State v. Seyrafi10/16/2001
REVERSED AND REMANDED
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.").
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.
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. Prior to affirming defendant's convictions, 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.
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).
Section 18-11 of the Scottsdale Revised Code, in pertinent part, reads:
Violations
(a) It shall be unlawful for any owner, lessor, lessee, manager, agent, or other person having lawful control over a building, structure, or parcel of land to cause, allow, permit, facilitate, or aid or abet any violation of any provision of this chapter or fail to perform any act or duty required by this chapter.
(b) The owner of record, as recorded in the county recorder's office, of the property upon which the violation of this chapter exists shall be presumed to be a person having lawful control over a structure or parcel of land. If more than one (1) person shall be recorded as the owner of the property, such persons shall be jointly and severally presumed to be persons having lawful control over a structure or parcel of land. This presumption shall not prevent the enforcement of the provisions of this chapter against any person specified in subsection (a) of this section. (Emphasis added.)
Defendant contends that the emphasized language constitutes a mandatory, and therefore unconstitutional, presumption. We agree.
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).
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 unconst
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