text:
    Melanie Dawn SORENSEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-18-0228
    Supreme Court of Wyoming.
    July 24, 2019
    Representing Appellant: Office of the State Public Defender: Diane M. Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Professor Lauren McLane, Faculty Director; G. Bryce Hamilton, Student Intern; and Emily Williams, Student Intern, of the Defender Aid Clinic, University of Wyoming, College of Law. Argument by Ms. Williams.
    Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Katherine A. Adams, Senior Assistant Attorney General; Caitlin M. Kurnath, Assistant Attorney General. Argument by Ms. Kurnath.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

      Order Allowing Withdrawal of Counsel entered April 9, 2019.

   GRAY, Justice.

[¶1] A jury found Melanie Sorensen guilty of possession of methamphetamine, a controlled substance (third or subsequent offense). At trial, the district court advised the jury they might want to wear gloves before examining the proffered evidence of the baggie containing the methamphetamine. Ms. Sorensen appeals from the jury's verdict claiming the district court's remarks on the evidence were error per se or in the alternative plain error, and that there was insufficient evidence to support a guilty verdict. We affirm.

ISSUES

I. Did the district court's comments on the evidence constitute either error per se or in the alternative plain error?
II. Was the evidence sufficient to establish the "knowledge" element of the crime beyond a reasonable doubt?

FACTS

[¶2] On October 15, 2017, dispatch sent Deputy Mark Yocum to a residence in Laramie County after receiving a 911 hang-up call. He arrived at the address at about four in the afternoon and found Ms. Sorensen in a dispute with another resident. While at the residence, Deputy Yocum learned Ms. Sorensen had an outstanding arrest warrant from Carbon County and placed her under arrest. During a cursory search for weapons, Deputy Yocum asked Ms. Sorensen about a tassel hanging off her belt line. Ms. Sorensen explained it was part of her belt. Nothing was said about the pants she wore. Deputy Yocum then delivered Ms. Sorensen to the jail's detention staff.

[¶3] Ms. Sorensen had admitted to using marijuana that day. Consequently, Sergeant Jennifer Stephens conducted a strip search before booking. Sergeant Stephens told Ms. Sorensen to disclose possession of any contraband. Although Ms. Sorensen said she had no contraband, she appeared to be looking for something while she removed her clothing. When Sergeant Stephens asked her if she was looking for something, Ms. Sorensen replied she thought she had twenty dollars somewhere.

[¶4] Sergeant Stephens found a small baggie in the front coin pocket of Ms. Sorensen's jeans. Ms. Sorensen immediately claimed neither the jeans nor the baggie were hers. Sergeant Stephens delivered the baggie to Deputy Yocum for further processing, including analysis by the Wyoming State Crime Laboratory (Crime Lab). The Crime Lab report identified the substance in the baggie as methamphetamine.

[¶5] At trial, defense counsel outlined the defendant's theory of the case in the opening statement:

The issue is not whether or not there was methamphetamine and whether or not it was on her person. The issue is about whether or not [Ms. Sorensen] was knowingly in possession of it. As the State already alluded, the baggy [sic] with the methamphetamine was found in the right front coin pocket of a pair of jeans. That little pocket, you can maybe get one or two fingers in when you put fingers in there. ...
Miss Sorensen was living in a house with a whole bunch of people that would come and go. ... [S]he [will] say that those weren't her jeans, that she didn't know that there was meth in the jeans. That's all there is to it.
It is not about whether or not there was drugs, not about whether or not it was on her person. It was about whether or not she knew it was there, whether she knew she had it in her possession when she was booked into the jail. That's it.

[¶6] Deputy Yocum, the State's first witness, detailed the circumstances and events surrounding Ms. Sorensen's arrest, including his observation that the only other female present in the house was smaller than Ms. Sorensen. He testified that after he received the baggie from Sergeant Stephens, he sent it to the Crime Lab. The prosecution had Deputy Yocum review the Crime Lab report and then offered it into evidence. It was received without objection and exhibited to the jury. The prosecution then introduced the baggie.

[¶7] After Deputy Yocum identified the baggie found in Ms. Sorensen's pocket, the prosecution requested a sidebar. The prosecutor asked the judge if there was a problem passing the evidence to the jury in the same manner as the report. The judge stated the jurors may have a problem because they may want gloves to handle the evidence. The judge suggested the prosecutor move for admission and then "just hold it and parade [the baggie] up and down before the jury as a way to properly publish it."

[¶8] The baggie was admitted without objection. Prior to publishing this evidence, the court addressed the jury:

Ladies and gentlemen, I would tell you that I usually don't feel comfortable having jurors actually handle a substance like methamphetamine without any gloves. So you will have an opportunity in this case to inspect that in more detail if you would like during deliberations.
What we will probably do if you wish to do that is have you come into the courtroom and have you put on gloves if you want to do that during your deliberations.

The defense raised no objection to the trial judge's statement.

[¶9] The prosecution also called Douglas Kelly, a forensic latent fingerprint expert, who testified Ms. Sorensen's fingerprints were not found on the baggie. Following Mr. Kelly's testimony and while the jury was out of the courtroom, the trial judge noted the defense did not object to the chain of custody and the contents of the lab reports. Defense counsel responded, "Correct, Your Honor. And prior to starting the case [the prosecutor] and I did discuss the case, that we were not going to challenge chain of custody. We were going to stipulate to it as well as the contents of the report [sic] were going to come in." After this short conference, Sergeant Stephens, the last witness for the prosecution, recounted the events during her search of Ms. Sorensen.

[¶10] The defense called two witnesses. The first testified he was the owner of the house where Ms. Sorensen resided at the time of her arrest. On direct examination, he was asked whose pants Ms. Sorensen "ended up wearing on October 15th." He stated he did not know but he "noticed [the pants] were in the bathroom for maybe five days in a row" prior to October 15. On cross-examination, however, he said he could not remember if he saw Ms. Sorensen that day and did not know if the pants in the bathroom were the pants she was wearing when she was arrested.

[¶11] Ms. Sorensen then took the stand. She testified she had put on a skirt the morning of her arrest because she was going to church. However, before breakfast, a guest in the house went to visit the horses and was kicked in the head. During this same time, Ms. Sorensen received a telephone call informing her that her uncle was in the intensive care unit at the hospital. She said, "[S]o at that point with all of the chaos going on, I just wanted to get my things, put it [sic] in a room that locked, and I was going to then go up to the hospital and be with my family." She explained that after she took a shower, she did not put her skirt back on:

Well, because this girl was screaming through the house, arguing with [another resident]. And she was in [Mr. Andreas']
room. And they're telling her to get out. And I had to get out of the shower and assess the situation. And I figured I should probably have some pants on instead of my skirt. I didn't know exactly what was going to happen. She had kind of threatened me earlier in the day. So I just kind of wanted to be prepared if I needed to have pants on.

Ms. Sorensen stated the pants were not hers and "were kind of big" so she "used the belt that goes to [her] skirt on the pants." She testified she did not know the methamphetamine was in the pocket.

[¶12] The prosecution called Deputy Yocum in rebuttal. The jury was shown a portion of the booking video in which Ms. Sorensen was wearing the pants. Deputy Yocum testified he did not think the pants were ill-fitting and that Ms. Sorensen never said the pants were not hers until after the drugs were found in the pocket.

[¶13] The jury found Ms. Sorensen guilty of possession of methamphetamine and the district court sentenced her to three to five years in prison. She timely appeals.

DISCUSSION

I. Did the district court's comments on the evidence constitute either error per se or in the alternative plain error?

A. Standard of Review

[¶14] In most cases, in the absence of a proper objection at trial, we review a claim of error using the plain error standard. Granzer v. State , 2008 WY 118, ¶ 9, 193 P.3d 266, 269 (Wyo. 2008). Under this standard, Ms. Sorensen "must show a clear and unequivocal rule of law was violated, the violation clearly appears in the record, and it resulted in denial of a substantial right to her material prejudice." Id.

[¶15] Ms. Sorensen contends the trial court's comment regarding the existence of methamphetamine in the baggie was an improper opinion that went to the weight and quality of the evidence. The comment invaded the province of the jury as factfinders and improperly influenced the verdict. She argues this is error per se, requiring a presumption of prejudice under our holdings in Phillips v. State , 597 P.2d 456, 458 (Wyo. 1979), and Sheeley v. State , 991 P.2d 136, 139 (Wyo. 1999).

B. Error Per Se

[¶16] Error per se assumes prejudice to the defendant. In Phillips , we held the prejudicial effect of the trial court's comments denigrating the relevance of the defendant's testimony was not cured by subsequent instruction. "[T]he damage [that has] already [been] done is not capable of being cured." Phillips , 597 P.2d at 459. Twenty years later, in Sheeley , we considered a prosecutor's question prompting testimony about an earlier proceeding presided over by a different judge where that judge warned a witness about perjury. We determined the question not only injected that judge's judicial bias into the current proceedings, but also "required an answer that seemed to address [that] judge's opinion of the credibility of the victim." Sheeley , 991 P.2d at 138. We applied an "error per se" analysis and stated, "[a]ny expression of opinion on the evidence indicating possible bias on the part of the trial judge is prejudicial, as infringing upon the jury's duties." Id . at 139-40. Ms. Sorensen claims the judge's comments in this case, essentially, told the jury that the baggie found on Ms. Sorensen contained methamphetamine-a fact to be resolved by the jury. She contends the district court's comments "indicated a bias in the State's favor" proving the substance was methamphetamine. As a result, she argues the "per se prejudice analysis" from Sheeley should apply.

[¶17] We have retreated from an "error per se" analysis for errors based on judicial and prosecutorial comments in front of the jury. For example, in Large v. State , 2008 WY 22, 177 P.3d 807 (Wyo. 2008), the defendant claimed the prosecutor's questioning at trial improperly elicited an opinion on the defendant's guilt. Previously, we had stated "testimony offering an opinion as to the guilt of the defendant, when elicited by a prosecuting attorney, should be perceived as error per se." Id . ¶ 26, 177 P.3d at 815 (quoting Stephens v. State , 774 P.2d 60, 68 (Wyo. 1989) ). In Large , we recognized "the choice between the plain error standard and the error per se standard depends upon whether the error is a 'structural' error or a 'trial' error." Large , ¶ 23, 177 P.3d at 814. As the United States Supreme Court has explained:

In Chapman v. California , 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), [the United States Supreme Court] "adopted the general rule that a constitutional error does not automatically require reversal of a conviction." Arizona v. Fulminante , 499 U.S. 279, 306, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (citing Chapman , supra ). If the government can show "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained," the Court held, then the error is deemed harmless and the defendant is not entitled to reversal. Id ., at 24, 87 S. Ct. 824, 17 L. Ed. 2d 705.
The Court recognized, however, that some errors should not be deemed harmless beyond a reasonable doubt. Id ., at 23, n. 8, 87 S. Ct. 824, 17 L. Ed. 2d 705. These errors came to be known as structural errors. See Fulminante , 499 U.S. at 309-310, 111 S. Ct. 1246, 113 L. Ed. 2d 302. The purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial. Thus, the defining feature of a structural error is that it "affect[s] the framework within which the trial proceeds," rather than being "simply an error in the trial process itself." Id ., at 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302. For the same reason, a structural error "def[ies] analysis by harmless error standards." Id ., at 309, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (internal quotation marks omitted).

Weaver v. Massachusetts , --- U.S. ----, ----, 137 S. Ct. 1899, 1907-08, 198 L. Ed. 2d 420, 431 (2017). Using this analysis, we concluded prosecutor-elicited opinions of guilt were a trial error. Therefore, we no longer treat such error as error per se. Large , 177 P.3d at 816 (overruling Stephens).

[¶18] Ms. Sorensen contends there are important factual distinctions between cases controlled by Sheeley and those controlled by Large . She argues a trial judge's comment has a greater effect on a juror than the comments of witnesses or prosecutors. See Beaugureau v. State , 2002 WY 160, ¶ 17, 56 P.3d 626, 635 (Wyo. 2002) ("Of course, the violation is even more serious when the province of the jury is invaded by the opinion of a judge."). Thus, she claims a comment by a judge is inherently more prejudicial and should be viewed under a prejudicial per se standard. We disagree.

[¶19] In Ryan v. State , 988 P.2d 46 (Wyo. 1999) (decided shortly before Sheeley ), the defendant claimed the trial court's statements during voir dire were error per se and required reversal. Id . at 61. There, defense counsel attempted to challenge a potential juror for cause because she admitted she had strong feelings about spousal abuse. Id. In response to the challenge for cause, the trial judge said:

Well, [defense counsel], what I've heard her say is that she is not for spousal or domestic abuse. That is a criminal act. I think if you ask all these people, "Do you have strong feelings about murder," they would probably say, "Yes." That does not disqualify them from serving on this jury. I think it's important they be able to separate, perhaps, the two, that Mr. Ryan is here not because he hit his wife, but because he murdered his wife, and whether or not they have strong feelings about domestic violence or hitting their wives, that isn't going to disqualify them from serving on this jury.

Ryan , 988 P.2d at 61. Defense counsel moved for a mistrial. The judge denied the motion and gave a curative instruction upon returning to the courtroom. The judge clarified he should have said, "He's not here because he's charged with hitting his wife, he's here because he's charged with having murdered her." Id. (emphasis added). The judge also told the jury he did not mean to imply the court had any opinion as to guilt or innocence, because that "decision [is] for the jury alone." Id.

[¶20] We recognized:

In a trial before a jury, the trial judge must abstain from expressing or indicating, by word, deed, or otherwise, his personal feelings on the weight or quality of the evidence. Comments or expressions of opinion on the evidence which have the tendency to indicate bias on the trial judge's part are regarded as being an infringement on the jury's duties and are prejudicial to the defendant.

Id. (quoting Harris v. State , 933 P.2d 1114, 1118 (Wyo. 1997) (internal citation omitted)). However, applying a plain error standard of review we concluded: "More than a mere misstatement is necessary to show that the trial judge improperly expressed his opinion on the evidence. Moreover, the curative instruction alleviated any possible prejudice to [the defendant]." Ryan , 988 P.2d at 61.

[¶21] We have not applied an error per se standard of review to the statements of the judge during trial proceedings since Sheeley . In Belden v. State , 2003 WY 89, 73 P.3d 1041 (Wyo. 2003), [the defendant] argued the judge engaged in multiple instances of misconduct during the course of the trial, including improper comments on the evidence. Id . ¶ 11, 73 P.3d at 1051. We concluded:

The test to determine if a judicial comment in the jury's presence constitutes reversible error is whether the remark was such that it was reasonably calculated to benefit the state or to prejudice the defendant's rights. For comments by the trial judge to constitute reversible error the defendant must show that the remarks were prejudicial and that he or she was harmed thereby.

Id . ¶ 9, 73 P.3d at 1050 (citation omitted) (applying plain error standard); see also Fernandez v. State , 2007 WY 198, ¶ 12, 172 P.3d 730, 733 (Wyo. 2007) (applying abuse of discretion standard).

[¶22] In Snow v. State , 2009 WY 117, 216 P.3d 505 (Wyo. 2009), we again applied a plain error standard of review when considering whether the trial court's response to a note from the jury usurped its role as the sole finder of fact. During deliberations, the jury sent a note asking: "[D]oes the stalking charge stem from the violations of the protection orders or from actions of following her [?]" Id . ¶ 22, 216 P.3d at 512. The court responded, "The following: violation of protection order, telephone calls and other incidents-the state alleges, all together amount to the 'course of conduct' that constitutes, if you believe they did occur, the ... charge of stalking." Id . ¶ 23, 216 P.3d at 513. We reversed the verdict because "[t]here [was] a reasonable probability that, without the judge's inappropriate evidentiary guidance, the jury would not have reached the verdict that it did." Id . ¶ 35, 216 P.3d at 517.

[¶23] Finally, in Mersereau v. State , 2012 WY 125, 286 P.3d 97 (Wyo. 2012) (abrogated on other grounds by Rodriguez v. State , 2019 WY 25, 435 P.3d 399 (Wyo. 2019) ), the trial court's efforts to explain to the jury the limitations on evidence they were about to hear ran afoul of the line between the roles of judge and jury. Id . ¶ 34, 286 P.3d at 112. Immediately before a law enforcement agent testified regarding his forensic examination of the defendant's computer, the court gave the jury the following instruction:

During the trial pictures of the alleged victim and his brother were allowed into evidence depicting them without their clothes on. I believe you are about to hear evidence that there were child pornography websites on the defendant's computer. This evidence is being admitted for a limited purpose. If you ultimately find beyond a reasonable doubt that the defendant committed one or more of the charged acts, you may consider the evidence pertaining to the naked photographs or the websites for the limited purpose of considering the defendant's motive, intent, knowledge, or presence or absence of mistake.

Id . ¶ 30, 286 P.3d at 111. There was no objection to the court's instruction, and we reviewed for plain error. Id . ¶ 31, 286 P.3d at 111. We found the court's instruction violated a clear and unequivocal rule of law and was "particularly prejudicial ... considering that the evidence did not, in fact, show that the appellant was visiting child pornography websites on his computer." Id . ¶ 34, 286 P.3d at 112.

[¶24] As these cases illustrate, since Sheeley , we have applied a plain error standard when confronted with a claim of improper judicial comment to the jury without objection at trial. In this case, there is no structural error. No objection was made to the district court's comment, and we apply a plain error standard of review.

C. Plain Error

[¶25] Under plain error, "the appellant must show a clear and unequivocal rule of law was violated, the violation clearly appears in the record, and it resulted in denial of a substantial right to her material prejudice." Granzer , ¶ 9, 193 P.3d at 269. We agree with Ms. Sorensen that the record of the district court's statements is clear. We also agree there is an unequivocal rule of law-"[t]he trial judge is thereby barred from attempting to override or interfere with the juror's independent judgment in a manner contrary to the interests of the accused." Snow , ¶ 31, 216 P.3d at 515 (quoting United States v. Martin Linen Supply Co. , 430 U.S. 564, 573, 97 S. Ct. 1349, 1355, 51 L. Ed. 2d 642 (1977) ). The question here is whether the district court violated this particular rule of law.

[¶26] The district court's comment to the jury pertained to a fact already referenced by both the defense and the prosecution. The defense, in its opening statement, told the jury methamphetamine was found at the jail in the front pocket of the jeans Ms. Sorensen was wearing. According to the defense, the only question was whether Ms. Sorensen knew the methamphetamine was there. Prior to the district court's comments, Deputy Yocum had identified the baggie and testified on the Crime Lab reports stating the baggie contained methamphetamine. The Crime Lab report was admitted without objection. By the time the district court referred to the substance in the baggie as methamphetamine, rather than "alleged" methamphetamine, it was an acknowledged fact which had been submitted to the jury by both parties. The district court's comment did not violate a clear rule of law because no fact was at issue for the jury to decide.

[¶27] However, even if we find the judge's comments were error when made, there is no prejudice here. Ms. Sorensen argues defense counsel's statements in opening argument are irrelevant as there had been no stipulation regarding the nature of the substance in the baggie prior to trial or prior to the district court's remarks that the baggie contained methamphetamine. Therefore, this element of the crime remained a question for the jury to decide. We recognize the argument of counsel is not evidence. See Tanner v. State , 2002 WY 170, ¶ 14, 57 P.3d 1242, 1246 (Wyo. 2002). Here, in addition to defense counsel's opening statement, the defense formally stipulated to the Crime Lab report identifying the contents of the baggie as methamphetamine. This stipulation occurred shortly after the judge recommended the jurors use gloves to inspect the evidence. Moreover, Ms. Sorensen testified a baggie of methamphetamine was found in the pocket of the jeans she was wearing. Any possible prejudice caused by the judge's remark regarding the substance in the baggie was vitiated by Ms. Sorensen's later testimony admitting the baggie found on her person contained methamphetamine. No fact was at issue such that the district court's comments could indicate a bias. The district court's remarks do not constitute plain error which materially prejudiced Ms. Sorensen.

II. Was the evidence sufficient to establish the "knowledge" element of the crime beyond a reasonable doubt?

A. Standard of Review

[¶28] When a defendant raises a claim of insufficiency of the evidence, we review the evidence in the light most favorable to the State to determine whether a reasonable trier of fact may find guilt beyond a reasonable doubt. Schaeffer v. State , 2012 WY 9, ¶ 44, 268 P.3d 1045, 1060 (Wyo. 2012). We accept "as true the State's evidence supporting the verdict" and "do not consider conflicting evidence." Lemley v. State , 2016 WY 65, ¶ 24, 375 P.3d 760, 766 (Wyo. 2016).

"We will not substitute our judgment for that of the jury [and] our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did." Breazeale v. State , 2011 WY 10, ¶ 13, 245 P.3d 834, 839 (Wyo. 2011) (citations and quotation marks omitted).

B. Sufficiency of the Evidence

[¶29] Ms. Sorensen argues the prosecution failed to introduce any evidence that she knew a baggie containing methamphetamine was in the pocket of the pants she was wearing. Because the prosecution failed to "address the possibility that the pants did not belong to a female" or present "evidence of her pants size in relation to the pants on her," the jury could not have inferred she knew the baggie was there or what it contained.

[¶30] To convict Ms. Sorensen for possession of a controlled substance, the prosecution had to prove beyond a reasonable doubt she knowingly possessed methamphetamine. The court instructed the jury that it must find:

1. On or about the 15th day of October 2017,
2. In Laramie County, Wyoming,
3. The Defendant, Melanie Dawn Sorensen,
4. Knowingly possessed a controlled substance - Methamphetamine.

It further instructed the jury:

"Knowingly" ... does not have a technical meaning under the law separate from its ordinary meaning. The ordinary meaning of "knowingly" is: "With awareness, deliberateness, or intention," as distinguished from inadvertently or involuntarily. Applying the ordinary meanings of the word to the language contained in the statute, if you find the defendant acted with awareness, deliberateness, or intention, then you may find she acted knowingly.

Direct evidence of knowledge is not required. The prosecution may rely on a reasonable inference of knowledge drawn entirely from circumstantial evidence. See Lee v. State , 2003 WY 8, ¶ 10, 61 P.3d 1225, 1228 (Wyo. 2003).

[¶31] A reasonable or permissible inference has been described as "a process of reasoning by which a fact or proposition is deduced fairly and logically from other facts proven or admitted." Grimes v. State , 2013 WY 84, ¶ 11, 304 P.3d 972, 975 (Wyo. 2013) (citations and quotation marks omitted). Here, the jury heard testimony that the pants appeared to fit Ms. Sorensen, and the other female residents of the house were not the same size as Ms. Sorensen. When Ms. Sorensen told Deputy Yocum the belt was hers, she said nothing about the pants belonging to someone else. Sergeant Stephens said Ms. Sorensen appeared to be looking for something during the search and did not say the pants were not hers until after the baggie was found. Ms. Sorensen testified she was anxious to get to the hospital to be with her family that morning, but the arrest did not occur until approximately four in the afternoon. The jury saw first-hand how the pants fit in the video of Ms. Sorensen wearing them during the booking process. We believe a rational jury confronted with these facts could reasonably reject Ms. Sorensen's explanation of events and conclude she knew a baggie of methamphetamine was on her person.

CONCLUSION

[¶32] We analyze the allegations that the district court's statements to the jury constitute reversible error under our familiar plain error standard. Here, the district court did not inject bias into the proceedings or interfere with the jury's fact-finding role. Even if the statements were error, Ms. Sorensen has failed to demonstrate material prejudice to a substantial right, necessary under plain error. The evidence was sufficient for the jury to find Ms. Sorensen knew the baggie was in her pocket and that it contained methamphetamine.

[¶33] Affirmed.

      Shortly thereafter, in Granzer , 193 P.3d 266, we considered the court's failure to properly instruct the jury on an element of a crime. Noting our earlier opinions which held this to be a fundamental error, we concluded the error was "not a structural or fundamental error, but rather a trial error" to which "we will not apply an 'error per se' type analysis." Id . ¶ 18, 193 P.3d at 271-72. Applying a plain error standard of review, we determined the defendant was materially prejudiced by the instructional error and was entitled to a new trial. Id . ¶ 18, 193 P.3d at 272.


source: Caselaw Access Project

author: JUSTICE TIMMER, opinion of the Court:

license: Public Domain

text:
    ARIZONA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, et al., Petitioners/Appellants, v. CITY OF PHOENIX, et al., Respondents/Appellees,
    Building a Better Phoenix, a Political Committee, Real Party in Interest/Appellee.
    No. CV-19-0158-PR
    Supreme Court of Arizona, IN DIVISION.
    Filed July 24, 2019
    Roy Herrera, Mark S. Kokanovich, Daniel A. Arellano, Ballard Spahr LLP, Phoenix, Attorneys for Arizona Chapter of the Associated General Contractors of America, et al.
    Kory Langhofer, Thomas Basile, Statecraft PLLC, Phoenix, Attorneys for Building a Better Phoenix
    JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BALES, JUSTICE BOLICK, and JUSTICE GOULD joined.
   JUSTICE TIMMER, opinion of the Court:

¶1 At issue here is whether the "Building a Better Phoenix Act" initiative measure qualifies for placement on the City of Phoenix's August 2019 special election ballot. We must decide whether petition signatures are void pursuant to A.R.S. § 19-118.01(A) because the measure's proponent paid petition circulators by the signature and whether the measure's 100-word description fails to comply with A.R.S. § 19-102(A). We previously issued an order affirming the lower courts' decisions that the initiative measure qualifies for the ballot. We now explain our reasoning.

BACKGROUND

¶2 Light rail in Phoenix is funded from many sources, including rider fares, advertising proceeds, and regional and federal funds. Before 2015, Phoenix imposed a transaction privilege and use tax to further fund the city's transportation network, which included light rail. In 2015, voters passed Proposition 104, which set that tax at 0.7% until 2051 and created a Citizens Transportation Committee to review all tax revenue expenditures. See Phx. City Clerk, August 25, 2015 Sample Ballot: Mayor and Council Election (2015), https://www.phoenix.gov/cityclerksite/Documents/d2sb.pdf. Proposition 104 authorized use of the tax revenues, among other things, to "[e]xpand[ ] light rail ... to serve more Phoenix neighborhoods and employment, education and entertainment centers" as depicted on an included map. Id. Proposition 104 did not authorize use of these funds for light rail maintenance and repair. See id.

¶3 Building a Better Phoenix ("BBP"), a political action committee, sought to amend the Phoenix City Charter to discontinue "light rail extensions" and redirect local sales tax funding for light rail extensions to "infrastructure improvements." To do so, BBP filed an application in September 2018 with the City Clerk of the City of Phoenix, see A.R.S. § 19-143(B), seeking placement of the "Building a Better Phoenix Act" initiative measure (the "Initiative") on the August 2019 special election ballot. Upon receipt of the application, the City Clerk's office assigned the Initiative petition a serial number, see A.R.S. § 19-111(B), which enabled BBP to gather the number of valid signatures required to qualify the Initiative for the ballot. To that end, BBP hired a commercial petition circulation firm, which paid circulators on a per-signature basis.

¶4 Arizona Chapter of the Associated General Contractors of America and David Martin (collectively, "Contractors") filed a complaint pursuant to A.R.S. § 19-122(C) seeking to enjoin placement of the Initiative on the ballot. They allege that petition circulators were paid by the signature in violation of § 19-118.01 and that the 100-word summary circulated with the petition created a significant danger of confusion or unfairness in violation of § 19-102(A). The superior court denied relief, and the court of appeals affirmed.

Ariz. Chapter of the Associated Gen. Contractors of Am. v. City of Phoenix , No. 1 CA-CV 19-0257 EL, 2019 WL 2399703, at *1 ¶ 3, *6 ¶ 25 (Ariz. App. June 6, 2019) (mem. decision).

¶5 On expedited review, we affirmed the superior court's judgment in an order filed June 12, 2019 (again, with an opinion to follow). We have jurisdiction over this matter under article 6, section 5 of the Arizona Constitution.

DISCUSSION

I. Payment by the signature

¶6 Section 19-118.01(A) provides that "[a] person shall not pay or receive money or any other thing of value based on the number of signatures collected on a statewide initiative or referendum petition." Signatures collected in violation of this provision are "void and shall not be counted in determining the legal sufficiency of the petition." Id. Contractors argue BBP violated § 19-118.01(A) by paying petition circulators based on the number of signatures collected. Because voiding the signatures collected in violation of § 19-118.01(A) would leave BBP without enough signatures to qualify the Initiative for the ballot, Contractors assert that the superior court was required to enjoin placement of the Initiative on the ballot.

¶7 Resolution of this argument turns on whether § 19-118.01(A) applies to local measures such as the Initiative. We review issues of statutory interpretation de novo. Molera v. Reagan , 245 Ariz. 291, 294 ¶ 8, 428 P.3d 490, 493 (2018). In doing so, "[w]e interpret statutory language in view of the entire text, considering the context and related statutes on the same subject." Nicaise v. Sundaram , 245 Ariz. 566, 568 ¶ 11, 432 P.3d 925, 927 (2019). Our goal is to effectuate legislative intent. Leach v. Reagan , 245 Ariz. 430, 438 ¶ 33, 430 P.3d 1241, 1249 (2018).

¶8 Section 19-118.01(A) applies on its face only to "statewide" initiative and referendum petitions, and the Initiative is a local measure. Contractors nevertheless argue that § 19-118.01(A) applies by virtue of A.R.S. § 19-141(A). Section 19-141(A) provides that chapter 1 of title 19, which regulates initiatives, referenda, and recalls and includes § 19-118.01(A), "applies to the legislation of cities, towns and counties, except as specifically provided to the contrary in [article 4 of chapter 1 ]." (Emphasis added.) Because nothing in article 4 expressly exempts § 19-118.01(A) from applying to local measures, Contractors argue that § 19-118.01(A) applies here. We are unpersuaded.

¶9 Contractors' interpretation of § 19-141(A) as applying § 19-118.01(A) to local measures would render the word "statewide" in § 19-118.01(A) superfluous. "A cardinal principle of statutory interpretation is to give meaning, if possible, to every word and provision so that no word or provision is rendered superfluous." Nicaise , 245 Ariz. at 568 ¶ 11, 432 P.3d at 927. We are particularly persuaded that the legislature did not intend the word "statewide" to be meaningless as it added § 19-118.01(A) in 2017, along with other statutes addressing statewide measures, presumably knowing that § 19-141(A) existed. See City of Phoenix v. Glenayre Elecs., Inc. , 242 Ariz. 139, 144 ¶ 19, 393 P.3d 919, 924 (2017) ("[W]e presume that the legislature, when it passes a statute, knows the existing laws." (quoting Daou v. Harris , 139 Ariz. 353, 357, 678 P.2d 934, 938 (1984) )). Under Contractors' argument, § 19-141(A) would apply § 19-118.01(A) to local measures whether or not the latter statute included the adjective "statewide," thus rendering that term superfluous.

¶10 Relatedly, interpreting § 19-141(A) as not applying § 19-118.01(A) to local measures harmonizes these statutes. See Reed-Kaliher v. Hoggatt , 237 Ariz. 119, 123 ¶ 17, 347 P.3d 136, 140 (2015) (noting that "when possible, we harmonize apparently conflicting statutes" (internal quotation marks omitted) (quoting Estate of Hernandez v. Ariz. Bd. of Regents , 177 Ariz. 244, 249, 866 P.2d 1330, 1335 (1994) )). Section 19-141(A) would apply chapter 1, title 19 statutes without a "statewide"

restriction to local measures, and § 19-118.01(A), per its language, would apply only to statewide measures.

¶11 Contractors argue that their interpretation of § 19-141(A) as applying "statewide" restricted provisions to local measures is supported by examining § 19-111(D), enacted in 2014. Like § 19-118.01(A), § 19-111(D), which concerns circulation training materials, only applies to "statewide" measures. Significantly, the last sentence in § 19-111(D) provides that "[n]otwithstanding § 19-141, this subsection does not apply to initiative, referendum or recall petitions for cities, towns and counties." Contractors assert that "[i]f use of the word 'statewide' were enough to make a provision not apply locally, the subsequent 'notwithstanding' language in § 19-111(D) would have been unnecessary." They conclude that the legislature's omission of similar language in § 19-118.01(A) means the statute applies to local measures per § 19-141(A). Cf. Ballesteros v. Am. Standard Ins. Co. of Wis. , 226 Ariz. 345, 349 ¶ 15, 248 P.3d 193, 197 (2011) (stating that including a requirement for Spanish-language forms in some statutes but not in A.R.S. § 20-259.01 indicates that the legislature intentionally omitted this requirement).

¶12 The "notwithstanding" sentence in § 19-111(D) could evidence the 2014 legislature's view that § 19-141(A) might otherwise apply, or it may have been included out of caution to remove any doubt about that statute's inapplicability to local measures. Regardless, we are unconvinced that the 2017 legislature's omission of similar language in § 19-118.01(A) evidenced an intent to apply that provision to local measures. The 2017 legislature could have reasonably concluded that § 19-118.01(A) 's express reference to "statewide" initiative and referendum petitions sufficiently precluded application to local measures. Section 19-118.01(A) is thus unlike § 20-259.01, at issue in Ballesteros , which had no language requiring a Spanish-language insurance form. See Ballesteros , 226 Ariz. at 349 ¶ 15, 248 P.3d at 197. Also, the 2017 legislature plainly focused on "statewide" measures when enacting § 19-118.01 by finding that "[s]tatewide initiative measures enact broad and sweeping changes to the laws of this state" and that protecting the integrity of that process "is a significant state interest." See 2017 Ariz. Sess. Laws, ch. 52, § 5 (1st Reg. Sess.).

¶13 We also disagree that § 19-111(D) 's "notwithstanding" language shows that § 19-141(A) applies to "statewide" restricted statutes because the legislature has also taken the opposite position. Specifically, to apply A.R.S. § 19-121.01(A)(1)(h) to local measures, the 2015 legislature did not rely on § 19-141(A) but instead deleted the words "statewide ballot measures only." See 2015 Ariz. Sess. Laws, ch. 285, § 5 (1st Reg. Sess.). If the legislature had viewed § 19-141(A) as applying § 19-121.01(A)(1)(h) to local measures even with the "statewide" language, as Contractors argue, there was no need to delete that language.

¶14 In sum, because § 19-118.01(A) applies only to statewide measures, the superior court correctly refused to apply that provision here.

II. 100-word description

¶15 Section 19-102(A) requires an initiative petition to set forth "a description of no more than one hundred words of the principal provisions of the proposed measure or constitutional amendment." The description need not be impartial nor "detail every provision." Molera , 245 Ariz. at 295 ¶ 13, 428 P.3d at 494 ; Save Our Vote, Opposing C-03-2012 v. Bennett , 231 Ariz. 145, 152 ¶ 27, 291 P.3d 342, 349 (2013). But we will invalidate a petition if the description is "fraudulent or creates a significant danger of confusion or unfairness." Molera , 245 Ariz. at 295 ¶ 13, 428 P.3d at 494 (quoting Save Our Vote , 231 Ariz. at 152 ¶ 26, 291 P.3d at 349 ). In making this determination, we consider the meaning a reasonable person would ascribe to the description. Molera , 245 Ariz. at 297 ¶ 27, 428 P.3d at 496 ("We hold § 19-102(A) requires an objective standard for evaluating the description of the actual provisions rather than crediting the drafters' subjective intent.").

¶16 The 100-word description in the Initiative petition provided:

This initiative measure amends the City Charter to terminate construction of all future light rail extensions and redirect the funds toward infrastructure improvements. Revenues from terminating light rail extensions other than the South Phoenix extension will fund infrastructure improvements throughout the City. Revenues from terminating the South Phoenix light rail extension will fund infrastructure improvements in South Phoenix (defined as South Mountain Village plus the area between Seventh Street, Seventh Avenue, Jefferson Street and the Salt River). A Citizens Transportation Committee will solicit public input, make recommendations to the City Council regarding infrastructure improvements, and review transportation expenditures.

As required by § 19-102(A), the petition also stated that the Initiative sponsor had prepared the description, which "may not include every provision contained in the measure," and advised petition signers of their "right[s] to read or examine the title and text [of the measure] before signing."

¶17 Contractors argue that the 100-word description was misleading in three respects and therefore created a significant danger of both confusion and unfairness. First, Contractors assert that the description's references to "revenues" falsely suggest that terminating light rail extensions would generate income. We disagree. The first sentence speaks of "redirect[ing]" existing funds from future light rail extension projects. Read in context, a reasonable person would know that the "revenues" mentioned in the succeeding sentences refer to the redirected funds.

¶18 Second, Contractors argue that the summary's statement that funds will be redirected from light rail extensions is misleading because only funds controlled by the City of Phoenix can be redirected; regional and federal funding for light rail in Phoenix would purportedly cease if the Initiative passes. We have never required an initiative description to explain all potential effects of a measure. See Save Our Vote , 231 Ariz. at 152 ¶ 27, 291 P.3d at 349 (rejecting argument that a description failed to "completely describe the effects of implementing" the measure because § 19-102(A) "requires only a description of the principal provisions, not a complete description"). The proper forum to argue the consequences of passing the Initiative is in statements of support and opposition, editorials, and the like. See Tilson v. Mofford , 153 Ariz. 468, 473, 737 P.2d 1367, 1372 (1987) ("[T]he proper place to argue about the potential impact of an initiative is in the political arena, in speeches, newspaper articles, advertisements and other forums.").

¶19 Third, Contractors argue that the summary is misleading because it proposes to redirect "light rail extension[ ]" funds to "infrastructure improvements" but fails to reveal that "infrastructure improvements," as defined in the Initiative, excludes repairs to light rail. Consequently, Contractors contend, signers were not informed that passing the Initiative would terminate funding for light rail upkeep as well as expansion.

¶20 Contractors' argument fails because the Initiative does not, in fact, eliminate funding for upkeep of the existing light rail system. The Initiative defines "light rail extensions," as "any and all construction, development, extension or expansion of, or improvement to, light rail transit authorized by Proposition 104." Thus, the light rail funds at issue in the Initiative are only those dedicated to light rail extensions, not upkeep, as authorized by Proposition 104. See supra ¶ 2. Neither Proposition 104 nor the Initiative addresses funding to repair and maintain the existing light rail system. Therefore, the 100-word description is not misleading by stating that light rail extension funds would be redirected if the Initiative passes.

CONCLUSION

¶21 We affirm the superior court's judgment and the court of appeals' decision.

      See Valley Metro Rail, Inc., Valley Metro Rail FY20 Budget 7 (2019), https://www.valleymetro.org/sites/default/files/uploads/event-resources/vmr_fy20_budget_book_adopted.pdf.

      Before the court of appeals, Contractors also argued that the Phoenix City Charter adopts title 19, including § 19-118.01(A), as a local requirement. They do not repeat this argument here, so we do not address it.


author: CATTANI, Judge:

text:
    100 VAL VISTA/MONTGOMERY LLC, et al., Plaintiffs/Appellees, v. PINAL COUNTY, Defendant/Appellant.
    No. 1 CA-TX 18-0003
    Court of Appeals of Arizona, Division 1.
    FILED June 11, 2019
    Mooney, Wright & Moore, PLLC, Mesa, By Paul Moore, Jim L. Wright, Counsel for Plaintiffs/Appellees
    Pinal County Attorney's Office, Florence, By Christopher C. Keller, Cedric I. Hay, Helm, Livesay & Worthington, Ltd, Tempe, By Roberta S. Livesay, Co-Counsel for Defendant/Appellant
    Judge Kent E. Cattani delivered the opinion of the Court, in which Presiding Judge David D. Weinzweig and Judge James P. Beene joined.
   CATTANI, Judge:

¶1 This tax appeal involves approximately 2,000 acres of cattle grazing land in Pinal County (the "Property") owned by 100 Val Vista/Montgomery LLC, et al. (collectively, "Appellees"). The tax court entered judgment requiring Pinal County to classify the Property as agricultural for the 2014 tax year. The County appealed, challenging whether Appellees satisfied the statutory requirements for such classification, including that there be a reasonable expectation of operating profit from the agricultural use of the property. Ariz. Rev. Stat. ("A.R.S.") § 42-12152(A)(2). We hold that a taxpayer's submission of an affidavit as authorized by A.R.S. § 42-12152(C) conclusively establishes the reasonable expectation of operating profit requirement, and because Appellees filed the requisite affidavit, we affirm the tax court's ruling granting Appellees' motion for partial summary judgment as to that issue. We further affirm the tax court's rulings that Appellees satisfied the remaining requirements for agricultural land classification, including the court's findings after trial regarding the Property's functional contribution to an overall ranching operation and the economic feasibility of the ranching operation.

FACTS AND PROCEDURAL BACKGROUND

¶2 During the relevant tax periods, Appellees leased the Property to cattle rancher Charles Bush and his company Rancho Asueno, a ranching operation composed of multiple noncontiguous parcels of land throughout Pinal County. As part of the lease, Appellees allowed Bush and Rancho Asueno to run cattle on the Property. Bush also oversaw the Property, including maintaining fencing, ensuring sufficient forage and water for livestock, moving cattle, and monitoring traffic on the land.

¶3 For the 2014 tax year, the county assessor classified the Property as vacant land, and the State Board of Equalization upheld the classification. Appellees appealed that determination to the tax court, and after a bench trial, the court reversed, ordering the County to classify the Property as agricultural.

DISCUSSION

¶4 Under A.R.S. §§ 42-12151 to -12152, as relevant here, to be classified as agricultural property for tax purposes, land used for grazing must meet four criteria. First, the grazing land must have a minimum carrying capacity of 40 animal units and contain an economically feasible number of animal units. A.R.S. § 42-12151(3). Second, the primary use of the property must be agricultural grazing and the property must have been in active production according to generally accepted range management practices for three out of the five previous years. A.R.S. § 42-12152(A)(1). Third, the property must have a reasonable expectation of operating profit from its agricultural use. A.R.S. § 42-12152(A)(2). And fourth, property consisting of noncontiguous parcels must be managed and operated on a unitary basis, with each parcel making a functional contribution to the agricultural use of the property. A.R.S. § 42-12152(A)(3).

I. Reasonable Expectation of Operating Profit.

¶5 Before trial, the tax court granted Appellees' motion for partial summary judgment regarding the third requirement (reasonable expectation of operating profit) after Appellees filed an affidavit attesting that the Property was "actively producing with an expectation of profit." The County challenges that ruling. We review the grant of a motion for partial summary judgment de novo, see Cramer v. Starr , 240 Ariz. 4, 7, ¶ 8, 375 P.3d 69, 72 (2016), viewing the evidence in the light most favorable to the County, the non-moving party. See Rasor v. Nw. Hosp., LLC , 243 Ariz. 160, 163, ¶ 11, 403 P.3d 572, 575 (2017).

¶6 In 2012, the Legislature added subsection (C) to § 42-12152 to provide that the reasonable expectation of profit requirement "shall be satisfied if the owner files with the assessor an affidavit of agricultural use, signed by the owner attesting that all information in the affidavit is true and the property is actively producing with an expectation of profit." (Emphasis added); see 2012 Ariz. Sess. Laws, ch. 182, § 1 (50th Leg., 2d Reg. Sess.).

¶7 Here, Appellees filed an affidavit of agricultural use that was signed by the owner, Larry Yount, attesting that the Property was actively producing with an expectation of profit. The County acknowledges that Appellees complied with the statutory criteria of § 42-12152(C) by filing the signed affidavit, but asserts that accepting such an affidavit at face value violates other rules of statutory construction, such as the absurdity doctrine or in pari materia ; allows the tax court to consider evidence that fails to satisfy the requirements of Arizona Rule of Evidence 602 and Arizona Rule of Civil Procedure 56(e) ; impermissibly binds the judicial branch; and inequitably allows some landowners to gain an unfair tax advantage. But these arguments are unavailing in the face of clear and mandatory statutory language stating that the reasonable expectation of operating profit requirement "shall be satisfied" if the owner signs and submits the appropriate affidavit. See A.R.S. § 42-12152(A)(2), (C). Because Appellees filed the proper affidavit, and because the statutory language is clear, "we apply the plain meaning [of the statute] and our inquiry ends." Butler Law Firm, PLC v. Higgins , 243 Ariz. 456, 459, ¶ 7, 410 P.3d 1223, 1226 (2018) (quoting State v. Burbey , 243 Ariz. 145, 147, ¶ 7, 403 P.3d 145, 147 (2017) ).

¶8 Moreover, there is no inherent absurdity or inequity in the Legislature creating conditions for obtaining favorable tax treatment, while also dictating a method for complying with those conditions. The Legislature is tasked with determining the methods and procedures for taxation, see Ariz. Const. art. 9, § 11, and based on that authority, the Legislature could have chosen to completely remove the requirement that agricultural property have a reasonable expectation of profit or, as it did here, provide a simple mechanism for satisfying that criterion.

¶9 We note that other statutory provisions provide for recoupment and penalties from taxpayers who provide false information in an affidavit. See A.R.S. § 42-12157 ("If an owner of property or the owner's agent intentionally provides false information on an application form, ... [t]he property shall be reclassified immediately as being used for a nonagricultural use[,] ... [t]he owner is liable for the additional taxes[,] ... [and t]he owner shall also pay a penalty ...."). Thus, if the County is concerned that a taxpayer has filed a fraudulent affidavit, the County can take remedial action. But in classifying property for tax purposes, the County cannot ignore the directive of A.R.S. § 42-12152(C) that the affidavit satisfies the reasonable expectation of operating profit requirement.

¶10 The County further argues that Appellees' affidavit was incomplete because it did not list the Property's carrying capacity. But § 42-12152(C) does not require that the affidavit include information on carrying capacity. It only requires information regarding an expectation of operating profit, and here, the affidavit contained that information.

¶11 The County also asserts that the affidavit should not have been considered because it was created in 2015, which was after the valuation date (January 1, 2013) for the tax year at issue. The County relies primarily on State Tax Commission v. United Verde Extension Mining Co ., 39 Ariz. 136, 4 P.2d 395 (1931), and SMP II Limited Partnership v. Arizona Department of Revenue , 188 Ariz. 320, 935 P.2d 898 (App. 1996), for the proposition than any post-valuation-date evidence cannot be considered by the tax court. But neither of those cases supports the County's position.

¶12 In United Verde , the Arizona Supreme Court held that "the trial court is limited in determining the true value [of the property] to evidence which was in existence at the time the assessment was made." 39 Ariz. at 141, 4 P.2d 395. The court further noted, however, that the court was not limited to information actually known by the assessing body at the time of assessment but only to existing information that the assessing body could have used if it had knowledge of the information. Id. at 141-42, 4 P.2d 395. In SMP II , this court applied that principle to determine that the tax court erred by adopting a valuation that relied on post-valuation-date expense and income data. 188 Ariz. at 322, 324-25, 935 P.2d at 900, 902-03.

¶13 In the instant case, the affidavit was created in 2015 and thus was not in existence as of the January 1, 2013 valuation date. But the affidavit was based on information that existed on that date, namely, the Property owner's expectations at that time for the relevant tax year. Accordingly, the tax court properly considered it, see United Verde , 39 Ariz. at 141-42, 4 P.2d 395, and we therefore affirm the tax court's partial summary judgment ruling.

II. Functional Contribution.

¶14 The County contends that the tax court improperly found that the Property functionally contributed to the agricultural use of an overall ranching operation, as required under A.R.S. § 42-12152. We review de novo issues of statutory interpretation, Premier Physicians Grp., PLLC v. Navarro , 240 Ariz. 193, 194, ¶ 6, 377 P.3d 988, 989 (2016), but defer to the tax court's factual findings if the record supports them. Eurofresh, Inc. v. Graham County , 218 Ariz. 382, 385, ¶ 14, 187 P.3d 530, 533 (App. 2007).

¶15 Under § 42-12152(A)(3), property consisting of noncontiguous parcels must be managed and operated on a unitary basis, with each parcel making a functional contribution to the agricultural use of the property. Both parties agree that Rancho Asueno is composed of noncontiguous parcels, including the Property, and that to obtain agricultural classification, the Property must make a functional contribution to the agricultural use of Rancho Asueno.

¶16 The statute does not define functional contribution, but the Department of Revenue has exercised its statutory authority to provide standard classification methods for agricultural property, see A.R.S. § 42-11054(A)(2), and we look to the Department's Agricultural Property Manual (2012) ("Manual") for definitions of the statutory terms at issue. See Cent. Citrus Co. v. Ariz. Dep't of Revenue , 157 Ariz. 562, 565, 760 P.2d 562, 565 (App. 1988). The Manual defines functional contribution as a "positive economic benefit derived from the agricultural use of an individual parcel of land that is incorporated into an agricultural operation." Manual at 1.8. A parcel can make a functional contribution to the agricultural use of the property through "common management, combined production, or by simply facilitating the movement of ... agricultural commodities from one parcel to another within the operation." Id.

¶17 The County contends that the Property does not make a functional contribution to the agricultural use of Rancho Asueno because Bush last ran Rancho Asueno's cattle on the Property in 2008, and from 2009 to 2012, only sublessees' cattle have grazed on the Property. Thus, the County argues that Rancho Asueno's agricultural use of the Property is speculative.

¶18 But Bush testified that subleasing the Property contributed to Rancho Asueno's overall ranching operation by ensuring that he could move the company's cattle there if rainfall and forage were scarce on other parcels. Furthermore, the test for functional contribution is not limited to use by the property owner; it focuses on whether the agricultural use of the land provides a positive economic benefit. See A.R.S. § 42-12152(A)(3) ; Manual at 1.8. And the testimony at trial was that sublessees grazed cattle on the Property and that Rancho Asueno benefitted from the subleases.

¶19 Relying on Krausz ex rel. KGC Trust I v. Maricopa County , 200 Ariz. 479, 28 P.3d 335 (App. 2001), the County further contends that subleasing is a commercial, rather than an agricultural, use of the property. In Krausz , the taxpayers leased their building to the government and challenged a subsequent classification of their property as commercial. Id. at 480, ¶¶ 1-3, 28 P.3d at 336. The court affirmed, reasoning that the owner's commercial use (leasing the building for profit) controlled classification precisely because the tenant's governmental use did not fall into any specific classification category. Id. at 481-83, ¶¶ 11, 17, 28 P.3d at 337-39. The court specifically distinguished, however, a case in which a tenant's agricultural use of leased property (which fell within the specifically defined "used for agricultural purposes" classification category) controlled over an owner's generalized commercial use. Id. at 482, ¶¶ 12-13, 28 P.3d at 338.

¶20 Because the use of the Property was agricultural, notwithstanding any subleases, and because the agricultural use provided economic benefit to Rancho Asueno, the tax court did not err by finding that Appellees satisfied the functional contribution requirement under § 42-12152(A)(3).

III. Carrying Capacity.

¶21 The County next argues that the tax court improperly calculated the Property's carrying capacity. We need not decide this issue, however, because of our conclusion that Appellees satisfied the requirements of functional contribution to Rancho Asueno's overall ranching operation under A.R.S. § 41-12152(A)(3). The County agrees that Rancho Asueno's overall carrying capacity was more than 40 animal units, which is the baseline requirement under A.R.S. § 42-12151(3), so the precise carrying capacity for the Property is not significant.

IV. Active Production and Generally Accepted Agricultural Practices.

¶22 The County asserts that the tax court erred by finding that the Property was in active production. We review the tax court's factual findings for clear error. Rigel Corp. v. State , 225 Ariz. 65, 67, ¶ 11, 234 P.3d 633, 635 (App. 2010).

¶23 Under A.R.S. § 42-12152(A)(1), agricultural property must have been in active production under generally accepted agricultural practices for three out of the five previous years. Active production is the "exhibition of physical preparation activities and ongoing labor practices which will yield an agricultural ... commodity." Manual at 1.3. Generally accepted agricultural practices are "[t]hose activities and practices that are used in an agricultural operation which are widely accepted and that can be supported by experts in particular agricultural disciplines." Manual at 1.8. Grazing land qualifies as being "in active production" even if it has been inactive due to: (1) an act of God (but this can only be claimed for one year) or (2) "reduced carrying capacity or generally accepted range management practices." A.R.S. § 42-12152(A)(1)(a), (d).

¶24 Here, given that the tax year at issue had a January 1, 2013 valuation date, the Property must have been in active production or permissibly inactive for three out of the five years from 2008 through 2012. And the evidence supported the tax court's finding that the Property met that requirement. Bush testified that he ran his own cattle on the Property in 2008 and that sublessees ran cattle on the Property in 2011 and 2012. And the County does not dispute that in 2009 and 2010 the Property was inactive due to drought, which both parties agree qualifies as an act of God under A.R.S. § 42-12152(A)(1)(a). See also Manual at 1.3-1.4. Thus, the Property was in active production (active cattle grazing) or permissibly inactive for the requisite amount of time.

¶25 Relatedly, the County argues that the tax court erred by allowing Bush to testify as to "generally accepted agricultural practices" under A.R.S. § 42-12152(A)(1) without being disclosed as an expert witness. But the statute does not require expert testimony, and the Manual contemplates but does not require the use of experts. See Manual at 1.8. Consequently, the tax court properly allowed Bush, who has extensive experience in ranching, to testify about widely accepted cattle grazing practices.

V. Economic Feasibility.

¶26 Finally, the County asserts that the tax court erred by finding that the Property contained an economically feasible number of animal units. See A.R.S. § 42-12151(3). We review this finding for clear error. See Rigel Corp. , 225 Ariz. at 67, ¶ 11, 234 P.3d at 635.

¶27 The County contends that the tax court improperly ignored its expert, who opined that the Property was not economically feasible for cattle grazing. But the tax court determines the weight to be accorded to expert testimony. Magna Inv. & Dev. Corp. v. Pima County , 128 Ariz. 291, 294, 625 P.2d 354, 357 (App. 1981). And because the County's expert had not visited the Property in several years and had considered the Property in isolation, rather than as a part of Rancho Asueno's larger ranching operation, the tax court had an adequate reason to discount the expert's opinion.

¶28 Furthermore, Bush testified as to economic feasibility, stating that his goal was always to make money and that he generated income from Rancho Asueno and the Property. He also testified that the Property allowed Rancho Asueno to be sustainable in the long term because it diversified his grazing land. Thus, the record supports the tax court's finding as to economic feasibility.

CONCLUSION

¶29 For the foregoing reasons, we affirm. Appellees request attorney's fees on appeal under A.R.S. § 12-348(B). As Appellees have prevailed on appeal, we award them their costs and reasonable attorney's fees incurred on appeal upon compliance with ARCAP 21.

      Reasonable expectation of operating profit under A.R.S. § 42-12152(A)(2) is a distinct statutory requirement from economic feasibility under A.R.S. § 42-12151(3), although the concepts are at times conflated. See Ariz. Dep't of Revenue, Agricultural Property Manual 2.2-2.3 (2012).

      The Legislature modified this subsection prospectively in 2019 to provide that the reasonable expectation of operating profit requirement "is" rather than "shall be" satisfied by the affidavit. 2019 Ariz. Sess. Laws, ch. 49, § 1 (54th Leg., 1st Reg. Sess.). Because the prior version applies to this case, we do not address the effect, if any, of this statutory change.

      The County also argues that the tax court's decision to classify subleasing as agricultural, and not commercial, activity conflicts with SWVP-GTIS MR, LLC v. Pinal County , No. 1 CA-TX 16-0017, 2018 WL 3853598 (Ariz. App. Aug. 14, 2018). But that memorandum decision does not have precedential value, see Ariz. R. Sup. Ct. 111(c)(1), and its holding-reversing the tax court's ruling precluding the property owner from presenting evidence at trial based on an alleged disclosure violation-does not address the question at issue here. SWVP , 2018 WL 3853598, at *4-5, ¶¶ 18-26.