STATE OF FLORIDA v. WENDY B. CARRIER

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

STATE OF FLORIDA, )

)

Appellant, )

)

v. ) Case Nos. 2D16-2915

) 2D16-2917

CHRISTOPHER JAMES CARRIER and )

WENDY B. CARRIER, ) CONSOLIDATED

)

Appellees. )

___________________________________)

Opinion filed March 9, 2018.

Appeals from the Circuit Court for Polk

County; J. Dale Durrance, Judge.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Elba Caridad Martin,

Assistant Attorney General, Tampa,

for Appellant.

Michael N. Dicks of the Law Office of

Michael Dicks, P.A., Bartow, for Appellees.

SILBERMAN, Judge.

In these consolidated appeals, the State challenges the orders that grant

the motions to dismiss filed by Christopher James Carrier and Wendy Carrier and

dismiss the charges against them in these prosecutions for fifty-six counts of forging,

counterfeiting, or altering an animal health document in violation of section 585.145(3),

Florida Statutes (2013 and 2014). The trial court determined that section 585.145(3)

was unconstitutionally vague on its face and violated substantive due process. Based

on our interpretation of the language in section 585.145(3), we determine that the

statute requires a knowing alteration that results in a false or deceptive certificate and

that the statute is not facially vague and does not violate substantive due process for

criminalizing otherwise innocent conduct. Thus, we reverse and remand for further

proceedings.

The State contends that the trial court erred in determining that section

585.145(3) is unconstitutionally vague on its face and violates substantive due process.

The purpose of section 585.145 is "for the control, suppression, eradication, and

prevention of the spread of contagious, infectious, and communicable disease and to

protect animals in the state." § 585.145(1). Section 585.145(3) provides as follows:

(3) A person who forges, counterfeits, simulates or alters, or

who knowingly possesses, uses, presents or utters, any

forged, counterfeited, altered or simulated official certificate

of veterinary inspection or any other document relating to

animal health requirements or substitutes, represents, or

tenders an official certificate of veterinary inspection or any

other document relating to animal health requirements of

one animal for another animal commits a felony of the third

degree, punishable as provided in s. 775.082, s. 775.083, or

s. 775.084.

(Emphasis added.) The operative charging documents against the Carriers allege that

they "did forge, counterfeit, simulate or alter an official certificate of veterinary inspection

or any other document relating to animal health requirements," with each count naming

an identification number that appears to refer to a particular document. Earlier charging

documents alleged that they also "did knowingly possess, use, present or utter, said

forged, counterfeited, altered or simulated official certificate of veterinary inspection."

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The Carriers each filed a motion to dismiss, both contending that section

585.145(3) violates substantive due process because that statute arbitrarily criminalizes

innocent conduct and lacks a mens rea element. They argued the statute contained no

requirement of guilty knowledge with respect to the alteration of an official certificate of

veterinary inspection (certificate) and would make criminal an innocent or even helpful

alteration of the certificate.

The Carriers also argued that the statute was void for vagueness because

the term "alters" was not defined. In making their argument, the Carriers gave

hypothetical examples of ways the certificate could be innocently altered such as

whiting out portions, adding additional information to the forms such as a company's

logo, or as the Carriers argue was done here, merely removing the vertical and

horizontal lines within the text box so that more immunizations could fit on the form.

At the hearing on the motion, the State argued that the statute was

constitutional as applied to the Carriers. The State also explained that it filed amended

charging documents (the fourth amended as to Dr. Carrier and the third amended as to

Ms. Carrier) after the motions to dismiss were filed. The amendments omitted the

"possession language," and thus the cases cited in the motion regarding possession of

an item without some type of intent were not applicable because the Carriers were

"simply charged with forging, altering, counterfeiting, et cetera." A litigant may not

challenge the constitutionality of a portion of a statute that does not affect the litigant.

State v. Hagan, 387 So. 2d 943, 945 (Fla. 1980); Waterman v. State, 654 So. 2d 150,

153 (Fla. 1st DCA 1995). Thus, the Carriers cannot challenge the possession portion of

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the statute, leaving their challenge to the portion of the statute regarding forging,

counterfeiting, simulating, or altering a certificate.

The facts asserted at the hearing reflect that Dr. Carrier is a veterinarian

who worked at his father's practice, Care Animal Clinic. Ms. Carrier owned a Petland

franchise in Lakeland where she was selling puppies. When selling puppies, Ms.

Carrier was required to provide a certificate of veterinary inspection. Ms. Carrier

downloaded the certificate form and altered it. Dr. Carrier's clinic would examine and

immunize the puppies. Dr. Carrier signed altered certificates for only the puppies at his

wife's business. When he signed certificates for other businesses, he signed the correct

forms.

The defense contended at the hearing that there were three things Ms.

Carrier did to alter the certificate. First, she altered the text boxes for immunizations by

removing the lines because all the immunizations would not fit on the form. In doing so,

she included the dates and lot numbers instead of the names of the immunizations.

Second, she used an older form that contained an older State seal. Third, the footer on

the official form was deleted or cut off.

The State contended that it had "a little bit of a dispute with" the facts as

presented by the defense. The State contended that the investigation began because

unhealthy dogs were being sold from Ms. Carrier's establishment. The last six counts

charged were for dogs that were purchased from Ms. Carrier's establishment and

became sick and, in some cases, died. The first fifty counts were for puppies that had

not been sold. The State contended the motive behind the alteration of the certificate

was to "obfuscate what immunizations ha[d] been given to the dogs and what had not

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been given to the dogs." In addition, the State asserted that Dr. Carrier was not

licensed "to sign and authorize" certificates during the time period alleged.

The record contains the charging documents and probable cause affidavit.

The affidavit reflects that in a sworn taped statement Ms. Carrier "admit[ted] to creating

and forging/altering" the certificates. Dr. Carrier also admitted in a sworn taped

statement that his wife "created and forged/altered" the certificates and that he was

responsible for issuing the certificates. He had issued the correct certificates to other

customers of the clinic, and "he was aware of the correct unaltered official form" but

"only presents and issues the altered forms to his wife's business and animals."

The affidavit further states that the form must display the disease that the

vaccine is targeting, such as rabies or canine distemper. By replacing the information

with nondescript codes and numbers, the animal purchaser would not know the type of

vaccines that had been given. By omitting the footer from the certificate, Ms. Carrier

eliminated "the required state veterinary contact information" that would advise a

purchaser whom to contact with questions relating to the form. Also omitted was "the

distribution legend, form retention instructions and official form number."

After the hearing on the motion, the trial court entered orders granting the

motions to dismiss and dismissing the charges. The trial court found that the statute

had the potential to criminalize otherwise innocent conduct. The trial court also found

that the statute was unconstitutionally vague on its face and violated the guarantee of

substantive due process under the Fourteenth Amendment and under Article I, Section

9, of the Florida Constitution. The trial court found the word "alters" to be vague, as the

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Carriers argued. The trial court also found the phrase "official certificate of veterinary

inspection" to be vague, an argument that the Carriers did not make in the trial court.

Substantive Due Process—Criminalizing Otherwise Innocent Conduct

The Carriers argued that the statutory language prohibiting a person from

altering a certificate violates substantive due process for criminalizing otherwise

innocent conduct, such as the editing of a .pdf document available online, without

requiring a mens rea, or criminal intent. The State contends that when the word "alters"

in section 585.145(3) is read in context with the preceding words "forges, counterfeits,

simulates," the word "alters" can be read to contain a mens rea requirement of alters

with the intent to defraud.

Statutory interpretation is an issue of law that we review de novo. Wegner

v. State, 928 So. 2d 436, 438 (Fla. 2d DCA 2006). The law gives a strong presumption

in favor of the constitutionality of a statute. Id. The courts are required to construe a

statute in a way that avoids declaring it unconstitutional. State v. Giorgetti, 868 So. 2d

512, 518 (Fla. 2004); Wegner, 928 So. 2d at 438. Offenses with no mens rea are

disfavored, and a scienter element is often necessary to comply with due process

requirements. Giorgetti, 868 So. 2d at 515, 518. In defining a crime, "the Legislature

generally has broad authority to determine any requirement for intent or knowledge." Id.

at 515. We first look to a statute's plain language to determine if the legislature included

an intent requirement. Id. But even when a statute does not expressly state an intent

element, "Florida courts ordinarily will 'presume that the Legislature intends statutes

defining a criminal violation to contain a knowledge requirement absent an express

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indication of a contrary intent.' " Wegner, 928 So. 2d at 439 (quoting Giorgetti, 868 So.

2d at 516).

In Giorgetti, the Florida Supreme Court construed sexual offender

registration statutes to have a knowledge element so as to "include a requirement that

the alleged offender knows of the obligation to register and maintain current addresses."

868 So. 2d at 520; see also Ramirez v. State, 113 So. 3d 28, 30 (Fla. 2d DCA 2012)

(construing a statute that prevented felons from being employed at a bail bond agency

to contain a mens rea requirement because absent the knowledge element the statute

criminalized "otherwise innocent conduct, i.e., working at a clerical job"); Wegner, 928

So. 2d at 439 (construing a statute to require "knowledge by the accused that the

person from whom or about whom he has received the computer transmissions is a

minor").

The statute at issue here, section 585.145(3), does not expressly contain

an intent element for one who alters a certificate. The statute applies to a person who

"forges, counterfeits, simulates, or alters" a certificate. Id. The legislature has not made

clear that it intended to dispense with a mens rea element with respect to one who

alters a certificate. See Giorgetti, 868 So. 2d at 520. Thus, under Giorgetti, we

construe the statute to mean that the alteration of the certificate was done knowingly as

opposed to an accidental alteration of the certificate. But a knowing alteration could still

include innocent conduct of making insignificant changes to the certificate.

The ordinary meaning of the word "alter" is " 'to change or modify' and to

make 'different in some particular characteristic without changing it into something

else.' " Newberger v. State, 641 So. 2d 419, 421 (Fla. 2d DCA 1994) (quoting New

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York v. Versaggi, 629 N.E.2d 1034, 1038 (N.Y. 1994)). In construing the statute, we

look at the word "alters" in context. "Under the doctrine of noscitur a sociis (a word is

known by the company it keeps), one examines the other words used within a string of

concepts to derive the legislature's overall intent." Nehme v. Smithkline Beecham

Clinical Labs., Inc., 863 So. 2d 201, 205 (Fla. 2003); see also Stratton v. Sarasota

County, 983 So. 2d 51, 56 (Fla. 2d DCA 2008).

The State relies on People v. Bratis, 141 Cal. Rptr. 45 (Cal. Ct. App.

1977), to argue that the placement of "alters" with "forges" and "counterfeits" reflects a

legislative intent to require the alteration be done with an intent to defraud. In Bratis, the

court considered two statutes, one prohibiting the alteration or counterfeiting of any

parimutuel ticket and the other prohibiting the knowing possession of "any altered,

forged, or counterfeit parimutuel ticket." 141 Cal. Rptr. at 48 (quoting Cal. Bus. & Prof.

Code § 19667 (West 1974)). The defendants argued that the statutes failed to require

the alteration be made with an intent to defraud. The court looked to the ordinary

meaning of "alter" and also referred to California statutory definitions for alteration of a

negotiable instrument and for forgery. Id. The court stated that alteration was

contained within the statutory definition of forgery. Id. The court concluded that the

juxtaposition of the words "counterfeit" and "forged" made "it clear that the alteration

referred to and prohibited is an alteration with intent to defraud, and not a mere innocent

mutilation of the parimutuel ticket." Id.

However, this court has declined to read a specific intent to injure or

defraud into a statute. See State v. Koczwara, 837 So. 2d 591, 594 (Fla. 2d DCA

2003). In Koczwara, this court considered section 322.212(1)(a), Florida Statutes

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(2001), which made it unlawful to knowingly possess "any blank, forged, stolen,

fictitious, counterfeit, or unlawfully issued driver's license or identification card or any

instrument in the similitude of a driver's license or identification card unless possession

by such person has been duly authorized by the department." Id. at 593-94. This court

explained that "[b]oth 'forged' and 'fictitious' denote unauthorized changes made to a

document that cause the document to convey information that is not true. The core

meaning of 'forgery' is 'falsely making or altering a writing.' Random House Unabridged

Dictionary 751 (2d ed. 1993) (emphasis supplied)." Koczwara, 837 So. 2d at 593. This

court concluded that a driver's license with a falsely altered license number is a forged

or fictitious license under section 322.212(1)(a). Id.

The defendant argued that the State should be required to prove "a

specific intent to injure or defraud." Id. at 594. This court stated that although the

general prohibition against forgery in section 831.01, Florida Statutes (2001), expressly

required "the forgery be committed 'with intent to injure or defraud,' " section 322.212

contained no similar requirement. Id. This court concluded that it would be improper to

require the State to prove a specific intent to injure or defraud when the legislature did

not provide for an element of specific intent. Id. (citing Reynolds v. State, 842 So. 2d

46, 49 (Fla. 2002) (stating the legislature's "broad authority to determine any

requirement for intent in the definition of a crime")).

Florida's forgery statute provides that "[w]hoever falsely makes, alters,

forges or counterfeits a public record . . . with intent to injure or defraud any person,

shall be guilty of a felony of the third degree." § 831.01, Fla. Stat. (2017) (emphasis

added). A more specific forgery statute provides that "[w]hoever falsely makes, alters,

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forges, or counterfeits any doctor's certificate or record of examination to an application

for a policy of insurance . . . with intent to injure or defraud any person, commits a felony

of the third degree." § 831.21 (emphasis added). The statute dealing with

counterfeiting a payment instrument defines "counterfeit" to mean the manufacture

without permission or the manufacture "with a fictitious name, routing number, or

account number." § 831.28(1). It is a third-degree felony "to counterfeit a payment

instrument with the intent to defraud." § 831.28(2)(a).

The ordinary definition of "simulate" is "to give or assume the appearance

or effect of often with the intent to deceive." Simulate, Merriam-Webster Online

Dictionary, https://www.merriam-webster.com/dictionary/simulate (last visited Dec. 5,

2017). In the legal definition of "simulation" it states as follows: "1. An assumption of an

appearance that is feigned, false, or deceptive. 2. Civil law. A feigned, pretended act,

usu. to mislead or deceive." Simulation, Black's Law Dictionary (10th ed. 2014).

Thus, "forges" and "counterfeits" refer to making something false or

fictitious, and "simulate" also includes assuming an appearance that is false or

deceptive. We recognize that other statutes do explicitly require a false alteration, such

as the ones cited previously. But if we construe "alters" in context with "forges,"

"counterfeits," and "simulates," we are led to the conclusion that the legislature intended

that a person alter a certificate to make it false or deceptive in order to constitute a

violation of the statute. Construed in this way, innocent alterations such as changing

the font or adding a logo would not be criminalized. Instead, only alterations that made

the certificate false or deceptive would constitute a crime. But we do not go so far as to

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read the statute as requiring a specific intent to defraud. See Koczwara, 837 So. 2d at

594.

The Carriers rely on cases such as State v. Saiez, 489 So. 2d 1125, 1129

(Fla. 1986), and State v. Thomas, 133 So. 3d 1133, 1136 (Fla. 5th DCA 2014), which

determined that statutes that criminalized the possession of embossing machines and

counterfeit payment instruments, respectively, were unconstitutional for criminalizing

behavior that is otherwise inherently innocent and violated substantive due process. In

Thomas, although the portion of the statute prohibiting possession of a counterfeit

payment instrument did not include a specific intent, another portion of the statute did.

133 So. 3d. at 1134. The statute provided that "[i]t is unlawful to counterfeit a payment

instrument with the intent to defraud a financial institution, account holder, or any other

person or organization." Id. The court stated that the legislature knew how to draft an

intent to defraud element and could accomplish its legitimate purpose by drafting the

possession portion of the statute with an intent to defraud element. Id. at 1137. But in

both Thomas and Saiez, it was the mere possession of an item that the courts found

constituted criminalizing otherwise innocent conduct, not the actual counterfeiting or

altering as is the issue in this case.

Based on Giorgetti, we infer a knowledge element so that a mistaken

alteration would not constitute a violation of the statute. But a knowing alteration could

still have the potential to capture innocent conduct, such as the examples the trial court

gave of changing the font or color of the font or adding a pet store logo to the certificate.

Thus, we necessarily construe the statute in context as requiring that the knowing

alteration result in a false or deceptive document. Accordingly, we conclude that

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section 585.145(3) does not violate substantive due process as criminalizing otherwise

innocent conduct.

Substantive Due Process—Void for Vagueness

The Carriers argued and the trial court agreed that section 585.145(3) is

facially void for vagueness as to the phrase "alters." The State argued that the statute

is not vague as applied to the Carriers. In this early stage of the case, we have little

information to go on as to the facts—the charging documents, the probable cause

affidavit, and the attorneys' assertions at the motion to dismiss hearing. Many of the

facts are undisputed, but the State asserted additional facts at the hearing, such as that

the Carriers' purpose of omitting the text boxes on the certificates was to provide only lot

numbers instead of names of vaccines so as to obfuscate which vaccines puppies had

received. The State also contended that Dr. Carrier was not licensed to sign the

certificates during the time period charged. Defense counsel did not appear to

specifically dispute these assertions at the hearing, but his argument was that Ms.

Carrier omitted the text boxes because all the immunizations would not fit on the form.

The courts are to construe a statute in favor of upholding it when it is

"reasonably possible and consistent with constitutional rights." State v. Brake, 796 So.

2d 522, 527 (Fla. 2001). But when a citizen challenges a statute as vague, "any doubt

as to a statute's validity" should be resolved in the citizen's favor. Id. "Substantive due

process implicates the vagueness doctrine, which requires that 'a statute gives a person

of ordinary intelligence fair notice of what constitutes forbidden conduct. The language

of the statute must provide a definite warning of what conduct is required or prohibited,

measured by common understanding and practice.' " State v. Menuto, 912 So. 2d 603,

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608 (Fla. 2d DCA 2005) (citations and internal quotations omitted in Menuto) (quoting

Sieniarecki v. State, 756 So. 2d 68, 74 (Fla. 2000)). In addition, "the statute must define

the offense in a manner that does not encourage arbitrary and discriminatory

enforcement." Brake, 796 So. 2d at 528. We note that it does not appear that arbitrary

and discriminatory enforcement has been a problem with section 585.145(3), which was

first enacted in 1991, as there are no reported cases dealing with the statute. See Ch.

91-294, § 5, at 2803, Laws of Fla.

As recognized by the Eighth Circuit, the United States Supreme Court in

Johnson v. United States, 135 S. Ct. 2551 (2015), "applied a more expansive

vagueness analysis than prior case law might have suggested. Before Johnson, we

required defendants challenging the facial validity of a criminal statute to establish that

'no set of circumstances exist[ed] under which the [statute] would be valid.' " United

States v. Bramer, 832 F.3d 908, 909 (8th Cir. 2016) (alterations in Bramer) (quoting

United States v. Stephens, 594 F.3d 1033, 1037 (8th Cir. 2010)). "Johnson, however,

clarified that a vague criminal statute is not constitutional 'merely because there is some

conduct that [clearly] falls within the provision's grasp.' " Bramer, 832 F.3d at 909

(alteration supplied) (quoting Johnson, 135 S. Ct. at 2561). But the defendant must still

prove that the challenged provision is vague as to the defendant's conduct. Id.

In the trial court, the State argued that the statute was not vague as

applied to the Carriers, but the Carriers argued and the trial court found the statute was

facially vague. When the overbreadth doctrine is not implicated, the court looks at the

facts in the case before it in considering a vagueness challenge. State v. Barnes, 686

So. 2d 633, 636 (Fla. 2d DCA 1996). The Carriers have not asserted that First

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Amendment freedoms are involved so as to implicate the overbreadth doctrine. See id.

at 636 n.2.

A defendant may not make a facial vagueness challenge if the defendant's

conduct is "clearly proscribed by the plain and ordinary meaning of the statute."

Sieniarecki, 756 So. 2d at 74 (quoting Barnes, 686 So. 2d at 637). Therefore, the court

must first evaluate the defendant's conduct before considering other hypothetical

situations. Id. at 75; Menuto, 912 So. 2d at 609. Here, the trial court did not first

examine the Carriers' conduct to determine if the statute was vague as applied to their

conduct. However, we note that an as-applied analysis would be difficult on the record

currently before us when the facts have not been sufficiently developed.

With respect to the trial court's conclusion that the phrase "official

certificate of veterinary inspection" is vague, a point that the Carriers did not argue to

the trial court, we reject that conclusion. It is clear as applied to the Carriers that official

certificates were allegedly altered or simulated.

The Carriers' vagueness argument centers on the word "alters." When a

statute does not define a term, the courts may look "to other statutory provisions, case

law, or the plain and ordinary meaning of a word of common usage" to determine the

word's meaning. Brake, 796 So. 2d at 528. As described above, "alter" means to

change or modify. Taken in context with the words around it to mean an alteration that

makes the certificate false or deceptive, the statute is not vague on its face as the trial

court concluded because the hypothetical examples of innocent alterations that the trial

court gave would no longer fall within the statute's reach. It is questionable whether the

Carriers' activities fall within the statute because we do not know what the State can

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prove regarding any deceptive nature of the alterations. And if the State can prove that

Dr. Carrier signed the certificates when he was not authorized, perhaps the State can

prove his conduct amounts to a violation of the statute.

In summary, we determine that section 585.145(3) is not vague on its

face; further, in light of our construing the statute as requiring that a violation must be

based on the knowing alteration of a certificate such that it results in a false or deceptive

document, the statute does not violate substantive due process. Accordingly, we

reverse the trial court's order and remand for further proceedings.

Reversed and remanded.

MORRIS and ROTHSTEIN-YOUAKIM, JJ., Concur.

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