State v. Hannah

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
CAROL HANNAH, Appellant.
No. 1 CA-CR 14-0424
FILED 7-28-2015
Appeal from the Superior Court in Mohave County
No. S8015CR201301355
The Honorable Derek C. Carlisle, Judge Pro Tempore
REVERSED AND REMANDED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jana Zinman, Chris DeRose
Counsel for Appellee
Law Offices of Paul Lenkowsky, Bullhead City
By Paul Lenkowsky, Virginia L. Crews
Counsel for Appellant
OPINION
Judge Kenton D. Jones delivered the opinion of the Court, in which
Presiding Judge Margaret H. Downie and Judge Jon W. Thompson joined.
STATE v. HANNAH
Opinion of the Court
J O N E S, Judge:
¶1 In this appeal, we consider whether, by submitting ballots in
both Arizona and Colorado’s November 2010 elections, Carol Hannah
“[k]nowingly vote[d] more than once at any election” in violation of
Arizona Revised Statutes (A.R.S.) section 16-1016(2).1 Because the State was
required to prove Hannah cast more than one vote in a single election, and
failed to present sufficient evidence to establish this fact, we reverse her
conviction and remand for entry of a judgment of acquittal.
FACTS2 AND PROCEDURAL HISTORY
¶2 In October 2013, a grand jury returned an indictment against
Hannah for one count of illegal voting in violation of A.R.S. § 16-1016(2),
alleging she “voted in the November 2, 2010, General Election in both
Mohave County, Arizona, and Adams County, Colorado.” At trial, the
State presented evidence that on October 18, 2010 Hannah sent a mail-in
ballot to the Adams County Clerk & Recorder in the general election held
in Colorado on November 2, 2010. She then cast a ballot in person at a
polling place in Mohave County, Arizona, in the general election held in
Arizona on November 2, 2010. No single candidate or issue appeared on
both the Colorado and Arizona ballots.
¶3 At the close of the State’s case-in-chief, Hannah moved for
judgment of acquittal under Arizona Rule of Criminal Procedure 20(a). The
trial court denied the motion, and the jury found Hannah guilty as charged.
The court suspended imposition of sentence and placed Hannah on
probation for three years. Hannah timely appealed. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
1 Absent material revisions from the relevant date, we cite a statute’s
current version.
2 We view the facts in the light most favorable to upholding the jury’s
verdict and resolve all reasonable inferences against the defendant. State v.
Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).
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STATE v. HANNAH
Opinion of the Court
DISCUSSION
¶4 On appeal, Hannah challenges the sufficiency of the evidence
to support her conviction.3 We review claims of insufficient evidence to
determine whether “‘a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” State v. Young, 223 Ariz.
447, 450, ¶ 12 (App. 2010) (quoting State v. Montano, 204 Ariz. 413, 423, ¶ 43
(2003)). Here, Hannah was charged under subsection (2) of A.R.S. § 16-
1016, which provides: “A person is guilty of a class 5 felony who . . .
[k]nowingly votes more than once at any election.” The State argues the
words “any election” do not require proof that votes were cast in the same
election or for or against the same candidates. The underlying issue is
therefore one of statutory construction, which we review de novo. State v.
Gomez, 212 Ariz. 55, 56, ¶ 3 (2006) (citing State v. Estrada, 201 Ariz. 247, 250,
¶ 15 (2001)).
¶5 In construing a statute, “our analysis begins and ends with its
plain language if it is unambiguous.” State v. Streck, 221 Ariz. 306, 307, ¶ 7
(App. 2009) (citing Bentley v. Bldg. Our Future, 217 Ariz. 265, 270, ¶ 13 (App.
2007)). The language of A.R.S. § 16-1016(2) unambiguously criminalizes the
act of voting more than once in a single election. See Ariz. State Democratic
Party v. State, 209 Ariz. 103, 111 n.10, ¶ 23 (App. 2004) (“find[ing] no
distinction based on the use of ‘any’ as contrasted with ‘an’” as between the
constitutional phrase “influencing any election,” Ariz. Const. art. 14, § 18,
and the statutory phrase “influencing an election,” A.R.S. § 16-919(A), in
the course of interpreting the statutory prohibition against political
contributions from labor unions), vacated on other grounds, 210 Ariz. 527(2005). But see State v. Ramos, 155 Ariz. 468, 470 (App. 1987) (noting that
whether to treat the word “any” as singular or plural “depends upon the
context and subject matter of the statute”) (citing Black’s Law Dictionary 86
(5th ed. 1979)). The plain language is further supported by the legislative
purpose of A.R.S. § 16-1016: to prevent any voter from having a greater say
in the outcome of an election than any other voter by limiting each qualified
person to one ballot per election. See A.R.S. § 1-211(A) (directing statutes
be construed consistently with the intent of the legislature); Reynolds v. Sims,
377 U.S. 533, 563 (1964) (rejecting as unconstitutional a state election system
that did not give approximate equal weight to each vote cast); Chavez v.
Brewer, 222 Ariz. 309, 318-19, ¶ 29 (App. 2009) (noting elections clause of the
3 Because our conclusion on this issue is dispositive, we do not
address the other issues Hannah raises on appeal. See State v. Smith, 198
Ariz. 568, 570, ¶ 6 (App. 2000).
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STATE v. HANNAH
Opinion of the Court
Arizona Constitution provides “direction to the legislature to enact
appropriate laws to secure the purity of elections and guard against
electoral abuses”) (citing Ariz. Const. art. 7, § 12; Harless v. Lockwood, 85
Ariz. 97, 100-01 (1958); and Ahrens v. Kerby, 44 Ariz. 337, 341 (1934)).
¶6 The State argues the Arizona and Colorado elections held on
November 2, 2010 were part of one election, relying on congressional
regulations that designate a specific day to select candidates for Congress
and the President in a singular, regular election. See 2 U.S.C. § 1 (setting the
day for “the regular election held in any State” to choose Senators); 2 U.S.C.
§ 7 (establishing “the day for the election” of Representatives and Delegates
to Congress); 3 U.S.C. § 1 (setting date for “every election” of President and
Vice President).
¶7 We recognize the elections held on the first Tuesday following
the first Monday of November in every even-numbered year are sometimes
referred to as “national elections” because they, collectively, include the
selection of all the members of the House of Representatives and one-third
of the members of the Senate. However, these state elections are held on
the same day as a matter of administrative and practical convenience in an
attempt “‘to remedy more than one evil arising from the election of
members of Congress occurring at different times in the different States.’”
Foster v. Love, 522 U.S. 67, 73 (1997) (quoting Ex parte Yarbrough, 110 U.S.
651, 661 (1884)). But, within that singular time constraint, each state
conducts a separate election for the selection of its Senators and
Representatives as constitutionally provided. See U.S. Const. art. I, § 4, cl. 1
(reserving to the states the authority to prescribe the time, place, and
manner of holding elections for its Senators and Representatives); United
States v. Classic, 313 U.S. 299, 311 (1941) (stating that under the Elections
Clause, “the states are given, and in fact exercise wide discretion in the
formulation of a system for the choice by the people of representatives in
Congress”).
¶8 Thus, the elections held in Arizona and Colorado on
November 2, 2010, although occurring on the same day, were separate and
discrete elections, held in two different states. While the evidence is
sufficient to permit a finding that Hannah cast a ballot in both Arizona and
Colorado on November 2, 2010, the evidence is insufficient to show Hannah
voted “more than once in any election,” such that her vote received more
weight than that of any other citizen, where there is no evidence that any
candidate appeared on both ballots and 2010 was not a presidential election
year. The evidence is therefore insufficient to support a conviction for
illegal voting in violation of A.R.S. § 16-1016(2), and we reverse the
4
STATE v. HANNAH
Opinion of the Court
conviction. See Ariz. R. Crim. P. 20(a) (“[T]he court shall enter a judgment
of acquittal of one or more offenses charged . . . if there is no substantial
evidence to warrant a conviction.”); State v. Mathers, 165 Ariz. 64, 71 (1990)
(“Where there is a complete absence of probative facts to support a
conviction, we will reverse a trial court’s denial of a Rule 20 motion [for
judgment of acquittal].”) (citing State v. Wiley, 144 Ariz. 525, 539 (1985)).
¶9 Although we reverse Hannah’s conviction, we do not mean
to imply that voting in elections held in two separate states on the same
date is otherwise proper or lawful. Such conduct raises serious questions
regarding whether Hannah was a qualified voter in both Arizona and
Colorado in November 2010. However, the State does not dispute Hannah
was qualified to vote in the Arizona election, and Hannah was not charged
with casting a vote while not qualified to do so. See A.R.S. § 16-1016(1) (“A
person is guilty of a class 5 felony who . . . [n]ot being entitled to vote,
knowingly votes.”). Whether Hannah was qualified to cast a ballot in the
Colorado election is a matter for Colorado to address in the interpretation
and application of its own law. We likewise express no opinion as to
whether Hannah’s conduct constitutes a violation of federal law. See, e.g.,
52 U.S.C. § 10307(e) (prohibiting voting more than once in a federal
election).
CONCLUSION
¶10 For the foregoing reasons, we reverse Hannah’s conviction
and sentence for illegal voting and remand with instructions to the trial
court to enter a judgment of acquittal.
:RT
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