State v. Kelly

• Decision Date: 25 May 2005
• Docket Number: No. 2 CA-SA 2005-0018.,2 CA-SA 2005-0018.
• Parties: The STATE of Arizona, Petitioner, v. Hon. Virginia KELLY, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Seymour Jameel Abdullah, Real Party in Interest.
• Court: Arizona Court of Appeals

112 P.3d 682

210 Ariz. 460

The STATE of Arizona, Petitioner, v. Hon. Virginia KELLY, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Seymour Jameel Abdullah, Real Party in Interest.

No. -0018.

Court of Appeals of Arizona, Division 2, Department A.

May 25, 2005.

Barbara LaWall, Pima County Attorney, By Taren M. Ellis, Tucson, for Petitioner.

Seymour Jameel Abdullah, Tucson, In Propria Persona.

OPINION

BRAMMER, J.

¶ 1 The State of Arizona seeks special action relief from the respondent judge's order, entered in the underlying criminal prosecution of real party in interest Seymour Abdullah for unlawful possession of a firearm by a prohibited possessor, ascribing to the state the burden of proving Abdullah's right to possess firearms has not been restored. For the following reasons, we accept jurisdiction and grant relief.

¶ 2 Abdullah apparently has been charged with three counts of weapons misconduct for possessing a deadly weapon by a prohibited possessor.¹ A person commits misconduct involving weapons by knowingly "[p]ossessing a deadly weapon ... if such person is a prohibited possessor." A.R.S. § 13-3102(A)(4). A "`[p]rohibited possessor' means any person ... [w]ho has been convicted within or without this state of a felony... and whose civil right to possess or carry a gun or firearm has not been restored." A.R.S. § 13-3101(A)(6)(b). Before trial, the state requested that the respondent judge determine which party had the burden of proof with respect to the restoration of Abdullah's right to carry a firearm. The state argued this is an affirmative defense, which the accused must establish, not an element of the crime that the state must prove. After discussing the matter at the conclusion of a hearing on Abdullah's motion to suppress evidence, the respondent judge ruled that the fact that a defendant's right to possess firearms had not been restored is an element of the offense. This special action followed.

¶ 3 There are several reasons our acceptance of special action jurisdiction is appropriate. The state has no equally plain, speedy, or adequate remedy by appeal. See A.R.S. § 13-4032; see also Ariz. R.P. Special Actions 1, 17B A.R.S. Moreover, the question presented in this special action is one of first impression as there is no caselaw in Arizona interpreting the allocation of the burden of proof under § 13-3101(A)(6)(b). Because future prosecutions under the statute will likely be affected, the matter is of statewide importance. See State v. Winkler, 176 Ariz. 212, 859 P.2d 1345 (App.1993)

(granting special action relief in the face of trial court's impending use of jury instruction in criminal case erroneously assigning to state burden of proving element not found in criminal statute). Accordingly, we accept jurisdiction. Additionally, we review the interpretation of a statute de novo. State v. Tamplin, 195 Ariz. 246, 986 P.2d 914 (App.1999).

¶ 4 The respondent judge's ruling that the nonrestoration of the right to carry a firearm is an element of the crime of prohibited possessor appears to have been based on her reading of the plain language of § 13-3101(A)(6)(b). Such a reading is certainly justifiable; we acknowledge that the use of "and" in a criminal statute typically introduces an element of the crime, which the state must, of course, prove. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)

; State v. Farley, 199 Ariz. 542, 19 P.3d 1258 (App.2001) (Due Process Clauses of the Fifth and Fourteenth Amendments require a state to prove beyond a reasonable doubt every fact necessary to establish criminal conduct). Indeed, we recently read §§ 13-3102(A)(4) and 13-3101(A)(6)(b) the same way, albeit in a case in which we did not squarely address the issue raised here. State v. Lopez, 209 Ariz. 58, ¶ 8, 97 P.3d 883, 885 (App.2004) ("Lopez attempted to remove from the jury's consideration elements of the charged offense — that he has a prior felony conviction and that his civil right to possess or carry a firearm has not been restored."). And in State v. Hudson, 152 Ariz. 121, 730 P.2d 830 (1986), our supreme court implicitly regarded nonrestoration of the right to be an element in addressing the propriety of the trial court's denial of the defendant's motion for judgment of acquittal pursuant to Rule 20, Ariz. R.Crim. P., 17 A.R.S., in a prohibited possessor case. The court stated: "The evidence showed that defendant had been convicted of robbery and that defendant's civil rights had not been restored. Therefore, the defendant was a `prohibited possessor.'" Id. at 127, 730 P.2d at 836.

¶ 5 In neither Hudson nor Lopez was the court presented directly with the issue before us. Accordingly, the statements in those cases suggesting the nonrestoration of the right to carry a firearm is an element the state must prove in a prohibited possessor prosecution were not holdings but dicta, and are therefore not binding authority. See Creach v. Angulo, 186 Ariz. 548, 552, 925 P.2d 689, 693 (App.1996)

(Division One of this court, declining to follow dictum in Arizona Supreme Court opinion, stating: "Dictum is not binding precedent because, inter alia, it is without the force of adjudication and the court may not have been fully advised on the question").

¶ 6 Although we normally assign plain meaning to the words of a statute, we will not do so when a plain meaning interpretation is at odds with the legislature's intent. State v. Vogel, 207 Ariz. 280, 85 P.3d 497 (App.2004). Having more fully contemplated that intent, we now conclude that a defendant bears the burden of proving his or her right to possess a firearm has been restored in a prosecution under § 13-3101(A)(6)(b).

¶ 7 The state relies on State v. Noel, 3 Ariz.App. 313, 414 P.2d 162 (1966), in which this court addressed the identical issue under a predecessor statute, former A.R.S. § 13-919, which, as reproduced in Noel, provided: "It is unlawful for a person who has been convicted of a crime of violence in any court of the United States, its territories, districts or possessions, or of the several states, to possess a pistol, unless such person has been pardoned for such crime or has by law regained full status as a citizen." 3 Ariz.App. at 314, 414 P.2d at 163 (emphasis deleted). We concluded, with cursory analysis, that the defendant bore the burden of proving he fell within that statute's exception.

¶ 8 Although the two statutes convey essentially the same concept, there is significantly different language in the two. The provision at issue was introduced in former § 13-919 with "unless ..."; § 13-3101(A)(6)(b) uses "and ... not ...." We generally presume that when the legislature amends the language of a statutory provision, it intended that the change have meaning. See State v. Garza Rodriguez, 164 Ariz. 107, 791 P.2d 633 (1990)

. However, the change in and renumbering of Arizona's prohibited possessor statute was part of the comprehensive adoption of the entirely new revised criminal code effective in 1978. 1977 Ariz. Sess. Laws, ch. 94 (repealing former § 13-919 along with the bulk of the former code), § 142 (implementing §§ 13-3101, -3102). When statutes are changed as part of a recodification and the function of the new statute is identical in form to the former provision, it is presumed the legislature meant to continue the same intent, even when the language of the new statute is not identical to the former. See Vielma v. Eureka Co., 218 F.3d 458 (5th Cir.2000); see also 73 Am.Jur.2d Statutes § 224 (2001) ("[I]t is a settled rule of construction that where the entire legislation affecting a particular subject matter has undergone revision and consolidation by codification, the revised statutes will be presumed to bear the same meaning as the original sections, notwithstanding that there is an alteration in phraseology.").

¶ 9 Moreover, although the use of "and" in a criminal statute might normally indicate that an element is to follow, the provision at issue here reads "and whose civil right to possess or carry a gun or firearm has not been restored." § 13-3101(A)(6)(b) (emphasis added). The negative aspect of this provision makes it extremely ill-suited to be an element of the crime; it would place an onerous burden on the state to prove beyond a reasonable doubt that something has not happened, not only in this state but throughout the country. See United States v. Bartelho, 71 F.3d 436, 440 (1st Cir.1995)

(rejecting argument that government bore burden of establishing federal defendant's failure to restore his civil rights in proving prohibited possessor charge and noting that government would otherwise "be required to refute every possibility that criminal defendants have had their prior convictions nullified or their civil rights restored").

¶ 10 The "and ... not" construction introduces a negative condition into the statute that functions the same way "unless" or "except" would: as a statutory exception or proviso. See 82 C.J.S. Statutes §§ 370, 371 (1999) (defining and explaining exception and proviso). Although sometimes classified as a type of affirmative defense, see 2 McCormick on Evidence, § 341 at 431-32 (J. Strong ed., 5th ed.1999), statutory exceptions are conceptually different from justification defenses, such as those codified at A.R.S. §§ 13-401 through 417, in that they do not excuse or justify an actor who engages in the prohibited conduct but, rather, exclude the actor from the class of people for whom the conduct is prohibited. Our finding that the restoration provision of § 13-3101(A)(6)(b) is such an exception is supported by the fact that the provision at issue is contained in § 13-3101(A)(6)(b), the definitions section describing the class of people who are prohibited possessors, not § 13-3102(A)(4), the statute defining the criminal act that constitutes the offense.

¶ 11 Because the restoration provision of § 13-3101(A)(6)(b)...