                                                                    FILED BY CLERK
                             IN THE COURT OF APPEALS                   MAY 25 2005
                                 STATE OF ARIZONA
                                                                        COURT OF APPEALS
                                   DIVISION TWO                           DIVISION TWO


THE STATE OF ARIZONA,                         )
                                              )
                                Petitioner,   )
                                              )
                     v.                       )
                                              )      2 CA-SA 2005-0018
HON. VIRGINIA KELLY, Judge of the             )      DEPARTMENT A
Superior Court of the State of Arizona,       )
in and for the County of Pima,                )      OPINION
                                              )
                              Respondent,     )
                                              )
                     and                      )
                                              )
SEYMOUR JAMEEL ABDULLAH,                      )
                                              )
                    Real Party in Interest.   )
                                              )


                           SPECIAL ACTION PROCEEDING

                           Pima County Cause No. CR-20042176

                                  RELIEF GRANTED


Barbara LaWall, Pima County Attorney
 By Taren M. Ellis                                                             Tucson
                                                               Attorneys for Petitioner
Seymour Jameel Abdullah
                                                                               Tucson
                                                                    In Propria Persona


B R A M M E R, Judge.
¶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


       1
           The indictment is not part of the record before us.

                                                2
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


                                              3
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).




                                             4
¶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


                                               5
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,


                                               6
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) functions as an

exception, it is not an element of the offense that the state must prove. “A defendant who

relies upon an exception to a criminal statute made by a proviso or distinct clause has the

burden of establishing and showing that she comes within the exception.” In re Maricopa

County Juvenile Action No. JT9065297, 181 Ariz. 69, 82, 887 P.2d 599, 612 (App. 1994);

see also United States v. Henry, 615 F.2d 1223 (9th Cir. 1980) (same); State v.

Rosthenhausler, 147 Ariz. 486, 711 P.2d 625 (App. 1985) (statutory exception for inoperable

firearms not an element of crime involving deadly weapon; burden to show inoperability on

defendant); State v. Quandt, 17 Ariz. App. 33, 34, 495 P.2d 158, 159 (1972) (in upholding

defendant’s conviction for possession of illegal drugs under former statute, which contained

exceptions for doctors and other medical professionals, court held: “it is the defendant’s

responsibility” to show he fell within the class of excepted people); see also Dag E. Ytreberg,

J.D., Annotation, Burden of Proof as to Lack of License in Criminal Prosecution for

Carrying or Possession of Weapon Without License, 69 A.L.R. 3d 1054, § 3 (1976)

(surveying state statutes defining somewhat analogous crime of carrying weapon without a


                                               7
permit and finding “general rule” is lack of license is not element of crime and defendant

bears the burden of producing evidence he or she has license).

¶12           We also find persuasive opinions from the Kentucky appellate courts, as our

prohibited possessor statutes were derived, in part, from the Kentucky Penal Code. Rudolph

J. Gerber, Criminal Law of Arizona, §§ 13-3101, -3102 (2d ed. 1993); see Cacho v. Superior

Court In and For County of Maricopa, 170 Ariz. 30, 33, 821 P.2d 721, 724 (1991) (“Because

Arizona’s venue statute was adopted from the Texas statute, that state’s decisions are of

particular interest”). In Eary v. Commonwealth, 659 S.W.2d 198, 200 (Ky. 1983), the

Kentucky Supreme Court interpreted the Kentucky prohibited possessor statute, which

provided:

              A person is guilty of possession of a handgun by a convicted
              felon when he possesses, manufactures, or transports a handgun
              when he has been convicted of a felony, as defined by the laws
              of the jurisdiction in which he was convicted, in any state or
              federal court and has not:

              (a) Been granted a full pardon by the governor or by the
              president of the United States; or

              (b) Been granted relief by the United States secretary of the
              treasury pursuant to the Federal Gun Control Act of 1968, as
              amended.

(Emphasis added.) In Eary, the court held that subsection (b) was a “negative” issue and was

not, therefore, an element that the government had to prove. 659 S.W.2d at 200. The court

relied on an earlier opinion by the Kentucky Court of Appeals, Duvall v. Commonwealth, 593

S.W.2d 884, 886 (Ky. App. 1979), which had found that subsection (a) was not an element

of the crime, instead holding it was “a negative issue” and the commonwealth was not

                                             8
required to offer proof that defendant was not within the class of people excluded from the

statute’s operation.    Id.   Notably, the Kentucky courts reached these conclusions

notwithstanding the “and . . . not” phrasing the Kentucky statute shares with ours.

¶13           Having found that the nonrestoration of civil rights is not an element of the

crime the state must prove, but rather an exception with the burden of proving it borne by

Abdullah, we must clarify the nature of that burden. Although the state asks in its petition

for special action that we determine the proper allocation of the burden of proof, the burden

of proof actually consists of two parts: the burden of going forward (also called the burden

of production or the burden of evidence), and the burden of persuasion.

              The burden of persuasion, as its name implies, requires the party
              that bears it to persuade the trier of fact to rule in its favor. The
              burden of going forward, in contrast, requires the party that
              bears it to produce sufficient preliminary evidence before the
              party with the burden of persuasion must proceed with its
              evidence. Thus, failure to meet the burden of going forward
              results in an adverse ruling before presentation of evidence by
              the party with the burden of persuasion.

State v. Hyde, 186 Ariz. 252, 266, 921 P.2d 655, 669 (1996) (citations omitted); see also

2 McCormick on Evidence, § 336. Abdullah certainly bears the burden of going forward.

Maricopa County No. JT9065297; Rosthenhausler.              Thus, if he fails to produce any

admissible evidence that his right to carry firearms has been restored, the state will prevail

on the issue without being required to present any evidence of nonrestoration.

¶14           Federal courts, addressing the same question under the federal prohibited

possessor statutes, have held that the defendant bears the burden of going forward with

evidence of restoration of rights, but the government bears the burden of persuasion of

                                               9
nonrestoration if the defendant produces any such evidence. See Bartelho, 71 F.3d at 440;

United States v. Jackson, 57 F.3d 1012, 1016 (11th Cir. 1995). Those decisions, however,

are based on the fact that the statutory exception for those whose right to carry a weapon has

been restored is analogous to an affirmative defense, Bartelho, 71 F.3d at 440 (“A claim of

restoration of civil rights is in the nature of an affirmative defense.”), and in federal

prosecutions the government bears the burden of persuasion in disproving affirmative

defenses. Id.; Jackson, 57 F.3d 1016. Similarly, in Rosthenhausler, this court opined that,

if the defendant there had met his burden of going forward, the state would have had the

burden of persuasion to disprove the exception. That reasoning was based, in part, on State

v. Berndt, 138 Ariz. 41, 672 P.2d 1311 (1980), which discussed how the burdens of

production and persuasion were formerly allocated with respect to the affirmative defense

of insanity.

¶15            But neither the state nor federal constitutions prohibit assigning the defendant

the burden of persuasion for an affirmative defense. State v. Casey, 205 Ariz. 359, 71 P.3d

351 (2003); see United States v. Alvarez, 755 F.2d 830, 842 n.12 (11th Cir. 1985) (burden

of persuasion on affirmative defenses “may fall on either the government or the defendant,

as determined by statute or court decision”). In 1997, the Arizona legislature assigned the

burden of persuasion for affirmative defenses to the defendant. Section 13-205(A), A.R.S.,

now provides:     “Except as otherwise provided by law, a defendant shall prove any

affirmative defense raised by a preponderance of the evidence, including any justification

defense.” We do not characterize the statutory exception to the prohibited possessor statutes


                                              10
for those whose rights have been restored as a true affirmative defense. But see State v.

Berryman, 178 Ariz. 617, 875 P.2d 850 (App. 1994) (statutory exception for inoperable

weapons deemed affirmative defense). However, we agree the exception functions similarly

to an affirmative defense and see no reason for infusing unnecessary confusion into Arizona

law by announcing an inconsistent burden or standard of proof for exceptions. We therefore

draw guidance from § 13-205(A) and hold Abdullah has the burden of persuading the trier

of fact by a preponderance of the evidence that his civil rights have been restored.

¶16           Finally, we observe that assigning the ultimate burden to the defendant is

neither unreasonable nor unattainable. In the absence of any contrary evidence presented by

the state, if Abdullah meets his burden of going forward with sufficient admissible evidence

to raise the issue of restoration of rights, that evidence will also satisfy his burden of

persuasion and he will necessarily prevail on the issue. In any case in which the defendant

successfully raises the issue of restoration, the state will be obligated to at least meet that

evidence with equivalent evidence of nonrestoration or the defendant will have produced the

preponderance of the evidence.

¶17           We conclude, then, that § 13-3101(A)(6)(b) provides an exception to the

prohibited possessor definition for a person whose right to carry a firearm has been restored.

Abdullah has the burden of producing admissible evidence demonstrating he comes within

that exception. If he does so, and if he then can convince the jury of that fact by a

preponderance of the evidence, he should be acquitted. Accordingly, the respondent judge

erred as a matter of law in finding the nonrestoration of rights to be an element of the crime


                                              11
the state must prove beyond a reasonable doubt at Abdullah’s upcoming trial. An error of

law may constitute an abuse of discretion, ChartOne v. Bernini, 207 Ariz. 162, 83 P.3d 1103

(App. 2004), and it is here an appropriate ground for granting special action relief. Ariz. R.

P. Special Actions 3(c). We therefore accept jurisdiction and grant relief.




                                               J. WILLIAM BRAMMER, JR., Judge

CONCURRING:




JOSEPH W. HOWARD, Presiding Judge




PETER J. ECKERSTROM, Judge




                                             12
