COURT OF APPEALS OF VIRGINIA PRIVATE  


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 

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 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 
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 
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 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."   The trial 
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 
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 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 
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 
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, 
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.
  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.

*      *      *      *      *      *      *

	(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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