State v. DeFrancesco

• Decision Date: 21 July 1994
• Docket Number: No. 12700,12700
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Susan DeFRANCESCO.

Page 271

643 A.2d 271

34 Conn.App. 741

STATE of Connecticut v. Susan DeFRANCESCO.

No. 12700.

Appellate Court of Connecticut.

Argued April 5, 1994.

Decided June 1, 1994.

Certification Granted Limited to the Following Issue July 21, 1994.

Norton P. Feinstein, Norwalk, with whom was Joseph Cicala, Certified Legal Intern, for appellant (defendant).

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

Before DUPONT, C.J., and HEIMAN and SCHALLER, JJ.

HEIMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a trial to the court, of three counts of possession of a potentially dangerous animal in violation of General Statutes § 26-40a. ¹ On appeal, the defendant asserts that the trial court improperly rendered the judgment of conviction because (1) the defendant is exempt from the prohibition of possession as set forth in General Statutes § 26-40a, and (2) the possession of a bengal cat, jungle cat and hybrid bobcat is not specifically prohibited by General Statutes § 26-40a, and, in the alternative, General Statutes § 26-40a is void for vagueness. We reverse in part.

The following facts are necessary for a proper resolution of this appeal. 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 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. This appeal followed.

I

We must first consider the merits of the defendant's nonconstitutional claim that the trial court acted improperly in rendering judgment against the defendant. See Perry v. Perry, 222 Conn. 799, 805, 611 A.2d 400 (1992). Therefore, we must consider the defendant's claim that she is exempt from the prohibition enunciated in General Statutes § 26-40a. The defendant asserts that she was exempt from the statute because she was operating a zoo and because she legally possessed other potentially dangerous animals prior to May 23, 1983.

The defendant argues that the definition of "zoo" should be "any park, building, cage, enclosure, or other structure or premise in which a live animal or animals are kept for public exhibition or viewing, regardless of compensation." See 9 C.F.R. § 1.1 (1993). The dictionary definition of "zoo" is "a collection of living animals usually for display." Webster's Third New International Dictionary. The one element common to both definitions is that the animals are kept for public exhibition. The trial court found that "there was no indication that the defendant's use or care or possession of these animals remotely resembled that particular use."

We review this finding of fact to determine whether the trial court's determination was clearly erroneous. State v. Zarick, 227 Conn. 207, 228, 630 A.2d 565, cert. denied, --- U.S. ----, 114 S.Ct. 637, 126 L.Ed.2d 595 (1993); State v. Pierog, 33 Conn.App. 107, 114-15, 634 A.2d 301 (1993), cert. denied, 228 Conn. 920, 636 A.2d 851 (1994). The evidence included the fact that the defendant attempted to sell and breed the animals and that she attempted to procure an exhibitor's license from the USDA for her rabbit but not for her cats. Further, the defendant failed to provide any evidence that she possessed the cats for public exhibition. On the basis of all the evidence, the finding of fact that the defendant did not possess the cats for public exhibition is not clearly erroneous. Thus, the trial court did not improperly conclude that the defendant was not operating a zoo.

The defendant also claims that she is exempt from the statute because she legally possessed other animals prior to May 23, 1983. The only evidence as to this matter was the defendant's testimony, which the trial court did not believe. State v. Robinson, 213 Conn. 243, 256-57, 567 A.2d 1173 (1989). The defendant had the burden to prove that she was exempted. State v. Tinsley, 181 Conn. 388, 403, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981); State v. Anonymous 179 Conn. 516, 521, 427 A.2d 403 (1980). ⁵ She did not meet this burden.

II

The defendant next claims that the trial court improperly rendered the judgment of conviction against her because the animals are not specifically listed in the statute or, in the alternative, the statute is unconstitutionally vague as applied in this case.

A careful reading of the statute provides a number of possible interpretations. First, the statute can be interpreted to consider all felidae potentially dangerous and the list of species of felidae in the statute provides examples of the type of felidae considered potentially dangerous. Second, the statute can be interpreted to prohibit the possession of only the species specifically listed. Third, the statute can be interpreted to prohibit the possession of those felidae found on the list and all other felidae found by the trial court to be potentially dangerous. Contra Pinto v. Dept. of Environmental Protection, United States District Court, District of Connecticut, Docket No. B-87-523, 1988 WL 47899 (March 24, 1988).

In all cases, the statute clearly prohibits the possession of a purebred bobcat. The defendant argues that her bobcat is not included in the statute because the animal is a hybrid bobcat. ⁶ The statute is ambiguous as to whether the term "bobcat" includes hybrid bobcats. "When the language of the statute is plain and unambiguous, we need to look no further than the words themselves because we assume that the language expresses the legislature's intent.... If, however, the language is unclear, we must ascertain the intent of the legislature by examining the language of the statute, its legislative history and the purpose the statute is to serve." State v. White, 204 Conn. 410, 421-22, 528 A.2d 811 (1987); Beizer v. Goepfert, 28 Conn.App. 693, 698, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), cert. denied, --- U.S. ----, 113 S.Ct. 1416, 122 L.Ed.2d 786 (1993). Neither our case law nor the legislative history of this statute addresses the intended meaning of the list. See 26 H.R.Proc., Pt. 9, 1983 Sess., pp. 3481-86; 26 S.Proc., Pt. 5, 1983 Sess., pp. 1508-11; 12 H.R.Proc., Pt. 6, 1967 Sess., pp. 2552-53; 12 S.Proc., Pt. 3, 1967 Sess., p. 1512. When we interpret statutes, however, we accord great deference to the construction given to a statute by the agency charged with its enforcement. Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993); Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 300, 622 A.2d 1005 (1993); Borent v. State, 33 Conn.App. 495, 499, 636 A.2d 392 (1994). The DEP's regulations created for the enforcement of General Statutes § 26-55 has determined 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...