STATE v. JONES (2009)

OPINION

¶ 1 Russell L. Jones was indicted on nine counts of violating Arizona Revised Statutes (“A.R.S.”) section 39-161 (2001) in connection with nomination petitions filed in support of his campaign for re-election to the state Senate in 2006. The theory underlying the indictment was that Jones falsely verified that signatures on the petitions were made in his presence. The superior court granted his motion to dismiss the charges, and the State appeals. We conclude an instrument that contains an untrue statement falls within A.R.S. § 39-161 only if the instrument is counterfeit, inauthentic or otherwise not genuine. In this case, even if Jones falsely verified the petitions, he did not violate the statute because his verifications did not render the petitions not genuine.

¶ 2 The indictment also charged Jones with a scheme or artifice to defraud in connection with the petitions in violation of A.R.S. § 13-2311 (2001), a crime that requires proof of specific intent to defraud. See State v. Haas, 138 Ariz. 413, 418, 675 P.2d 673, 678 (1983). As discussed infra, note 14, although the superior court dismissed this charge, the State does not argue for its reinstatement. Accordingly, we affirm the judgment of dismissal.

FACTUAL AND PROCEDURAL HISTORY

¶ 3 Jones sought re-election to the Senate from Legislative District 24 in Yuma. Moreno v. Jones, 213 Ariz. 94, 95, ¶ 1, 139 P.3d 612, 613 (2006).¹ Jones filed 29 nomination petitions with the Secretary of State. Id. at 96, ¶ 3, 139 P.3d at 614. He personally verified 19 of the petitions as circulator. Id.

¶ 4 An elector filed a civil complaint challenging Jones's petitions, alleging, inter alia, that because Jones had verified petitions containing signatures he himself had not obtained, he had committed petition forgery. Id. at ¶ 4, 139 P.3d 612; see A.R.S. § 16-351(F) (2006) (disqualifying all petitions of candidate who commits petition forgery).² The superior court upheld the challenge. Moreno, 213 Ariz. at 96, ¶ 8, 139 P.3d at 614. It found that Jones “was not in fact the circulator for certain signatures” on seven petitions circulated at a town hall meeting in Yuma and that two other petitions were disqualified because Jones verified them “when in fact he was in Phoenix when the signatures were obtained in Yuma.” Id. at 96-97, ¶¶ 8, 12, 139 P.3d at 614-15. The court held Jones had committed petition forgery. Id. at 97, ¶ 12, 139 P.3d at 615.

¶ 5 On appeal, our supreme court reversed the superior court. Id. at 102-03, ¶ 46, 139 P.3d 612, 139 P.3d at 620-21. It held that because “Jones improperly signed his name to the petitions ․ as the circulator,” substantial evidence supported the superior court's “finding that Jones had presented to the Secretary of State nomination petitions that he had verified as the circulator knowing that he had not obtained the signatures in his presence as required by A.R.S. § 16-321(D).” Id. at 98, 101, ¶¶ 22, 38, 139 P.3d at 616, 619. The supreme court concluded, however, that Jones's acts did not constitute petition forgery in violation of A.R .S. § 16-341(F). Id. at 101, ¶ 38, 139 P.3d at 619. In so holding, the court remarked that it did “not, of course, express any view whether a candidate's false verification of a nominating petition ․ might merit prosecution under A.R.S. § 13-2002 (forgery), A.R.S. § 13-2702 (perjury), or other criminal provisions.” Id. at 101 n. 3, ¶ 38, 139 P.3d 612, 139 P.2d at 619 n. 3.

¶ 6 Roughly eight months after the supreme court directed entry of judgment in Jones's favor in the civil suit, a Maricopa County grand jury indicted Jones on nine counts of filing a false instrument in violation of A.R.S. § 39-161, Class 6 felonies, and a single count of fraudulent schemes in violation of A.R.S. § 13-2311, a Class 5 felony. The nine false-filing charges arose from the nine petitions at issue in the civil suit. The fraudulent schemes charge alleged Jones knowingly filed the petitions pursuant to a scheme or artifice to defraud.

¶ 7 Jones moved to dismiss the indictment, arguing the statutes under which he was charged were unconstitutionally vague. After hearing argument, the superior court issued a minute entry stating simply, “These matters having been under advisement, IT IS ORDERED granting Defendant's Motion to Dismiss.”

¶ 8 The State filed a timely notice of appeal. We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001) and -4032(A)(2001).

DISCUSSION

A. Legal Principles.

¶ 9 “We review an order granting a motion to dismiss criminal charges for an abuse of discretion or for the application of an incorrect legal interpretation.” State v. Sanchez, 192 Ariz. 454, 456, ¶ 4, 967 P.2d 129, 131 (App.1998) (citation omitted). A motion to dismiss tests an indictment's legal sufficiency. State v. Kerr, 142 Ariz. 426, 431, 690 P.2d 145, 150 (App.1984); see Ariz. R.Crim. P. 16.6(b) (“The court, on motion of the defendant, shall order that a prosecution be dismissed upon finding that the indictment ․ is insufficient as a matter of law.”).

¶ 10 Although a court may not resolve factual defenses in ruling on a motion to dismiss, see Kerr, 142 Ariz. at 431, 690 P.2d at 150, the State does not argue the superior court in this case lacked the power pursuant to Arizona Rule of Criminal Procedure 16.6 to dismiss the charges as a matter of law. As noted, Jones testified at length in the prior civil case about the nomination petitions, including where the signatures were obtained and by whom. In addition to that testimony, the State urges us to accept as true certain statements concerning the petitions Jones made in a later interview conducted by the Maricopa County Sheriff's Office. Jones, who submitted the interview transcript with his motion to dismiss, argues the facts set forth there and in his prior testimony do not constitute a violation of A.R.S. § 39-161. In these unusual circumstances, we will exercise our discretion to address the legal sufficiency of the State's theory that by falsely verifying that the signatures on the petitions were made “in his presence,” Jones violated A.R.S. § 39-161.

B. Section 39-161 Does Not Apply to a Genuine Instrument That Contains a False Statement.

¶ 11 A candidate in a partisan primary election must submit nomination petitions, each of which must be signed by a “circulator” who must “verify that each of the names on the petition was signed in his presence on the date indicated.” A.R.S. §§ 16-321(D) (2006), -315(B) (2006). See Jenkins v. Hale, 218 Ariz. 561, 562, ¶ 7, 190 P.3d 175, 176 (2008). Nomination petitions are presumptively valid if they are “circulated, signed and filed.” Id., ¶ 8, 190 P.3d 175. Nevertheless, a petition is void if it is verified by someone other than one who actually obtained the signatures. Moreno, 213 Ariz. at 96, ¶ 2, 139 P.3d at 614.³

¶ 12 The indictment alleged that by falsely verifying that the nine petitions were signed in his presence pursuant to A.R.S. § 16-321(D) and filing them with the Secretary of State, Jones violated A.R.S. § 39-161.⁴ In the superior court, Jones argued the indictment should be dismissed because A.R.S. § 16-321(D) is unconstitutionally vague as applied to his circumstance. In resolving this matter, we will assume arguendo that the statute is not unconstitutionally vague as applied to Jones's conduct, and that Jones's verifications on the nomination petitions at issue were untrue because not all of the signatures on those petitions were made “in his presence,” as A.R.S. § 16-321(D) requires. See Moreno, 213 Ariz. at 98, ¶ 22, 139 P.3d at 616.⁵

¶ 13 We sought supplemental briefing on whether the false-filing statute, A.R.S. § 39-161, may apply in this case. In relevant part, the statute defines the crime as certifying or offering to be filed “in a public office in this state an instrument [one] knows to be false or forged, which, if genuine, could be filed ․ under any law of this state.”⁶ As presented by the parties' briefs, the issue is whether the statute properly may be applied to an instrument that is genuine but which contains a false statement.⁷

¶ 14 In interpreting a statute, we will give words their ordinary meanings “unless a specific definition is given or the context clearly indicates that a special meaning was intended.” Trustmark Ins. Co. v. Bank One, Ariz., NA, 202 Ariz. 535, 541, ¶ 27, 48 P.3d 485, 491 (App.2002); see A.R.S. § 1-213 (2002). If the words of the statute are unclear, we may look, inter alia, “to prior and contemporaneous statutes in construing the meaning” of the law. State v. Farley, 106 Ariz. 119, 122, 471 P.2d 731, 734 (1970). Further:

If reasonably practical, a statute should be explained in conjunction with other statutes to the end that they may be harmonious and consistent. If the statutes relate to the same subject or have the same general purpose-that is, statutes which are in pari materia-they should be read in connection with, or should be construed together with other related statutes, as though they constituted one law․ This rule of construction applies even where the statutes were enacted at different times, and contain no reference one to the other, and it is immaterial that they are found in different chapters of the revised statutes.

Id.

¶ 15 Although section 39-161 does not define “false” instrument, the statute applies only to a false or forged instrument, “which, if genuine,” could be filed or recorded under law. Because we must attribute some meaning to the drafters' use of the phrase “if genuine,” see Pinal Vista Props., L.L.C. v. Turnbull, 208 Ariz. 188, 190, ¶ 10, 91 P.3d 1031, 1033 (App.2004), we conclude the statute encompasses only instruments that are not genuine because they are “false or forged.”

¶ 16 “Genuine” means “possessing the claimed or attributed character, quality, or origin; not counterfeit; authentic; real.” See Random House Webster's Unabridged Dictionary 798 (Deluxe 2d ed.2001). More specifically, a genuine instrument is “free of forgery or counterfeiting.” Black's Law Dictionary 708 (Deluxe 8th ed.1999). Therefore, a forged instrument may trigger prosecution under the statute because the forgery renders the instrument not genuine. See generally Lewis, 32 Ariz. at 195, 256 P. at 1052 (upholding conviction in case of forged instrument).

¶ 17 By the same token, a “false” instrument within the meaning of the statute is not “genuine” because it is a counterfeit document, a document that is not authentic, or a document that pretends to be something other than what it is. See Random House Webster's Unabridged Dictionary at 798; Black's Law Dictionary at 708. Our supreme court long ago recited this view of the term in a case interpreting a false pretenses statute, in which the court cited with approval authorities that defined “[f]alse instrument” to mean “[c]ounterfeit; not genuine,” and “[f]alse document” to mean “[a] document purporting to be made by a person who did not make the same or a document purporting to be made by some person who did not in fact exist.” Williams v. Territory, 13 Ariz. 27, 32, 108 P. 243, 244-45 (1910).

¶ 18 Although the State argues that section 39-161 must encompass any instrument that contains a false statement, that interpretation is inconsistent with both the authorities cited above and with the statute's purpose, which is to ensure that an instrument presented for filing be genuine, authentic and not counterfeit. See Lewis v. State, 32 Ariz. 182, 188, 256 P. 1048, 1050 (1927) (purpose of A.R.S. § 39-161 is to ensure that if the public finds “an instrument duly filed, registered, or recorded, they may and must act with the presumption that such an instrument is indeed in existence and is genuine, and govern their affairs accordingly”).

¶ 19 Notwithstanding the State's construction, the statute does not address the truth or falsity of any fact stated in an instrument; nor does it refer to “false statement.” By contrast, the legislature has enacted dozens of statutes that expressly impose criminal penalties⁸ or civil penalties or consequences⁹ for the filing of documents that contain false statements. That the legislature expressly imposed consequences for the filing of documents containing false statements in the many statutes cited in the notes but did not specifically address instruments containing false statements in section 39-161 is strong evidence that it did not intend the latter statute to encompass an instrument that contains a false statement that does not cause the instrument to be something other than genuine.

¶ 20 In other statutes, the legislature likewise has distinguished a false instrument from one that contains false information. Without expressing any view on the applicability of A.R.S. § 13-2002(A)(3) (2001) to the facts at issue here, we note that in that provision, the legislature specified that one commits forgery by “[o]ffer[ing] or present[ing] ․ a forged instrument or one that contains false information.” (Emphasis added).¹⁰ We find it significant that section 39-161 simply refers to a “false or forged” document, rather than, as in the provision just quoted, a “forged instrument or one that contains false information.” Cf. A.R.S. § 13-2317(B)(8) (Supp.2008) (one may commit money laundering by presenting “a forged instrument, a falsely altered or completed written instrument or a written instrument that contains any materially false personal identifying information”); A.R.S. § 13-2407(A)(1) (2001) (separately addressing, in context of crime of tampering with public record, “mak[ing] or complet[ing] a written instrument, knowing that it has been falsely made” and “mak[ing] a false entry in a written instrument”).

¶ 21 The State does not contend the nomination petitions Jones verified contained forged signatures or that the petitions were not what they appeared to be.¹¹ Instead, the State's theory is that Jones violated A.R.S. § 39-161 simply by verifying that each of the signatures on the petitions had been signed in his presence. The State's argument would render it a felony to certify or offer for filing any instrument to be filed or recorded, knowing it contains a false statement, without regard to the materiality of the falsity or the significance of the filing, and in the absence of any intent to defraud and any requirement that the certification be sworn or expressly made subject to the laws of perjury. We of course do not condone any false certification or the filing of any instrument knowing it contains a falsehood. Nonetheless, not only is the State's construction of the statute not supported by the context of the act or other indications of legislative intent, the nearly unlimited breadth of the statute urged by the State gives us great pause.

¶ 22 The State contends that State v. Royer, 150 Ariz. 501, 724 P.2d 587 (App.1986), supports its argument that A.R.S. § 39-161 encompasses an instrument that is genuine but contains a false statement. At issue in Royer was a real estate license application in which the applicant incorrectly stated he had not been charged with a criminal offense. Id. at 502, 724 P.2d at 588. The applicant argued the superior court erred by failing to instruct the jury on mistake or ignorance. Id. at 505, 724 P.2d 587, 724 P.2d at 591. In affirming the conviction, the court was not asked to and did not address the issue presented here, namely, whether a false statement on an instrument to be filed renders the instrument a “false” instrument. See id.¹²

¶ 23 The State also contends that State v. Edgar, 124 Ariz. 472, 605 P.2d 450 (1979), compels the conclusion that section 39-161 applies to an instrument that contains a false statement. We do not understand Edgar to support the State's argument. At issue in that case was a mortgage signed by a minor using a fictitious name. Id. at 473, 605 P.2d at 451. The real estate salesman who presented the mortgage for filing was convicted of violating section 39-161. Id. On appeal, he argued the mortgage was not “false” but only contained false information. Id. at 474, 605 P.2d at 452. The supreme court did not consider the argument because it concluded that the fictitious signature on the mortgage rendered the instrument “false” within the meaning of the statute. Id.

¶ 24 The State also cites a pair of Attorney General Opinions in support of its contention that Jones may be prosecuted under A.R.S. § 39-161 for falsely verifying the nomination petitions. Neither opinion directly addresses the issue before us, however. See Op. Ariz. Att'y. Gen. I99-009 (referral for prosecution of one who falsely swears to the accuracy of a campaign finance report); Op. Ariz. Att'y. Gen. I78-167 (application for security guard registration is an “instrument” within meaning of A.R.S. § 39-161 so that one who certifies such an application that contains a false statement may be liable).¹³

CONCLUSION

¶ 25 In directing the dismissal of the civil petition-forgery case against Jones, the supreme court emphasized that its decision was “not intended to diminish the importance of the integrity of the nomination process.” Moreno, 213 Ariz. at 103, ¶ 47, 139 P.3d at 621. As the court stated in that case, because falsely certifying a petition is a “serious matter,” the legislature may choose to impose other sanctions when a candidate falsely affirms that petition signatures were obtained in his presence. Id. We likewise do not intend this decision to undermine the integrity of the election process. We decide today only that A.R.S. § 39-161 is not violated by the false verification of a nomination petition that otherwise is genuine. Because the State does not contend the nomination petitions at issue were not genuine, but instead prosecuted Jones on the theory that he violated section 39-161 only by falsely verifying petitions that were not signed in his presence, we affirm the superior court's judgment dismissing the indictment.¹⁴

JOHNSEN, Judge.

CONCURRING: MICHAEL J. BROWN and PATRICK IRVINE, Judges.