State v. Smith
State v. Smith
Opinion of the Court
Opinion
The defendant, Bradshaw Smith, appeals from the judgment of conviction of one count of permitting a dog to roam at large in violation of General Statutes § 22-364 (a). On appeal, the defendant claims that § 22-364 (a) is void for vagueness and that there was insufficient evidence to support his conviction. We disagree and, accordingly, affirm the judgment of the trial court.
The basic facts are not in dispute. On July 16, 2010, the defendant and his dog were on the grounds of Windsor High School (school), when Officer Joseph Beau-doin of the Windsor police department received a call to investigate a report of a dog roaming on the school grounds. Beaudoin arrived at approximately 5:40 a.m.
I
On appeal, the defendant claims that § 22-364 (a) is void for vagueness as applied to the facts of this case. He argues that the statute does not give a person of ordinary intelligence “fair warning that walking a dog at a public high school totally under his verbal control, but without a leash, falls within the parameter of [§ 22-364 (a)].” The state argues that “the ordinary meaning of the words ‘roam,’ ‘at large,’ and ‘control,’ as well as relevant case law, affords a person of ordinary intelligence fair warning that allowing a dog to wander out of sight twenty or thirty yards away is to allow a dog to roam at large while not under the control of the owner in contravention of § 22-364.” We agree with the state.
“The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. The Connecticut constitution also requires that
“In challenging the constitutionality of a statute, the defendant bears a heavy burden. To prevail on his vagueness claim, [t]he defendant must demonstrate beyond a reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement. . . . The proper test for determining [whether] a statute is vague as applied is whether a reasonable person would have anticipated that the statute would apply to his or her particular conduct. . . . The test is objectively applied to the actor’s conduct and judged by a reasonable person’s reading of the statute .... [0]ur fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited . . . .” (Citation omitted; internal quotation marks omitted.) Id., 562. With these principles in mind, we turn to the particular facts of the present case.
The defendant asserts that neither he nor any reasonable person would know that walking an unleashed dog on the grounds of a public school would violate the statute. This assertion, however, does not encompass
The defendant argues that no reasonable person would know that permitting a dbg, who readily responds to voice commands, to wander on the grounds of a public school would equate to permitting a dog to “roam at large . . . and not [be] under the control of the owner . . . .” See General Statutes § 22-364 (a). The parties agree that the key statutory terms in this case are roam, at large and control. After reviewing the common meaning of these terms, we conclude that the statute gives fair and reasonable notice of what is prohibited. Accordingly, § 22-364 (a) is not void for vagueness as applied in this case.
II
The defendant also claims that there was insufficient evidence to support his conviction of permitting a dog to roam at large. He argues that § 22-364 (a) does not require that a dog be leashed and that the mere fact that his dog was off leash does not mean it was roaming at large, not under his control. He argues that the dog came immediately upon being called and that this demonstrates that he had control of the dog. The state argues that the dog was out of the defendant’s sight, behind some vehicles, approximately twenty to thirty yards away from the defendant, and, therefore, it was roaming at large, not under the defendant’s direct control. We agree with the state.
“It is axiomatic that the [trier of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the [trier of fact] to conclude that a basic fact or an inferred fact is true, the [trier] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [defendant’s guilt].” (Citations omitted; internal quotation marks omitted.) State v. Reid, 123 Conn. App. 383, 391-92, 1 A.3d 1204, cert. denied, 298 Conn. 929, 5 A.3d 490 (2010). With this
In the present case, the court, acting as the trier of fact, found
As we explained in part I of this opinion, the plain language of the relevant portion of § 22-364 (a) prohibits a dog owner from, inter aha, allowing a dog freely to move around another’s property, unrestrained and unhindered, and not under the direct influence of the dog’s owner. We conclude that in the present case, the facts found by the court demonstrate beyond a reasonable doubt that the defendant’s dog was freely moving around the school grounds, unrestrained and unhindered, and not under the direct influence of the defendant, including but not limited to the period of time it was out of the defendant’s sight.
The judgment is affirmed.
In this opinion the other judges concurred.
The defendant filed a motion for articulation with the trial court, asking that the court articulate its findings and conclusions in the present case. The court granted the motion, stating that, “due to inadvertence, the [cjourt’s remarks made at the time of the rendering of the decision were not electronically recorded and no written memorandum of decision ha[d] been issued.” The court complied with the defendant’s request and issued a written articulation.
The court found that at the time Beaudoin arrived on the scene, the dog was out of eyesight, behind a vehicle twenty to thirty yards away from the
On appeal, the defendant also argues that, although the evidence demonstrated that Beaudoin could not see the dog, there was no evidence that the defendant could not see the dog. The defendant has not briefed a claim on appeal challenging, as clearly erroneous, the court’s finding that the defendant could not see the dog when it was behind the vehicles. Nevertheless, we conclude that the court reasonably could have found, on the basis of the evidence and the reasonable inferences drawn therefrom, that because the defendant was standing with Beaudoin, and Beaudoin could not see the small dog because it was behind some vehicles approximately twenty to thirty yards away, the defendant also could not see the dog.
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