The West Virginia Supreme Court recently affirmed the conviction of Austin Stevens, who was found guilty of felony animal cruelty for intentionally shooting a calf. The ruling, issued on May 18, 2026, clarifies the legal definitions surrounding animal cruelty and the criteria for lesser included offenses in criminal cases.

This case arose from an incident in December 2021 when a neighbor discovered a calf belonging to Vickie and Rusty Scarberry had been shot with arrows. The calf showed severe signs of distress, prompting the neighbor to alert the Scarberrys. Upon their arrival, they found the calf struggling to breathe with arrows protruding from its body. The couple’s attempts to save the calf were futile, and they consented to have an Animal Control Officer euthanize it.

When the officer arrived, he followed the blood trail to Stevens's home. Stevens admitted to shooting the calf, claiming it was due to the animal trespassing on his property. He faced charges under West Virginia Code § 61-8-19(b) for felony animal cruelty, which prohibits torturing, mutilating, or maliciously killing an animal.

During the trial, Stevens requested that the jury be instructed on the possibility of a lesser included offense of misdemeanor animal cruelty, arguing that his actions could be seen as less severe than the felony charge. However, the circuit court denied this request, leading to Stevens's conviction. He was sentenced to a maximum of five years in prison, but the term was suspended in favor of probation and home confinement.

Background

The case, designated as State of West Virginia v. Austin Stevens (docket number 23-603), began with an indictment by a Cabell County grand jury in April 2022. The Scarberrys, who owned the calf, testified against Stevens, detailing the events leading to the calf's death. Animal Control Officer Jon Rutherford also provided evidence during the trial regarding the condition of the calf and the circumstances surrounding its shooting.

Stevens’s defense included testimony from his grandmother and himself, who claimed he acted out of fear and frustration. Despite these defenses, the jury found him guilty of the felony charge. Stevens then moved for a new trial, asserting that the court erred by not allowing the lesser included offense instruction.

The Ruling

The West Virginia Supreme Court, led by Chief Justice Bunn, upheld the lower court's decision. The court ruled that misdemeanor animal cruelty is not a lesser included offense of the felony provision. According to the court, the definitions of the two offenses do not align sufficiently to warrant the instruction. The court stated, “The misdemeanor animal cruelty offense of intentionally, knowingly, or recklessly mistreating an animal in a cruel manner is not a lesser included offense of the felony offense of maliciously killing an animal.”

The court referenced a two-part inquiry used to determine if a lesser included offense instruction is warranted. The first part examines whether the legal elements of the lesser offense are included in the greater offense. The court found that the elements of misdemeanor animal cruelty include aspects that are not required for the felony charge, thus failing the first part of the inquiry.

The court emphasized the strict elements test, which has historically been applied in West Virginia, stating, “Before a lesser offense can be said to contribute a necessary part of a greater offense, all the legal ingredients of the corpus delicti of the lesser offense must be included in the elements of the greater offense.” This strict adherence to the elements test led the court to conclude that Stevens was not entitled to the lesser included offense instruction.

Impact

This ruling has significant implications for future animal cruelty cases in West Virginia. It clarifies the criteria for lesser included offenses, reinforcing the need for strict adherence to the elements of each crime. The court's decision may deter defendants from seeking lesser included offense instructions unless the legal definitions clearly align.

The ruling also highlights the importance of understanding the nuances of animal cruelty laws. By affirming the felony conviction, the court sends a message about the seriousness of animal cruelty offenses and the legal system's commitment to protecting animals from harm.

What's Next

Stevens has the option to appeal the ruling to a higher court, although details regarding any potential appeal were not available in the court filing. The case may also influence how similar cases are prosecuted in the future, particularly regarding jury instructions on lesser included offenses.