidence established that many of the animal cages had more than one animal in them and were stacked in such a manner that excrement leaked from one cage to another, that the animals lacked adequate food, water, and ventilation, and that the stench from uncleaned urine and feces was overwhelming.
"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code Sec. 8.01-680). "The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). The above listed facts, when viewed in the light most favorable to the prevailing party, are clearly sufficient to show conduct amounting to cruelty to animals, i.e., lack of adequate shelter and care. Code Sec. 3.1-796.122.
Additionally, appellant argues that the Commonwealth failed to establish her ownership of the animals. Appellant owned the property on which the animals were housed. Rabies certificates and county license receipts for over 100 dogs and her kennel license for Seven Oaks Kennel were found in the residence. There was no contradictory evidence.
Appellant also challenges the sufficiency of the evidence to prove that she operated a kennel without a special exception, in violation of a Hanover County Ordinance. Appellant failed to raise this issue at trial. "No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." Rule 5A:18. Further, we will not consider an argument on appeal which was not presented to the trial court. Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule 5A:18). Accordingly, Rule 5A:18 bars our consideration of this question on appeal. Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.
Lastly, appellant contends that the trial judge exceeded his authority when establishing several of the conditions of suspension and probation for these two offenses. She argues that restitution was improperly ordered, as the "county" was not the "victim," and that the amount of restitution was unnecessary and not proved with specificity. We disagree. Code Sec. 19.2-303 authorizes a trial judge, after conviction, to suspend a sentence in whole or in part, and to place the defendant on probation "under such conditions as the court shall determine." Id. Among such conditions, restitution for "damages or loss" caused by the offense is expressly recognized and approved in several statutes. See Code Sections 19.2-303, -305, -305.1 and -305.2.
These statutes confer upon trial courts wide latitude and much discretion in matters regarding the suspension of sentences and probation in order to provide a remedial tool in the rehabilitation of criminals and, to that end, the statutes should be liberally construed. Nuckoles v. Commonwealth, 12 Va. App. 1083, 1085-86, 407 S.E.2d 355, 356 (1991); Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952); see also Grant v. Commonwealth, 223 Va. 680, 685, 292 S.E.2d 348, 351 (1982). Nevertheless, conditions upon the suspension of execution or imposition of a sentence must be reasonable in relation to the nature of the offense, the background of the offender, and the surrounding circumstances. Nuckoles, 12 Va. App. at 1086, 407 S.E.2d at 356.
We find nothing in this record to suggest that the limitation on the numbers of animals owned, the inability to operate another kennel without prior court permission, or the restitution amount ordered by the trial court, constitutes an unreasonable condition of the suspended sentence or an abuse of the trial court's discretion. The amount of restitution ordered is supported by the record, which established that the county spent over $40,000 caring for the animals prior to trial. The judge's award of $10,000 to the party who sustained the loss required by appellant's illegal actions is clearly a reasonable probationary condition.
Conditions of probation frequently involve some forfeiture of an appellant's rights, and if they are reasonably related to the offense proved, such conditions are valid. Appellant's inability to care adequately for a large number of animals was readily apparent from the record in this case and was a reasonable basis for the limitations on ownership and operation of a kennel.
Finding no error, we affirm the decision of the trial court.
Affirmed.