State v. Seyrafi
| Decision Date | 16 December 2001 |
| Docket Number | 1 CA-CR 00-0828 |
| Parties | STATE OF ARIZONA, Appellee, v. SHERWIN SEYRAFI, Appellant. |
| Court | Arizona Court of Appeals |
Appeal from the Superior Court in Maricopa County
The Honorable Michael O. Wilkinson, Judge
REVERSED AND REMANDED
David A. Pennartz, Scottsdale City Attorney
by John L. Belatti, Assistant City Prosecutor
Attorneys for Appellee
Richard D. Coffinger
Attorney for Appellant
¶1 Defendant Sherwin Seyrafi appeals his convictions and sentences for nine misdemeanor violations of various property maintenance provisions in Chapter 18 of the Scottsdale Revised Code ("S.R.C.").1
¶2 After a bench trial, the Scottsdale City Court judge fined defendant $2100, placed him on three years unsupervised probation, and required, as a condition of probation, that defendant keep his properties in compliance with all state, county, and city laws.
¶3 On appeal to the Maricopa County Superior Court, defendant argued, among other things, that S.R.C. § 18-11 is unconstitutional because it contains a "mandatory presumption" that shifts the burden of proof from the state to the defense. 2 Prior to affirming defendant's convictions, 3 the superior court judge specifically rejected this argument:
The Court finds that Scottsdale Revised Code Section 18-11 does not create an improper mandatory presumption. Here, the presumption is permissive rather than mandated and does not relieve the state of proving an essential element of the crime charged.
¶4 Our review on appeal from a municipal court conviction is limited to an examination of the facial validity of the statute in question. State v. Alawy, 198 Ariz. 363, 364, ¶ 3, 9 P.3d 1102, 1103 (App. 2000); A.R.S. § 22-375. Additionally, our review "does not include an examination of whether those provisions were constitutionally applied in [defendant's] case." State v. Trachtman, 190 Ariz. 331, 332-33, 947 P.2d 905, 906-07 (App. 1997)(emphasis added); see also State v. McLamb, 188 Ariz. 1, 4, 932 P.2d 266, 269 (App. 1996).4
¶5 Section 18-11 of the Scottsdale Revised Code, in pertinent part, reads:
(Emphasis added.)
¶6 Defendant contends that the emphasized language constitutes a mandatory, and therefore unconstitutional, presumption. 5 We agree.
¶7 The state always bears the burden of proving every element of a criminal offense; this burden never shifts. See State v. Klausner, 194 Ariz. 169, 171, ¶¶ 9-11, 978 P.2d 654, 656 (App. 1998). Conclusive or irrebuttable presumptions unconstitutionally relieve the state of its burden of proof. Norton v. Superior Court, 171 Ariz. 155, 158, 829 P.2d 345, 348 (App. 1992).
¶8 A statute that shifts the burden of persuasion on an element of the offense to a criminal defendant violates due process. Id.; Sandstrom v. Montana, 442 U.S. 510, 523-24 (1979)(jury instruction stating "the law presumes that a person intends the ordinary consequences of his voluntary acts" held to violate due process); Francis v. Franklin, 471 U.S. 307, 313-14 (1985)(instruction that "acts of a person of sound mind and discretion are presumed to be the product of the person's will" held unconstitutional).
¶9 In comparison, permissive presumptions that the trier of fact may freely disregard are constitutional, if reasonable, because they do not shift the burden of proof or the burden of persuasion. Id. This is so because a permissive presumption is nothing more than an inference. It allows the trier of fact to infer the presumed fact from proof of the basic facts, but places no burden of any kind on the defendant. State v. Spoon, 137 Ariz. 105, 109, 669 P.2d 83, 87 (App. 1983)(instruction stating, "You may determine the defendant intended to do the act if he did it voluntarily" held constitutional because the use of the word "may" was permissive). In Klausner, we held that a presumption in our DUI laws stating that a driver with a blood alcohol level above.10 percent may be presumed to have been driving under the influence was permissive and, therefore, did not shift the burden of proof to the defendant. 194 Ariz. at 170-71, 978 P.2d at 655-56.
¶10 Between the two poles of mandatory irrebuttable presumptions and permissive inferences lie mandatory rebuttable presumptions. These also violate due process if they relieve the state of the burden of persuasion on an element of the offense. Id.; see Francis, 471 U.S. at 314; State v. Mohr, 150 Ariz. 564, 567-69, 724 P.2d 1233, 1236-38 (App. 1986).
¶11 We apply practical, common sense constructions rather than hypertechnical ones that would tend to frustrate legislative intent when we interpret criminal statutes. State v. Cornish, 192 Ariz. 533, 537, 968 P.2d 606, 610 (1998). If a statute's language is clear and unambiguous, courts must give effect to that language and need not employ the rules of statutory construction. State v. Riggs, 189 Ariz. 327, 333, 942 P.2d 1159, 1165 (1997).
¶12 The pertinent language in S.R.C. § 18-11(b) is mandatory because the ordinance's provision leaves no room for rebuttals or inferences in favor of the owner's innocence. It relieves the prosecution of the burden of proving an element of the offense, i.e., that the owner of record is also the person in control of the property and therefore liable for the violations: "The owner of record... shall be presumed to be a person having lawful control...." We now address the state's proposed construction of the word "shall."
¶13 We determine a legislature's intent by reading the statute as a whole and by considering its context, subject matter, historical background, consequences and effects. State v. Garcia, 189 Ariz. 510, 513, 943 P.2d 870, 873 (App. 1997). Such statutory provisions are to be construed in context with related provisions and in light of their place in the statutory scheme. State v. Wilhite, 160 Ariz. 228, 230, 772 P.2d 582, 584 (App. 1989).
¶14 The word "shall" normally indicates a mandatory provision while "may" generally indicates a permissive one. Walter v. Wilkinson, 198 Ariz. 431, 432, 5 7, 10 P.3d 1218, 1219 (App. 2000). The state contends that we should construe "shall" in S.R.C. § 18-11(b) as permissive, and some civil cases have so held. See Arizona Downs v. Ariz. Horsemen's Foundation, 130 Ariz. 550, 55455, 637 P.2d 1053, 1057-58 (1981). However, the clear and unambiguous language used to define terms in S.R.C. § 1-5 does not permit the state's interpretation. Section 1-5 requires:
Thus, the language of S.R.C. § 18-11(b) as defined in the ordinance itself is clear and unambiguous and creates a mandatory presumption that the owner of record is a person having lawful control of the property.
¶15 The state also makes the following argument:
Even assuming, arguendo, that the presumption is mandatory, the Court must next decidewhether it goes to an essential element of the crime charged. Here, it does not. An owner is responsible for violations of Chapter 18 whether or not he has lawful control over the property. Being in "lawful control" of property and being an "owner of record" are alternative means of proving the same element. Clearly, the term "lawful control" does not qualify all of the other responsible parties under the ordinance (lessor, lessee, manager, agent), because such an interpretation would lead to an absurd result making these other parties irrelevant.
¶16 The state contends that the presumption in S.R.C. § 18-11(b) does not refer to an element of the crimes charged, but then contradictorily states that being in lawful control and being the owner of record "are alternative means of proving the same element." Thus, the state seems to concede that this presumption concerns an element of the offense.
¶17 Here, the state and the dissent are essentially asking us to find that any of the parties listed in S.R.C. § 18-11(a), i.e., managers or agents, can be criminally liable for the condition of a property without the state having to prove that the party had "lawful control" of that property. Such a construction would impose strict criminal liability upon any listed person, which would be unacceptable. See Maricopa County Juv. Action, 143 Ariz. 178, 186, 692 P.2d 1027, 1035 (App. 1984) ().
¶18 We presume an ordinance to be valid unless it clearly appears otherwise. State v. Crisp, 175 Ariz. 281, 283, 855 P.2d 795, 797 (App. 1993). In fact, we have a duty to construe a statute so that it will be constitutional, if possible. State v. Preston, 197 Ariz. 461, 464, ¶ 4, 4 P.3d 1004, 1007 (App. 2000) (superseded by statute on other grounds) State v. Farley, 199 Ariz 542, 19 P.3d 1258 (App. 2001).
¶19 However, S.R.C. § 18-11(b) creates a mandatory evidentiary presumption that impermissibly removes the burden of proof from the state and violates due process. See Preston, 197 Ariz. at 464, 4 P.3d at 1007. The dissent asserts that...
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