State v. DeFrancesco, 14971

• Decision Date: 21 November 1995
• Docket Number: No. 14971,14971
• Citation: 668 A.2d 348,235 Conn. 426
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Susan DeFRANCESCO.

Page 348

668 A.2d 348

235 Conn. 426

STATE of Connecticut v. Susan DeFRANCESCO.

No. 14971.

Supreme Court of Connecticut.

Argued Sept. 20, 1995.

Decided Nov. 21, 1995.

Jack W. Fischer, Assistant State's Attorney, with whom, on the brief, were Mary M. Galvin, State's Attorney, and Gerard Esposito, Assistant State's Attorney, for appellant-appellee (state).

Michael J. Graham, Hartford, for appellee-appellant (defendant).

Gurrie A. Fandozzi, Jr., Hartford, filed a brief for the International Bengal Cat Society as amicus curiae.

Before CALLAHAN, BORDEN, NORCOTT, KATZ and PALMER, JJ.

KATZ, Justice.

The dispositive issues in this appeal and cross appeal are: (1) whether the list of prohibited felidae in General Statutes § 26- 40a ¹ is exclusive; and (2) whether § 26-40a is unconstitutionally vague as applied to the facts of this case. We conclude that the list of felidae is not exclusive and that the statute is not unconstitutionally vague.

The facts and procedural history relevant to this appeal are set forth as follows. "On January 27, 1992, Jan Puzas, an employee of the United States Department of Agriculture, regulatory enforcement animal care division (USDA), went to 15 Bryson Avenue in Seymour to perform a prelicensing inspection in response to the defendant's application for an exhibitor's license for one rabbit. Puzas observed that the defendant kept one jungle cat, one bengal cat and one bobcat surrounded by a stockade fence at the back of her yard. Puzas played with the animals and took pictures of them. She later gave the pictures to Sergeant Rick Lewis and Detective Jim Williams, officers of the Connecticut department of environmental protection (DEP). On March 10, 1992, the defendant received a class three license for the rabbit from the USDA under the Animal Welfare Act. 7 U.S.C. § 2133 (1993); 9 C.F.R. §§ 2.1 through 2.11 (1993). The defendant has never been found to be exempt from General Statutes § 26-40a by the DEP.

"On February 16, 1992, the DEP, under the authority of a warrant secured after the defendant attempted to sell the three cats, removed the animals from the defendant's premises and placed them in the care of Elaine Burk, an expert in the field of felidae ² and the head of Future Promise, a facility where rescued wild animals are cared for. The DEP also issued a misdemeanor complaint to the defendant charging her with a violation of General Statutes § 26-40a. Burk testified that these animals have a genetic propensity to be potentially dangerous. Burk further testified that bobcats weigh from twenty to forty-five pounds and hunt deer in Massachusetts during the winter; ³ jungle cats weigh from fifteen to thirty pounds and a bengal cat is a cross between an Asian leopard cat and a domestic cat. Burk also testified as to the behavior of each of these animals while in her care. The bobcat bit both her and her husband and used her hind claws to cause lacerations. The jungle cat uses her claws routinely and caused a two and one-half inch bruise on Burk's thigh. The bengal fought with the bobcat and, when Burk tried to separate the animals, the bengal attacked Burk, causing a laceration completely around her wrist and perforating her forearm four times. ⁴

"The trial court found that the defendant possessed potentially dangerous animals in violation of General Statutes § 26-40a. Specifically, the trial court found that the state proved beyond a reasonable doubt that (1) the defendant possessed a bobcat, a jungle cat and a bengal cat, (2) the defendant did not qualify for an exemption from General Statutes § 26-40a, (3) the list in General Statutes § 26-40a is nonexclusive and serves only as an example of dangerous felidae, (4) the bobcat, whether hybrid or not, is specifically included on the list, (5) the jungle cat and the bengal cat are included on the list as they are of a type similar to those set forth in the list, (6) General Statutes § 26-40a is not void for vagueness, and (7) the license for the rabbit given under the Animal Welfare Act to the defendant by the USDA does not preempt General Statutes § 26-40a. Thus, the trial court found the defendant guilty on all three counts and fined her $25.00 on each count." State v. DeFrancesco, 34 Conn.App. 741, 743-45, 643 A.2d 271 (1994).

An appeal to the Appellate Court followed. The defendant presented two issues. First, she claimed that she is exempt from the prohibitions of § 26-40a either because: (1) she was operating a zoo; or (2) she possessed other potentially dangerous animals prior to May 23, 1983. ⁵ Id., at 745, 643 A.2d 271. The Appellate Court rejected this claim. Both the defendant's proffered definition of zoo ⁶ and that found in Webster's Third New International Dictionary ⁷ contain the element of keeping animals for public display. Because the defendant failed to present evidence at trial that she had kept these animals for public exhibition, the Appellate Court held that the trial court's conclusion that the defendant was not exempt from the prohibitions of § 26-40a for operating a zoo was not clearly erroneous. ⁸ Id., at 745-46, 643 A.2d 271. Similarly, the Appellate Court held that because the trial court had not credited the defendant's testimony that she legally possessed other potentially dangerous animals prior to May 23, 1983, the defendant had failed to prove that she was exempt from prosecution. Id., at 746, 643 A.2d 271.

Second, the defendant claimed that the trial court had improperly convicted her "because the animals [that she possessed] are not specifically listed in the statute or, in the alternative, the statute is unconstitutionally vague as applied in this case." Id., at 747, 643 A.2d 271. The Appellate Court first discussed the defendant's bobcat. The defendant claimed that, although purebred bobcats are clearly prohibited by the statute, her bobcat is not included within the prohibitions of the statute because it is a hybrid bobcat. Id. The Appellate Court noted that the trial court had not decided whether the defendant's bobcat is a hybrid or a purebred. The Appellate Court stated, however, that because it is obvious that a purebred bobcat is prohibited by the statute, it would assume for the sake of the defendant's argument that her bobcat is a hybrid. Id., at 747 n. 6, 643 A.2d 271. Having first concluded that it is unclear whether the statute applies to a hybrid bobcat, the court looked to DEP regulations to aid it in determining whether a hybrid bobcat falls within the purview of the statute. ⁹ Id., at 747-48, 643 A.2d 271. The court noted that the DEP, in its "regulations created for the enforcement of General Statutes § 26-55, ¹⁰ has deter mined mined that an animal that results from the crossbreeding of any species listed in General Statutes § 26-40a shall be considered the wild animal of that species. Thus, the DEP considers the crossbreed of a bobcat and a domestic cat to be a bobcat. Regs., Conn. State Agencies § 26-55-2. ¹¹ We see no reason to depart from that interpretation by the DEP. Thus, we conclude that the possession of a hybrid bobcat is prohibited by the statute." Id., at 748, 643 A.2d 271.

The Appellate Court further concluded that § 26-40a is not unconstitutionally vague as applied to this hybrid bobcat. The Appellate Court reasoned that "[b]ecause the statute specifically prohibits bobcats, a person of ordinary intelligence has a reasonable opportunity to know that the possession of a hybrid bobcat is prohibited." Id., at 749, 643 A.2d 271. Furthermore, the statute provides a stan dard dard for law enforcement. "Because the statute states that bobcats are, as a matter of law, potentially dangerous, law enforcement officers know that they must determine that the animal is a bobcat before a possessor of an animal can be determined to have violated the statute." Id., at 749-50, 643 A.2d 271. Therefore, because the statute includes hybrid bobcats and is not unconstitutionally vague as applied to hybrid bobcats, the Appellate Court affirmed the trial court's judgment of conviction with respect to the bobcat.

In contrast, the Appellate Court concluded that neither the plain language nor the legislative history of § 26-40a clearly indicates that the legislature intended that the statute apply to jungle cats and bengal cats. The court reasoned that because the term "include" can be used as either a word of enlargement or a word of limitation, the plain language of the statute is unclear. In addition, the court stated that the "legislative history fails ... to provide guidance as to whether the statutory prohibition applies to the listed felidae only, to the listed felidae and all other potentially dangerous felidae species, or to the listed felidae and all other potentially dangerous felidae regardless of species." Id., at 750, 643 A.2d 271. The court held, therefore, that because the statute fails to inform a person of ordinary intelligence whether the prohibition applies to an animal's species or to a particular animal's behavior, possessors of jungle cats and bengal cats are not warned that their possession of these cats violates the statute. Moreover, the statute does not provide guidance to law enforcement officials. Id., at 750-51, 643 A.2d 271. Thus, the court held that § 26-40a is unconstitutionally vague as applied to the jungle cat and the bengal cat and reversed the convictions pertaining to those two cats. Id., at 751, 643 A.2d 271.

We granted the state's petition for certification to decide whether the Appellate Court had improperly determined that § 26-40a is unconstitutionally vague as applied to the jungle cat and the bengal cat. ¹² Additionally, we granted the defendant's petition for certification to address her claim that the Appellate Court had improperly concluded that § 26-40a is not unconstitutionally vague as applied to the hybrid bobcat. ¹³ Because we conclude that the list of felidae prohibited by the statute is not exclusive and that ...