Topeka The man who helped torture and kill Scruffy, a 6-pound Yorkshire terrier, had his arson conviction upheld Friday by the Kansas Supreme Court.
Marcus Rodriguez was convicted by a Wyandotte County District Court jury in 1998 and sentenced to 27 months in prison. Before his trial, he pleaded guilty to a misdemeanor charge of animal cruelty and received probation.
The arson charge was filed because, as a felony, it was a more severe charge than animal cruelty.
In 1997, Rodriguez and three companions participated in the little dog's death. Its jaws were pulled apart, shot with a pellet rifle, placed in a plastic bag, doused with a flammable liquid, set afire while still alive and repeatedly beaten with a shovel.
The participants recorded their deeds on videotape. Someone sent the Kansas City police a copy of the tape, which shows six minutes of torture.
Rodriguez appealed, raising claims of insufficient evidence, erroneous jury instructions, improper admission of evidence and prosecutorial misconduct.
He also said the trial court's decision to impose a harsher than normal sentence was not substantial, compelling or supported by the evidence.
In a unanimous ruling by Justice Edward Larson, the state's highest court rejected all of Rodriguez's claims and upheld the trial court's sentence.
Rodriguez argued the state failed to prove beyond a reasonable doubt the crime of arson because there was no evidence the burning was done without the consent of the owner.
The dog belonged to a man who had moved and left it in the care of relatives of one of the others charged. Rodriguez argued he thought Scruffy's rightful owner was one of four involved in the dog's death.
"The fact that a person has an interest in property, however, does not give that person the right to burn that property if others who also have an interest therein have not given their consent," Larson wrote for the court.
"Moreover, the consent of one of several property owners to the burning of jointly owned property does not make the act lawful as against the other property owners who did not consent," Larson wrote.
Rodriguez also argued he should have received probation rather than prison time. The justices disagreed.
"The trial court expressed staightforwardly that a prison sentence was appropriate instead of probation because it did not believe Rodriguez could be trusted to abide by probation on any terms," the court said.
The dog's death outraged animal rights activists and legislators who proposed increasing animal cruelty penalties.
This year, the House passed a bill, dubbed "Scruffy's Law," making it a felony to intentionally kill, maim, torture, burn, mutilate or cause serious physical injury to an animal. The measure died in the Senate, however.
The case is State vs. Marcus Rodriguez, No. 82,454. Texts of Supreme Court decisions are at www.kscourts.org.