permissive presumption in Arizona

1983The instruction in the case at bar is clearly distinguishable from those in Sandstrom and Mincey in that it creates merely a permissive inference; i.e., it allows — but does not require — the jury to infer intent from the commission of the act and therefore places no burden upon the defendant. 2 The test for the constitutionality of a permissive inference was outlined in County Court of Ulster Cty. v. Allen, 442 U.S. 140, 157 , 99 S.Ct. 2213, 2225 , 60 L.Ed.2d 777, 792 (1979): Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift

1983The instruction in the case at bar is clearly distinguishable from those in Sandstrom and Mincey in that it creates merely a permissive inference; i.e., it allows — but does not require — the jury to infer intent from the commission of the act and therefore places no burden upon the defendant. 2 The test for the constitutionality of a permissive inference was outlined in County Court of Ulster Cty. v. Allen, 442 U.S. 140, 157 , 99 S.Ct. 2213, 2225 , 60 L.Ed.2d 777, 792 (1979): Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift

1998For an extensive discussion of the difference between mandatory and permissive presumptions see State v. Spoon, 137 Ariz. 105 , 669 P.2d 83 (1983).

1998For an extensive discussion of the difference between mandatory and permissive presumptions see State v. Spoon, 137 Ariz. 105 , 669 P.2d 83 (1983).

2024And while “[m]andatory presumptions represent an impermissible burden shift when they relieve the State of the burden of persuasion on an element of an offense,” id. at 147, ¶ 28 (cleaned up), “[t]he use of a permissive presumption is constitutional if there is a rational connection between the predicate and presumed facts.” State v. Platt, 130 Ariz. 570, 574 (App. 1981). ¶63 Here, the challenged instruction stated that “[i]n determining whether the State has proved the defendant guilty beyond a reasonable doubt, [the jury] may consider any evidence of the defendant’s running away, hiding, or

2024And while “[m]andatory presumptions represent an impermissible burden shift when they relieve the State of the burden of persuasion on an element of an offense,” id. at 147, ¶ 28 (cleaned up), “[t]he use of a permissive presumption is constitutional if there is a rational connection between the predicate and presumed facts.” State v. Platt, 130 Ariz. 570, 574 (App. 1981). ¶63 Here, the challenged instruction stated that “[i]n determining whether the State has proved the defendant guilty beyond a reasonable doubt, [the jury] may consider any evidence of the defendant’s running away, hiding, or

2024It did not instruct the jury that evidence of flight or concealment, without more, could establish guilt, see Platt, 130 Ariz. at 574 (explaining nature of mandatory presumptions), but instead merely informed the jury that it “may consider any evidence” of “running away” in determining guilt.

2020Ariz. Const. art. 15, § 3; Ariz. Corp. Comm’n v. Palm Springs Utility Co., 24 Ariz. App. 124 (1975) (stating that “the regulatory powers of the Commission” under the permissive clause “are not limited to making orders respecting the health and safety, but also include the power to make orders respecting comfort, convenience, adequacy[,] and reasonableness of service.”); see also Pac.

2020Ariz. Const. art. 15, § 3; Ariz. Corp. Comm’n v. Palm Springs Utility Co., 24 Ariz. App. 124 (1975) (stating that “the regulatory powers of the Commission” under the permissive clause “are not limited to making orders respecting the health and safety, but also include the power to make orders respecting comfort, convenience, adequacy[,] and reasonableness of service.”); see also Pac.

2020Trantor v. Fredrikson, 179 Ariz. 299, 301 (1994); Elliott, 165 Ariz. at 134 . ¶16 By contrast, in other situations, a statute or a rule may require a court to make findings even absent the request of a party.

2020See State v. Beadle, 84 Ariz. 217 , 221–22 (1958) (stating the legislature has the police power over “public health, safety[,] or welfare”); Lincoln v. Holt, 215 Ariz. 21 , 28 ¶ 25 (App. 2007) (same).

2015See State v. Steed, 109 Ariz. 137, 139 , 506 P.2d 1031, 1033 (1973) (“The defendant took the stand and admitted an assault upon the victim.

2015See State v. Steed, 109 Ariz. 137, 139 , 506 P.2d 1031, 1033 (1973) (“The defendant took the stand and admitted an assault upon the victim.

2008See Licari, 946 F.2d at 694 (approving four-year retroactivity and explaining that the permissive standard for retroactivity statutes stems from the fact that the amount is not a penalty but a tax); Canisius College v. United States, 799 F.2d 18, 27 (2nd Cir.1986) (holding that four-year retroactivity period for a FICA tax amendment did not violate due process in light of its curative purpose); Tate & Lyle, Inc. v. Comm'r of Internal Revenue, 87 F.3d 99, 107 (3rd Cir.1996) (upholding six-year retroactivity period of a Treasury Regulation requiring the taxpayer to use a cash method of accountin

2008See Licari, 946 F.2d at 694 (approving four-year retroactivity and explaining that the permissive standard for retroactivity statutes stems from the fact that the amount is not a penalty but a tax); Canisius College v. United States, 799 F.2d 18, 27 (2nd Cir.1986) (holding that four-year retroactivity period for a FICA tax amendment did not violate due process in light of its curative purpose); Tate & Lyle, Inc. v. Comm'r of Internal Revenue, 87 F.3d 99, 107 (3rd Cir.1996) (upholding six-year retroactivity period of a Treasury Regulation requiring the taxpayer to use a cash method of accountin

2008See Licari, 946 F.2d at 694 (approving four-year retroactivity and explaining that the permissive standard for retroactivity statutes stems from the fact that the amount is not a penalty but a tax); Canisius College v. United States, 799 F.2d 18, 27 (2nd Cir.1986) (holding that four-year retroactivity period for a FICA tax amendment did not violate due process in light of its curative purpose); Tate & Lyle, Inc. v. Comm'r of Internal Revenue, 87 F.3d 99, 107 (3rd Cir.1996) (upholding six-year retroactivity period of a Treasury Regulation requiring the taxpayer to use a cash method of accountin

2008See Licari, 946 F.2d at 694 (approving four-year retroactivity and explaining that the permissive standard for retroactivity statutes stems from the fact that the amount is not a penalty but a tax); Canisius College v. United States, 799 F.2d 18, 27 (2nd Cir.1986) (holding that four-year retroactivity period for a FICA tax amendment did not violate due process in light of its curative purpose); Tate & Lyle, Inc. v. Comm'r of Internal Revenue, 87 F.3d 99, 107 (3rd Cir.1996) (upholding six-year retroactivity period of a Treasury Regulation requiring the taxpayer to use a cash method of accountin

2008See Licari, 946 F.2d at 694 (approving four-year retroactivity and explaining that the permissive standard for retroactivity statutes stems from the fact that the amount is not a penalty but a tax); Canisius College v. United States, 799 F.2d 18, 27 (2nd Cir.1986) (holding that four-year retroactivity period for a FICA tax amendment did not violate due process in light of its curative purpose); Tate & Lyle, Inc. v. Comm'r of Internal Revenue, 87 F.3d 99, 107 (3rd Cir.1996) (upholding six-year retroactivity period of a Treasury Regulation requiring the taxpayer to use a cash method of accountin

2005Howard, 25 Cal.Rptr.2d 80 , 863 P.2d at 156 (restriction valid if a “reasonable cost against a partner who chooses to compete with his or her former partners”); Pet-tingell, 687 N.E.2d at 1240 (financial penalty valid if “reasonable recognition of a law firm’s loss due to the departure of a partner”). ¶ 17 In the instant case, however, we need not decide which standard applies in Arizona because the subject financial penalty provision is invalid under even the more permissive standard.

2005Howard, 25 Cal.Rptr.2d 80 , 863 P.2d at 156 (restriction valid if a “reasonable cost against a partner who chooses to compete with his or her former partners”); Pet-tingell, 687 N.E.2d at 1240 (financial penalty valid if “reasonable recognition of a law firm’s loss due to the departure of a partner”). ¶ 17 In the instant case, however, we need not decide which standard applies in Arizona because the subject financial penalty provision is invalid under even the more permissive standard.