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State v. Bosworth

Supreme Court of South Dakota

July 19, 2017

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ANNETTE MARIE BOSWORTH, Defendant and Appellant.

          ARGUED NOVEMBER 8, 2016

         APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA THE HONORABLE JOHN L. BROWN Judge

          MARTY J. JACKLEY Attorney General PAUL S. SWEDLUND Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          DANA L. HANNA Rapid City, South Dakota Attorney for defendant and appellant.

          KERN, Justice

         [¶1.] In order to get her name placed on the ballot for election to the United States Senate, Annette Bosworth submitted nominating petitions containing voters' signatures to the Secretary of State. On six of the petitions, Bosworth signed a sworn verification that she personally circulated the petitions. An investigation revealed she was not the circulator, and the State charged Bosworth with six counts of perjury and six counts of offering false or forged instruments for filing. A jury convicted Bosworth on all counts, and she appeals. We vacate the convictions for perjury but affirm the remaining convictions.

         BACKGROUND

         [¶2.] In 2014, Bosworth ran for the Republican nomination for a seat in the United States Senate. Bosworth was a physician practicing medicine in Sioux Falls, South Dakota. In order for her name to appear on the ballot, state law required Bosworth to submit nominating petitions containing at least 1, 995 voters' signatures by March 25, 2014, to the Office of the Secretary of State.

         [¶3.] The State Board of Elections is authorized to promulgate rules regarding the procedure for acceptance and verification of petitions and the contents of petition forms. SDCL 12-1-9. A petition is defined as a form that is prescribed by the State Board of Elections, identifies the position the candidate is seeking, and contains the declaration of candidacy and the verification of the circulator. SDCL 12-1-3(8). Pursuant to Administrative Rule of South Dakota (ARSD) 5:02:08:00.03, the circulator's verification must contain the following language: "I, under oath, state that I circulated the above petition, that each signer personally signed this petition in my presence, and that either the signer or I added the printed name, the residence address of the signer, the date of signing, and the county of voter registration."

         [¶4.] Bosworth signed the circulator's verification on six petitions. She did not, however, personally circulate these petitions, and none of the voters who signed the petitions signed in her presence. The voters signed the six petitions in January 2014 while Bosworth was on a medical-aid mission in the Philippines. After her return to the United States, Bosworth signed the petitions and verified them before a notary between January 20, 2014, and March 24, 2014.

         [¶5.] On March 25, 2014, Bosworth's campaign consultant Patrick Davis delivered a number of petitions, including the six petitions bearing Bosworth's verifications as circulator, to the Office of the Secretary of State. Although Bosworth did not personally file the petitions, she directed Davis to do so.

         [¶6.] The Secretary of State conducted a signature-validation process to determine whether each petition had been properly completed. After reviewing the petitions, the Secretary of State certified them as having met the legal requirements for valid petitions. Accordingly, the Secretary counted the signatures on the petitions and placed Bosworth's name on the ballot. Bosworth subsequently lost in the Republican primary.

         [¶7.] Following the election, the Division of Criminal Investigation conducted an investigation into allegations that some of Bosworth's petitions had been filed upon a false oath. On June 17, 2014, the State indicted Bosworth on six counts of perjury and six counts of offering false or forged instruments for filing. Bosworth pleaded not guilty to all charges.

         [¶8.] On May 18, 2015, Bosworth's case proceeded to a jury trial. Bosworth admitted she did not personally circulate the six petitions but denied she committed perjury or filed false or forged instruments with the Secretary of State. Bosworth claimed she misunderstood the instructions for the circulator's verification, mistakenly believing she was verifying that the signers were registered South Dakota Republicans and that their signatures were genuine. Additionally, Bosworth testified that her misconceptions were based on legal advice she received from Joel Arends, the lawyer for her campaign. Arends, however, testified for the prosecution and denied Bosworth's claims, asserting he explicitly told her that she could not sign the circulator's verification for petitions she did not personally circulate.

         [¶9.] Of the six petitions Bosworth verified as the circulator, only one contained nongenuine voters' signatures. This petition contained genuine signatures as well as signatures forged by the leader of a Hutterite religious colony on behalf of several of its members. The leader added these signatures under the mistaken belief that he had authority to do so as the colony's leader. It is undisputed that Bosworth neither told the leader to forge the signatures nor learned of the forgeries until after she was indicted.

         [¶10.] Bosworth moved for a judgment of acquittal on the following grounds: (1) signing a circulator's verification on a nominating petition and submitting it for filing is not done as part of a state or federal proceeding or action under SDCL 22-29-1; (2) a false verification on a nominating petition does not make the petition a false or forged instrument under SDCL 22-11-28.1; and (3) there was no evidence that Bosworth personally offered or filed any of the six petitions in question. The circuit court denied the motion. On May 27, 2015, the jury found Bosworth guilty of six counts of perjury and six counts of offering false or forged instruments for filing. The circuit court sentenced Bosworth to two years imprisonment, which was suspended on the condition that she spend three years on probation and complete 500 hours of community service. Bosworth appeals her convictions, alleging the circuit court erred by denying her motion for judgment of acquittal, and raises the following issues:

1. Whether signing a circulator's verification on a nominating petition and submitting it for filing with the Secretary of State is done in a state or federal proceeding or action under SDCL 22-29-1.
2. Whether submitting a nominating petition with a circulator's verification signed by someone other than the person who circulated the petition is offering a false or forged instrument under SDCL 22-11-28.1.
3. Whether the evidence presented at trial was sufficient to support Bosworth's convictions for offering false or forged instruments for filing.

         STANDARD OF REVIEW

         [¶11.] Statutory interpretation is a question of law, which we review de novo. Upell v. Dewey Cty. Comm'n, 2016 S.D. 42, ¶ 6, 880 N.W.2d 69, 71. The denial of a motion for judgment of acquittal is also a question of law reviewed de novo. State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83. When reviewing whether evidence is sufficient to sustain a conviction, we "consider[] the evidence in a light most favorable to the verdict. A guilty verdict will not be set aside if the [S]tate's evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt. We do not resolve conflicts in the evidence, pass on the credibility of the witnesses, determine the plausibility of an explanation, or weigh the evidence." State v. Janklow, 2005 S.D. 25, ¶ 16, 693 N.W.2d 685, 693.

         DECISION

         1. Whether signing a circulator's verification on a nominating petition and submitting it for filing with the Secretary of State is done in a state or federal proceeding or action under SDCL 22-29-1.

         [¶12.] Bosworth argues that a statement made in the circulator's verification on a nominating petition and submitted to the Secretary of State is not done in a proceeding or action under SDCL 22-29-1. Proceeding and action are not defined in the statute. Bosworth claims the words are terms of art that should be interpreted in line with their established legal meanings. According to Bosworth, proceeding and action involve matters occurring in judicial or quasi-judicial adjudicatory settings. Bosworth argues that other statutes in the South Dakota Code define proceeding and action in a way that is consistent with this approach. Because she did not sign the petitions and submit them to the Secretary of State as part of a judicial or quasi-judicial proceeding, Bosworth submits that interpreting SDCL 22-29-1 to criminalize her conduct defies legislative intent.

         [¶13.] The State argues that the phrase proceeding or action includes more than judicial and quasi-judicial settings, and that Bosworth's narrow interpretation ignores the Legislature's revision to the statute in 2002. The 2002 revision replaced cases with state or federal proceeding or action, which the State claims broadened the scope of the statute. The State submits that a signed, written ...


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