Opinion
Def. ID#. 0111013502
Submitted: August 12, 2002
Decided: November 4, 2002
Melanie C. Withers, Esquire
Joseph A. Hurley, Esquire
Jeffrey M. Weiner, Esquire
Dear Counsel:
This is my decision on defendant Wayne N. Elliot's ("Elliott") Motion to Dismiss. The State of Delaware ("State") filed an Information against Elliott, charging him with Animal Cruelty in violation of 11 Del. C. § 1325(b)(4) and Possession of a Firearm during the Commission of a Felony in violation of 11 Del. C. § 1447A. Elliott seeks dismissal of the Animal Cruelty charge on constitutional grounds. Elliott's motion is denied for the reasons stated herein.
Factual Background
The only undisputed facts are that Elliott "shot and killed a dog in excess of six months of age, running loose without a collar and license," on Elliott's property. The dog allegedly belonged to the Adkins family. Elliott alleges that he believed the dog was "menacing his wife" and was "part of the assortment of wild dogs that were unwanted and rogue canines that inhabited the area." However, the State paints a different picture of the events, describing the dog as "running around and jumping playfully." The State claims eyewitnesses will testify at trial that the dog was "not behaving in an aggressive or threatening manner."
The dog was neither accompanied by a member of the Adkins family nor wearing a collar.
Discussion
Elliott asserts he is entitled to a dismissal of the Animal Cruelty charge on three grounds. One, Elliott argues that 7 Del. C. § 1709 is unconstitutionally vague because it fails to address whether the privilege applies to licensed and/or unlicensed dogs. Two, Elliott argues that 11 Del. C. § 1325(b)(4) is unconstitutionally vague because it fails to specify a requisite mens rea as to the essential element that the animal in question belong to another. Three, Elliott argues that 11 Del. C. § 1325(b)(4) is so broad that it gives police officers, prosecutors, and juries limitless discretion. I will consider these arguments in turn. A. The Privilege — Licensed Dogs vs. Unlicensed Dogs
7 Del. C. § 1709(b) provides: "Any person may injure or kill a dog in self-defense or to protect livestock, poultry or another human being at the time such dog is attacking such livestock, poultry or human being."
11 Del. C. § 1325 defines cruelty to animals as follows:
(b) A person is guilty of cruelty to animals when the person intentionally or recklessly:
(1) Subjects any animal to cruel mistreatment; or
(2) Subjects any animal in the person's custody to cruel neglect; or
(3) Kills or injures any animal belonging to another person without legal privilege or consent of the owner; or
(4) Cruelly or unnecessarily kills or injures any animal whether belonging to the actor or another. This section does not apply to the killing of any animal normally or commonly raised as food for human consumption, provided that such killing is not cruel. A person acts unnecessarily if the act is not required to terminate an animal's suffering, to protect the life or property of the actor or another person or if other means of disposing of an animal exist which would not impair the health or well-being of that animal; or
(5) Captures, detains, transports, removes or delivers any animal known to be a domestic farm animal, pet or companion animal, or any other animal of scientific, environmental, economic or cultural value, under false pretenses to any public or private animal shelter, veterinary clinic or other facility, or otherwise causes the same through acts of deception or misrepresentation of the circumstances and disposition of any such animal. . . .
Cruelty to animals is a class A misdemeanor, unless the person intentionally kills or causes serious injury to any animal in violation of paragraph (4) of this subsection or unless the animal is killed or seriously injured as a result of any action prohibited by paragraph (5), in which case it is a class F felony.
Elliott asserts that the so-called "privilege statute" is unconstitutionally vague and, by extension, the statute defining the offense of Animal Cruelty is likewise unconstitutional. Of course, given that many of the facts are disputed, it remains to be seen whether or not the "privilege statute" even appplies to Elliott's actions. This will have to be determined at trial. I also note that Elliott failed to cite, and I have been unable to locate, authority for Elliott's proposition that solely because the language of a "privilege statute" is unconstitutionally vague, it necessarily follows that the corresponding "penalty statute" is unconstitutional.
Section 1709(b) is an affirmative defense, which the defendant must prove by a preponderance of the evidence at trial. See State v. Arterbridge, Del. Super., Cr. A. No. S99-01-0257, Stokes, J. (June 26, 2000), app. dism., 768 A.2d 467 (Del. 2001).
Nonetheless, I will address Elliott's argument on its merits. Elliott contends that the General Assembly reinstituted the holding in Harrington v. Hall, 63 A. 875 (Del. 1906), when it deleted all references to "licensed" or "unlicensed" dogs in the 1998 statutory amendment to the "privilege statute." Elliott interprets the language in Harrington as standing for the proposition that only the killing of a licensed dog is prohibited by law. In the alternative, Elliott argues that the removal of the distinguishing language renders the statute too vague to survive constitutional scrutiny. I find neither argument persuasive.
First, Elliott's cite to Harrington is without merit. That case involved a claim of civil trespass. The fact that the dog at issue was licensed was used only to demonstrate that the plaintiff had standing to sue for the damages incurred.
In Harrington, the jury charge read, in part:
[I]f you find that the dog was, at the time of the killing, [registered under an act of Assembly], he was the personal property of the owner, and as such was the subject of larceny, and any person unlawfully killing a dog registered under said act is unquestionably liable to the owner thereof for the value of dog. 63 A. at 875. However, the court later noted that whether the dog was owned by the plaintiff must be determined "from all the facts and circumstances surrounding [the] case as testified to by the witnesses." Id. The registration of the dog was not considered dispositive.
Second, the change in the statutory language does not render the statute unconstitutionally vague. "[T]he void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983); accord Sanders v. State, 585 A.2d 117, 127 (Del. 1990); Upshur v. State, 420 A.2d 165, 168 (Del. 1980); see also Connally v. General Constr. Co., 269 U.S. 385, 391 (1926) ("A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates that first essential of due process of law"). "[A]ny statute may be drafted in vague language, but inartful drafting does not give rise to a constitutional claim. Rather, it forces the courts to apply the ambiguous statute to construe its language." Sanders, 585 A.2d at 127.
I must, when applying section 1709 to Elliott's conduct at issue, determine whether this section is clear enough so that Elliott should have realized that his shooting of a dog on his property was not privileged. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 58-59, (statute must be reviewed as it applies to defendant's own conduct), reh'g denied, 429 U.S. 873 (1976); Wright v. State, 405 A.2d 685, 687 (Del. 1979) (same); Upshur, 420 A.2d at 168. If Elliott's conduct falls within the common understanding of the statutory terms, then the statute is not void for vagueness. Robinson v. State, 600 A.2d 356, 365 (Del. 1991).
Elliott correctly cites the rules governing statutory construction. As the Delaware Supreme Court has enunciated:
It is a respected canon of statutory construction that a legislature is presumed to mean what it says, so that if it alters a statute, it is presumed to be making a change, rather than merely saying correctly what had been intended, but badly said, in the first place. The burden of establishing that no change was made in the law, as in overcoming other presumptions, rests upon the party contending that no change was intended by an amendment, and that none was made, whether intended or not.
Stiftel v. Malarkey, 384 A.2d 9, 13 (Del. 1977). Clearly, the General Assembly intended to eliminate any distinction between licensed and unlicensed dogs. However, I fail to see how this amendment renders the statute unconstitutional. In fact, the amendment eliminates the need for one to distinguish between a licensed or unlicensed dog, an undoubtably difficult task to undertake at a distance. Pursuant to the language of section 1709(b), Elliott was on notice that he was privileged to shoot any dog in self-defense. As previously noted, Elliott will be permitted to argue the applicability of self-defense at trial. Therefore, I conclude that to the extent that the privilege may apply to Elliott, it is not unconstitutionally vague.
B. Mens Rea as to "Belonging to" Element
Elliott also argues that Section 1325(b)(4) of Title 11 is unconstitutionally vague because the statute does not set out the state of mind as to the element that an animal belongs to another. Moreover, he argues that this deficiency is not cured by 11 Del. C. § 251(b) or by 11 Del. C. § 252, in the latter case because this would lead to the "illogical result" that a person could violate subsection 1325(b)(4) by acting intentionally or recklessly, but not knowingly as to the essential element that the animal belongs to another.
The State agrees that the Animal Cruelty statute does not specifically define a mental state for the element that the victim-animal belong to another. However, the State argues that 11 Del. C. § 252 cures the apparent deficiency.
Section 252 reads:
When a statute defining an offense prescribes the state of mind that is sufficient for the commission of the offense, without distinguishing among the elements thereof, the provision shall apply to all the elements of the offense, unless a contrary legislative purpose plainly appears.
This issue appears to be one of first impression in Delaware. The animal cruelty statutes of several states and the Model Penal Code contain similar language. The General Assembly did not specify upon which statute, if any, the "belonging to" language of section 1325 was modeled. The issue of the mens rea with respect to the ownership element has not been addressed in many cases.
The following states and United States territory have animal cruelty statutes which limit their applicability to animals who "belong" to someone: Alabama, Iowa, Louisiana, Maine, Oklahoma, Pennsylvania, Texas, Virginia, and Guam. See Ala. Code § 3-1-10; Ark. Code Ann. § 5-62-101; Iowa Code § 717B.2; La. Rev. Stat. Ann. § 14:102.1; Me. Rev. Stat. Ann. tit. 17 § 1031; Okla. Stat. tit. 21 § 1685; 18 Pa. Cons. Stat. § 5511; Tex. Penal Code Ann. § 42.09; Vt. Stat. Ann. tit. 13 § 352; Va. Code Ann. § 3.1-796.122; 9 Guam Code Ann. § 70.10.
However, there appear to be two general schools of thought: (1) that some knowledge on behalf of the defendant is necessary and must be proven, though this knowledge may be inferred from the evidence presented; or (2) that no knowledge is required because this element is present solely to protect the animal owner's emotional and pecuniary investment. Both views merit discussion.
The case of Tilbury v. Texas, 890 S.W.2d 219 (Tex.Ct.App. 1994), illustrates the first approach to the mens rea requirement. In Tilbury, the defendant was convicted under an animal cruelty statute, the pertinent parts of which follow:
(a) A person commits an offense if he intentionally or knowingly:
. . .
(5) kills, injures, or administers poison to an animal . . . belonging to another without legal authority or the owner's effective consent . . .
. . .
(c) for the purposes of this section, "animal" means a domesticated living creature and wild living creature previously captured. "Animal" does not include an uncaptured wild creature or a wild creature whose capture was accomplished by conduct at issue under this section.
At issue on appeal was whether there had been adequate evidence presented at trial to permit an inference to be made that the defendant knew that the dogs were domesticated. For purposes of this discussion, the domestication element may be roughly equated to whether an animal belongs to another. The Texas court concluded that sufficient evidence had been presented to permit the jury to conclude that the defendant knew the dogs were domesticated:
They were both wearing collars. Their owner testified to pet-like demeanors and they lived nearby. [The defendant] admitted to having seen [one of the dogs] previously. The jury was free to disbelieve some or all of [the defendant's] testimony and conclude he did know the dogs were pets.
Tilbury, 890 S.W.2d at 222. The defendant went on to challenge the jury instructions as given, complaining that the charge did not make it clear to the jury that the prosecution had to prove both that the defendant intentionally and knowingly injured the dogs and that he knew the dogs were domesticated. The State argued that it need not prove such knowledge. Unfortunately, the court did not address the merits of this argument, as it concluded that the defendant had not suffered egregious harm from the absence of such an instruction. Id.
The second school of thought is primarily represented by the Model Penal Code. Section 250.11(3) of the Model Penal Code prohibits the purposeful or reckless "kill[ing] or injur[ing] of any animal belonging to another without legal privilege or consent of the owner." The drafters provided the following by way of commentary:
Subsection (3) covers one who "kills or injures any animal belonging to another without legal privilege or consent of the owner." This provision is addressed partially to the protection of the owner's property interest, but it is designed also to safeguard the emotional investment that many persons make in their pets. Of course, one may kill or injure another's animal in self-defense or to protect crops or livestock, and the consent of the owner will justify such activities as the butchering of cattle.
I interpret this commentary to reflect the drafters' intent to treat the element that the animal belong to another to lack a mens rea. Simply put, the State must prove that another person owned the animal but need not prove that the defendant knew that the animal was so owned.
The strict liability approach presents several problems. The greatest of these is that to do so alleviates the State's burden of proof. To lessen the State's burden while Section 252 is in place would appear to be contrary to legislative intent. I conclude that Section 252 dictates that the mental state with respect to the "belonging" element be either reckless or intentional.
I note that the Delaware Code contains numerous crimes which elevate in degree based upon vulnerability of the victim. This vulnerability need not be one that is readily noticeable to the actor. Included in this category are the offenses against pregnant women and those against either the young or the elderly. It is not a defense to any of these crimes that the actor was unaware of the victim's age or pregnancy status. See 11 Del. C. § 612 (second degree assault); 11 Del. C. § 770, 771, 772, 773 (rape crimes), 11 Del. C. § 762 (general definitions applicable to sexual offenses, "mistake as to age" no defense). However, in these cases, specific code provisions clarify that the defendant's knowledge is unnecessary. The Animal Cruelty statute does not contain such a provision.
Elliott argues that to limit the mental state to reckless or intentional is "illogical" because it excludes the knowing mens rea. However, the Delaware Code clarifies, "When recklessness suffices to establish an element of an offense, the element also is established if a person acts intentionally or knowingly." 11 Del. C. § 253. While perhaps the statute could be worded in a more precise fashion, the statute is not unconstitutional for failure to specifically define a mental state for this element. C. State Discretion
Elliott's final argument is that the Animal Cruelty statute sets forth so many potential violations that it fails to provide adequate notice as to which conduct is prohibited. Elliott also challenges the statute as overbroad. These arguments are without merit.
In analyzing a facial challenge to the overbreadth and vagueness of a law, I first must determine "whether the enactment reaches a substantial amount of constitutionally protected conduct. If not, then the overbreadth challenge must fail." Robinson v. State, 600 A.2d 356, 362 (Del. 1991) (internal quotation marks and citation omitted). Elliott has not alleged that his conduct in shooting the dog was constitutionally protected. Therefore, the overbreadth claim must fail.
Statutory schemes may proscribe many different variations of conduct as long as each is sufficiently detailed so as to provide notice to the person of ordinary intelligence. See Grace v. State, 658 A.2d 1011, 1015-16 (Del. 1995). Elliott himself lists the conduct which is prohibited. I fail to see how his demonstration of his knowledge of the proscribed conduct illustrates that the statute is unconstitutionally vague.
Likewise, any argument based upon the fact that the prosecution is left with the discretion to charge a defendant with either a misdemeanor or a felony charge based on the same conduct is without merit. Prosecutors have long held this discretion. See Albury v. State, 551 A.2d 53, 61 (Del. 1988). Absent an allegation of selective prosecution, based upon "an unjustifiable standard such as race, religion, or other arbitrary classification," Elliott's Equal Protection guarantees do not come into play. United States v. Batchelder, 442 U.S. 114, 115 n. 9 (1979) (internal quotation marks and citation omitted).
Conclusion
For the reasons outlined above, Elliott's Motion to Dismiss is denied with respect to his challenges to the constitutionality of Delaware's Animal Cruelty statute.
IT IS SO ORDERED.