State v. Bosworth

#27510-vacate in pt and aff in pt-JMK
2017 S.D. 43

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

ANNETTE MARIE BOSWORTH, Defendant and Appellant.

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APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA

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THE HONORABLE JOHN L. BROWN
Judge

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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.

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ARGUED NOVEMBER 8, 2016
OPINION FILED 07/19/17
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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

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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

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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

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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
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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

[¶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 oath presented as

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part of a filing before an administrative agency constitutes a statement made in a

proceeding.

[¶14.] An act of perjury is defined in SDCL 22-29-1 to occur when:

Any person who, having taken an oath to testify, declare,
depose, or certify truly, before any competent tribunal, officer, or
person, in any state or federal proceeding or action in which such
an oath may by law be administered, states, intentionally and
contrary to the oath, any material matter which the person
knows to be false . . . .

(Emphasis added.)

[¶15.] Although neither proceeding nor action is defined in SDCL chapter

22-29, the Legislature has defined the words numerous times throughout the code.

See SDCL 15-1-1(1); SDCL 15-12-20(1); SDCL 15-24-5; SDCL 19-13A-2(7);

SDCL 21-1-15(1); SDCL 37-5B-1; SDCL 47-1A-140(32); SDCL 47-1A-850.

“Whenever the meaning of a word or phrase is defined in any statute such definition

is applicable to the same word or phrase wherever it occurs except where a contrary

intention plainly appears.” SDCL 2-14-4.

[¶16.] The Legislature has consistently defined the word action to indicate a

matter involving an adjudication. Under SDCL 15-1-1(1), “[a]n action is an

ordinary proceeding in a court of justice, by which a party prosecutes another party

for the enforcement, determination, or protection of a right, the redress or

prevention of a wrong, or the punishment of a public offense. Every other remedy is

a special proceeding[.]” (Emphasis added.) Under SDCL 15-12-20(1), the word

action means “any action or special proceeding in the trial court, whether civil or

criminal or quasi-criminal[.]” (Emphasis added.) Under SDCL 21-1-15(1), an action

means “any civil lawsuit or action in contract or tort for damage or indemnity

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brought against a construction professional to assert a claim for damage or the loss

of use of real or personal property caused by a construction defect.” Under

SDCL 37-5B-1, the word action means “any complaint, cross claim, counterclaim,

and third-party complaint in a judicial action or proceeding, and their equivalent in

an administrative action or arbitration[.]” Bosworth’s submission was not done as

part of an adjudication and was therefore not made as part of an action.

[¶17.] The use of the word proceeding throughout the code, however, reveals

more diverse definitions. Under SDCL 15-24-5, prescribing Supreme Court

procedure, the term proceeding “includes all public appellate arguments, hearings,

or other proceedings before the Supreme Court, except those specifically excluded by

the rules.” In the Uniform Mediation Act, the word proceeding is defined in

SDCL 19-13A-2(7) to mean: “(A) a judicial, administrative, arbitral, or other

adjudicative process, including related pre-hearing and post-hearing motions,

conferences, and discovery; or (B) a legislative hearing or similar process.” Under

SDCL 47-1A-140(32), found in the Business Corporation Act, the word proceeding

“includes civil suit and criminal, administrative, and investigatory action[.]” And

under the same Act, in SDCL 47-1A-850, the word proceeding means “any

threatened, pending, or completed action, suit, or proceeding, whether civil,

criminal, administrative, arbitrative, or investigative and whether formal or

informal.” Although the definitions of proceeding vary, at a minimum, they include

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an adjudicatory process or hearing before a tribunal or an investigation taken under

its authority. 1

[¶18.] As there is no evidence that the Legislature intended a contrary

intention or different meaning for proceeding in SDCL 22-29-1, we look to these

statutory definitions for guidance. State v. Sondreal, 459 N.W.2d 435, 439-40

(S.D. 1990). We, however, also consider that the Legislature amended

SDCL 22-29-1 in 2002. 2002 S.D. Sess. Laws ch. 113, § 1. The full title of the

amending legislation was: “An Act to change the definition and venue of perjury

prosecutions and to provide for the verification of certain information on certain

state applications or other documents.” 2002 S.D. Sess. Laws ch. 113 (emphasis

added). As the title suggests, the act consisted of three parts. The Legislature first

changed the definition of perjury by deleting the words of the cases and replacing

them with state or federal proceeding or action. The Legislature also added a new

code section relating to venue. In the third section, the Legislature added a new

code section defining a distinct form of perjury criminalizing the false verification of

information on a petition submitted to the State:

Any person who submits any petition . . . for the purpose of
obtaining benefits or any other privilege from the State of South
Dakota shall verify, under oath, that such petition, application,
or information is true and correct. However, it is sufficient if the
claimant, in lieu of verification under oath, signs a statement
printed or written thereon in the form following: “I declare and
affirm under the penalties of perjury that this claim (petition,
application, information) has been examined by me, and to the
best of my knowledge and belief, is in all things true and

1. At trial, the jury received Instruction 44, which defined proceeding as “[a]ny
act or event that takes place in a progression of a lawsuit, or in the regular
business of a court or other official body.”

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correct.” Any person who signs such statement as provided for in
this section, knowing the statement to be false or untrue, in whole
or in part, shall be guilty of perjury.

2002 S.D. Sess. Laws ch. 113, § 3; see also SDCL 22-29-9.1. 2

[¶19.] Notably, SDCL 22-29-9.1 does not contain a proceeding-or-action

requirement, and to interpret proceeding in SDCL 22-29-1 to include the submission

of a falsely verified petition would render SDCL 22-29-9.1 superfluous. This we will

not do as “[w]e assume that the Legislature intended that no part of its statutory

scheme be rendered mere surplusage.” Pitt-Hart v. Sanford USD Med. Ctr.,

2016 S.D. 33, ¶ 13, 878 N.W.2d 406, 411. We, therefore, conclude that Bosworth’s

submission of a nominating petition to the Secretary of State was not done in a

proceeding within the meaning of the statute.

[¶20.] It is possible that the 2002 amendment broadened the application of

SDCL 22-29-1. 3 But we reject the State’s view that the legislation expanded SDCL

22-29-1 to cover more than adjudicatory processes or hearings before tribunals or

investigations taken under their authority. Signing a nominating petition under a

written oath before submitting it to a state authority is not a statement made in a

proceeding or action under SDCL 22-29-1. Because the State failed to prove an

element of the offense, the circuit court erred in denying Bosworth’s motion for

2. In 2005, the Legislature amended the statute, changing the phrase “shall be”
(guilty of perjury) to “is.”

3. Although we interpret the meaning of the words actions and proceedings, we
do not analyze the scope of the word cases. Without doing so, we cannot
determine that the scope of the words actions or proceedings is broader.

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judgment of acquittal on the perjury charges, and we vacate her convictions for

violating 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.

[¶21.] The State convicted Bosworth of six counts of offering a false or forged

instrument for filing. SDCL 22-11-28.1 provides:

Any person who offers any false or forged instrument, knowing
that the instrument is false or forged, for filing, registering, or
recording in a public office, which instrument, if genuine, could
be filed, registered, or recorded under any law of this state or of
the United States, is guilty of a Class 6 felony.

Bosworth argues that the circuit court erred by denying her motion for judgment of

acquittal because “untrue statements in a voters’ petition do not make the petition a

false instrument if the petition itself is not counterfeit, inauthentic, and devoid of

lawful authority.” 4 In her view, the use of false or forged in the statute suggests

that false should be interpreted similarly to forged pursuant to the canon of

interpretation noscitur a sociis, which means “a word is known by the company it

keeps.” Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S. Ct. 1579, 1582, 6 L.

Ed. 2d 859 (1961). Bosworth contends that the petitions “were in fact what they

appeared to be: petitions signed by voters nominating a candidate for public office.”

Because the falsity at issue involves a false fact stated in each petition, “not in the

4. SDCL chapter 22-11 does not define the word instrument. Bosworth disputes
whether “false statements in a genuine legal document make that document
a false instrument,” not whether a nominating petition is an instrument
under SDCL 22-11-28.1. We therefore assume, without deciding, that it is an
instrument for purposes of this opinion.

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genuineness of the petition[s] [themselves],” Bosworth claims the petitions are not

false instruments.

[¶22.] In response, the State submits that the petitions containing untruthful

verifications are false instruments under SDCL 22-11-28.1. The State relies on

Reaser v. Reaser, 2004 S.D. 116, 688 N.W.2d 429, State v. Hayes, 37 S.D. 530,

159 N.W. 108 (1916), and several other cases to support its position that the

presence of a false statement renders an instrument false. The State also contends

that under ARSD 5:02:08:00.01(1)(b), the petitions at issue were improperly

completed, so they were invalid and not genuine as Bosworth claims. Finally, the

State asserts that “Bosworth’s notion that a document must be literally forged to be

a ‘false instrument’ under SDCL 22-11-28.1” contravenes the statute’s primary

purpose of protecting the integrity of public records.

[¶23.] Bosworth first argues that an instrument is false if it is not genuine

and that it is not genuine if it is forged or counterfeit. Although the definitions of

false and forged suggest some overlap, they are distinct concepts. Because SDCL

22-11-28.1 uses or to cover two types of instruments, those that are false and those

that are forged, the linguistic canon of noscitur a sociis is inapplicable in this case.

“The use of the disjunctive usually indicates alternatives and requires that those

alternatives be treated separately.” 1A Norman Singer & Shambie Singer,

Sutherland Statutes and Statutory Construction § 21:14 (7th ed.), Westlaw

(database updated November 2016). SDCL 22-39-36 defines the crime of forgery:

“Any person who, with intent to defraud, falsely makes, completes, or alters a

written instrument of any kind, or passes any forged instrument of any kind is

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guilty of forgery.” False is defined as “1. Untrue. 2. Deceitful; lying. 3. Not genuine;

inauthentic . . . . 4. Wrong; erroneous.” Black’s Law Dictionary (10th ed. 2014). The

definition of forgery includes falsely, but forgery only covers a certain type of

falsehood: falsity in execution. “Where the ‘falsity lies in the representation of facts,

not in the genuineness of execution,’ it is not forgery.” Gilbert v. United States,

370 U.S. 650, 658, 82 S. Ct. 1399, 1404, 8 L. Ed. 2d 750 (1962) (quoting Marteney v.

United States, 216 F.2d 760, 763-64 (10th Cir. 1954)).

[¶24.] The distinction made by the Supreme Court of the United States in

Gilbert is consistent with our holding in State v. Hayes. In Hayes, the defendant

was a corporate officer of a bank who signed and issued written evidence of $2,000

in debt deposited by a relative, but in reality, the defendant knew only $10 was

deposited. 37 S.D. at 532, 159 N.W. at 109. The State charged Hayes with forgery,

which at the time prohibited bank officers from “willfully sign[ing]. . . any false or

fraudulent bond or other evidence of debt[.]” Id. at 533, 159 N.W. at 109. After a

conviction, the circuit court granted Hayes’s motion in arrest of judgment, but the

State appealed to this Court. Id.

[¶25.] On appeal, Hayes argued that “because the instrument was the

genuine act of respondent[,] it was not a false instrument; that there is a distinction

between a false instrument and one which contains false statements; and that the

statute does not cover the latter case.” Id. at 534, 159 N.W. at 110. We

acknowledged “a distinction between the false making of an instrument and the

making of a false instrument” but held that the statute related “to the making or

issuing of a false or fraudulent instrument.” Id. at 534-35, 159 N.W. at 110.

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Accordingly, we reversed the circuit court’s decision because “the willful issuing by a

bank officer of a certificate of deposit in an amount in excess of the actual deposit

renders the instrument a false evidence of debt within the meaning of [the statute].”

Id. at 535, 159 N.W. at 110. We also held that if someone other than an officer of

the bank had “signed the name of John Hayes [(the relative)] to the certificate of

deposit” and issued the certificate, “he would have been guilty of forgery in the first

degree . . . but . . . not” guilty under this corporation-specific forgery statute. Id.

[¶26.] The takeaways from Hayes are that falsely executing an instrument

with the name of another was forgery and that issuing an instrument containing an

untrue statement of fact was sufficient to render the instrument “false or

fraudulent.” Id. The petitions in this case were not forgeries because Bosworth’s

executions of the circulator’s verifications were genuine––she signed her own name.

The falsity of the petitions stems from Bosworth’s misrepresentations of fact:

contrary to Bosworth’s verifications, voters did not sign the petitions in her

presence. Thus, the petitions contain untrue statements of fact and, accordingly,

are false instruments. 5

5. The concurrence correctly points out that under SDCL 22-11-28.1, “a ‘false
instrument’ must be one that is not ‘genuine.’” Infra ¶ 42. To conclude,
however, that Bosworth’s petitions are false instruments because they “lacked
the qualities of what nominating petitions purport to be or to have” conflates
distinct concepts. Id. An instrument that is not genuine is not necessarily a
false instrument. In SDCL 22-11-28.1, the Legislature determined that
neither false instruments nor forged instruments are genuine. Both types of
instruments, however, have more precise meanings than being nongenuine.
Although the petitions were not what they purported to be, what made them
false instruments is that they each contained an untrue statement of fact.

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[¶27.] Prohibiting the knowing filing of instruments containing false

statements of fact also comports with SDCL 22-11-28.1’s vital purpose of ensuring

that filings with state offices are truthful. 6 The presence of false facts in publicly

filed documents poses serious concerns regarding the integrity of public records and

legal processes. The regulations governing nominating petitions exist to ensure

“the integrity of the circulation process, and in turn, the political process.”

Cunningham v. Schaeflein, 969 N.E.2d 861, 876 (Ill. App. Ct. 2012). Further, SDCL

22-11-28.1’s purpose underscores what its text suggests: that fraud upon the

government may be perpetrated by knowingly filing false instruments as well as

forged instruments, and that both types of documents are nongenuine and not

properly filed with the State.

[¶28.] Additionally, Reaser v. Reaser supports the proposition that an

instrument containing an untrue statement of fact is a false instrument. In that

case, we discussed whether the filing of a stipulation containing a false statement

about a child-support obligation could constitute falsification of evidence in violation

of SDCL 22-11-22, a statute akin to SDCL 22-11-28.1. Reaser, 2004 S.D. 116, ¶ 20,

688 N.W.2d at 435-36. SDCL 22-11-22 provided: “Any person who prepares any

false book, paper, record, instrument in writing, or other matter or thing with intent

to produce it or allow it to be produced as genuine in any trial, proceeding, inquiry,

or investigation authorized by law, is guilty of a Class 6 felony.” (Emphasis

6. SDCL 22-11-28.1 includes the element of scienter. Any violation must be
knowing.

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added.) 7 The stipulation purported to provide for a child-support obligation, but the

parties had privately entered into a separate agreement, which disavowed any such

obligation. Reaser, 2004 S.D. 116, ¶¶ 4-5, 688 N.W.2d at 431. We held that “[a]

reasonable person could conclude that under the facts of this case, the making of the

. . . stipulation was the preparation of a false instrument made with intent to

produce it or allow it to be produced as genuine in a proceeding authorized by law.”

Id. ¶ 20, 688 N.W.2d at 435-36. The stipulation was presumably truthful and

genuine in other respects, but the untrue statement of fact regarding the child-

support obligation was sufficient to render the stipulation a false instrument in

violation of a criminal statute with elements similar to SDCL 22-11-28.1.

[¶29.] Although the State also relies upon State v. Paulson, 2015 S.D. 12,

861 N.W.2d 504, we find the case inapposite. In Paulson, the criminal conduct

involved filing with the circuit court phony orders from an illusory court. See id.

¶¶ 3, 23, 861 N.W.2d at 505, 510. Arguably, the orders might have been false as

well as forged, but we neither defined nor differentiated the two terms. Rather, we

discussed the nature of the orders and simply concluded that, “with the facts taken

in a light most favorable to the verdict, the order was a false instrument, devoid of

7. The crime of falsification of evidence has been transferred from SDCL
22-11-22 to SDCL 22-12A-16. The wording of the statute remains the same.
Notably, SDCL 22-12A-15 defines the crime of offering forged or fraudulent
evidence: “Any person who, in any trial, proceeding, inquiry, or investigation
authorized by law, offers in evidence as genuine, any book, paper, document,
record, or other instrument in writing, knowing that it has been forged or
fraudulently altered, is guilty of a Class 5 felony.” Again, the Legislature has
demonstrated its ability to differentiate between false and forged
instruments by creating different crimes prohibiting the offering of two types
of nongenuine instruments: those that are false and those that are forged.

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authority, yet it mimicked a genuine court order[.]” Id. ¶ 24, 861 N.W.2d at 510.

This statement was not intended as a definition of false instrument. It is worth

noting, however, that we explicitly rejected Paulson’s contention that the order he

submitted “was valid, and therefore not a false instrument[,]” because we

determined the order lacked “any legal support.” Id. ¶ 22, 861 N.W.2d at 510.

[¶30.] Bosworth makes a similar argument as the defendant in Paulson: she

claims an instrument must be “inauthentic and devoid of legal authority” to be a

false instrument under SDCL 22-11-28.1. In support of this assertion, Bosworth

relies on State v. Jones, 218 P.3d 1012 (Ariz. Ct. App. 2009), a decision of the

Arizona Court of Appeals. Like in this case, the defendant in Jones “falsely verified

that signatures on [nominating] petitions were made in his presence,” and he was

prosecuted under a statute nearly identical to SDCL 22-11-28.1. Jones, 218 P.3d at

1013-15. The Jones court held the petitions were not false instruments because

they were not “counterfeit, inauthentic or otherwise not genuine[.]” Id. at 1013.

[¶31.] We are unpersuaded by this reasoning as in our view Bosworth’s

untrue statements of fact rendered each petition a false instrument. Bosworth

signed the circulator’s verifications under oath, representing that she circulated

each petition and that “each signer personally signed this petition in my

presence[.]” Her verifications were untrue statements of fact. Knowing the

instruments were false, she then caused them to be filed with the Secretary of State

in violation of SDCL 22-11-28.1. The circuit court did not err by denying Bosworth’s

motion for judgment of acquittal.

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3. Whether the evidence presented at trial was sufficient to
support Bosworth’s convictions for offering false or forged
instruments for filing.

[¶32.] Bosworth argues that no rational jury could have found her guilty of

violating SDCL 22-11-28.1 “because it was undisputed that she did not offer or file

any of the petitions in question.” Ashley Klapperich, who was working at the front

desk in the Secretary of State’s Office when the petitions were delivered, testified at

trial that Bosworth was not present at that time. Based on this testimony,

Bosworth moved for a judgment of acquittal, but the circuit court denied the motion,

stating, “I think it’s clear that [the petitions] were filed if not directly by her,

certainly on her behalf and by her agents.” Bosworth argues the jury instructions

did not include an instruction on vicarious liability. Instead, the jury instructions

asked the jury to determine whether the “defendant knowingly offered a false or

forged instrument for filing[.]” Because the jury was bound to apply the law they

were given, Bosworth argues they could not find that she offered the petitions for

filing.

[¶33.] In response, the State argues the evidence presented at trial was

sufficient to sustain Bosworth’s convictions under SDCL 22-11-28.1. The State

relies on Bosworth’s admission that as a candidate, she received and read the

written instructions regarding nominating petitions. Other testimony at trial

established that Bosworth was aware that she could not verify petitions she did not

personally circulate. Further, the State emphasizes that “Bosworth admitted that

[Patrick] Davis filed the petitions for her at her direction.”

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[¶34.] From our review of the record, the evidence presented at trial is

sufficient to sustain Bosworth’s convictions under SDCL 22-11-28.1. The petitions

were false instruments (Bosworth improperly signed the circulator’s verifications),

they were presented for filing in a public office (the Office of the Secretary of State),

and they could be filed with the Office of the Secretary of State if they were genuine.

The evidence established that Bosworth knew the instruments were false when she

offered them. Arends, Bosworth’s campaign’s lawyer, testified that he explicitly

warned her to not verify petitions she did not personally circulate. The Secretary of

State also provided Bosworth with written circulating instructions, which explained

that signatures on a petition had to be personally witnessed by the circulator.

Bosworth testified at trial that she was sure she read these instructions.

[¶35.] The remaining issue is whether the evidence supports the jury’s

finding that Bosworth offered the petitions. Although Bosworth did not personally

present the petitions to the Office of the Secretary of State, she caused Patrick

Davis, a campaign consultant, to deliver them. 8 Bosworth’s contention that the jury

8. Bosworth testified at trial, and the following colloquy occurred during
cross-examination by the State:
Q: Now, you asked Patrick Davis to take the petitions to Pierre
for you, correct?
A: Asked? It was part of Patrick’s job. It was part of the
campaign’s duties.
Q: You caused those petitions to be delivered to Pierre instead
of delivering them yourself because you had patients to see,
correct?
A: I saw patients on Tuesday, the delivery date, yes.
Q: So you caused the petitions to be delivered to Pierre by
somebody else?
A: I caused it? Sure.

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could not find that she offered the petitions because they were not instructed on

vicarious liability is misplaced. Vicarious liability, also known as the doctrine of

respondeat superior, provides that a principal or employer may be held responsible

for “the employee’s or agent’s wrongful acts committed within the scope of the

employment or agency,” under theories of tort or contract law. Bernie v. Catholic

Diocese of Sioux Falls, 2012 S.D. 63, ¶ 8, 821 N.W.2d 232, 237; see also SDCL 59-6-9

(setting forth when a principle is liable to third persons for the negligence or

wrongful acts of his agent); Kirlin v. Halverson, 2008 S.D. 107, ¶¶ 11-27, 758

N.W.2d 436, 444-48 (explaining and applying the law of vicarious liability). The law

of vicarious liability is inapplicable in this context. An instruction on the law of

agency, however, might have been helpful. The law of agency is broader than

vicarious liability, and an agency instruction would include the specific aspects of a

legal relationship that would allow Bosworth to be bound by the actions of her

agents. See SDCL 59-1-1 (“Agency is the representation of one called the principal

by another called the agent in dealing with third persons.”).

[¶36.] Bosworth did not object to the jury instructions on these grounds or

propose instructions of her own on this issue, so “the jury instructions [are] the law

of the case,” see Alvine Family Ltd. P’ship v. Hagemann, 2010 S.D. 28, ¶ 20, 780

N.W.2d 507, 514, and we must merely decide whether the evidence was sufficient to

show she offered false instruments. Importantly, the statute does not include

language requiring Bosworth to personally offer the false instruments, and the jury

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was instructed in accordance with the elements of the statute. 9 And several other

courts have found that “the use of an intermediary to file a false instrument with a

public office will not insulate a person from liability.” People v. Freda, 817 P.2d.

588, 593 (Colo. Ct. App. 2002) (holding that psychiatrist with knowledge of

falsehood who directed staff to submit forms to Medicaid for payment on his behalf

offered instruments within meaning of statute); see also People v. Bel Air Equip.

Corp., 346 N.E.2d 529, 533 (N.Y. 1976) (holding that delivery of vouchers to DOT by

employees constituted a filing which could be attributed to employer). Even

without an agency instruction, a reasonable jury could have found that Bosworth’s

directive to Patrick Davis was sufficient to show she offered the petitions for filing.

To hold otherwise, as the court noted in Freda, would “defeat the statute’s purpose

by granting immunity to any defendant so long as he persuaded an intermediary to

mail or present the false instrument to the public office.” 817 P.2d at 593. We will

9. Jury Instruction No. 25 provided:
Any person who knowingly offers a false or forged instrument
for filing, registering, or recording in a public office, which
instrument, if genuine, could be filed, registered or recorded
under any law of this state or of the United States is guilty of a
crime.
Jury Instruction No. 26 provided:
The elements of the crime of offering a false instrument for
recording, each of which the state must prove beyond a
reasonable doubt, are that at the time and place alleged:

1. The defendant knowingly offered a false or forged instrument
for filing, registering or recording in a public office.

2. The instrument, if genuine, could be filed, registered or
recorded under a law of this state.

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not disturb the jury’s verdict as there was sufficient evidence for the jury to

conclude that Bosworth knowingly offered the false instruments for filing.

CONCLUSION

[¶37.] The circuit court erred by denying Bosworth’s motion for judgment of

acquittal regarding her perjury convictions. Submitting a petition that was

certified under a written oath to a state agency to qualify for an election is not part

of a proceeding or action under SDCL 22-29-1. Accordingly, we vacate Bosworth’s

perjury convictions. The circuit did not err, however, by denying Bosworth’s motion

for judgment of acquittal on the remaining convictions for filing false or forged

instruments. A petition is false under SDCL 22-11-28.1 when it contains a

circulator’s verification signed by someone other than the circulator. Finally, the

evidence presented at trial is sufficient to sustain Bosworth’s convictions under

SDCL 22-11-28.1, and they are affirmed.

[¶38.] GILBERTSON, Chief Justice, SEVERSON, Justice, and WILBUR,

Retired Justice, concur.

[¶39.] ZINTER, Justice, concurs in part and concurs in result in part.

ZINTER, Justice (concurring in part and concurring in result in part).

[¶40.] I join the Court’s opinion on issue one (perjury) and issue three

(sufficiency of the evidence). I concur in result on issue two (false instruments).

[¶41.] On issue two, the question is whether the nominating petitions at issue

were false instruments. Under SDCL 22-11-28.1, a “false instrument” must be one

that is not “genuine.” Id. (prohibiting the offering of a “false . . . instrument . . . for

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filing, . . . which instrument, if genuine, could be filed” (emphasis added)). A thing

is genuine if it is “authentic or real” or if it has “the quality of what a given thing

purports to be or to have”; a genuine instrument is also one that is “free of forgery

or counterfeiting.” Black’s Law Dictionary (10th ed. 2014). There is no claim here

that Bosworth’s petitions were forged or counterfeit. Therefore, Bosworth could be

convicted of filing a false instrument under SDCL 22-11-28.1 if her petitions lacked

the qualities of what nominating petitions purport to be or to have.

[¶42.] Bosworth’s petitions were not what they purported to be because

Bosworth verified petitions as the circulator even though they had been circulated

by someone else. Nor did they have the qualities of what nominating petitions

purport to have because they did not contain the signatures of voters the circulator

obtained. That type of falsehood was more than just an untrue statement of fact.

Like the falsehood in State v. Hayes, 37 S.D. 530, 534-35, 159 N.W. 108, 109-10

(1916), Bosworth falsified the very essence of what the petitions purported to

represent. See Larson v. Hazeltine, 1996 S.D. 100, ¶ 23, 552 N.W.2d 830, 836

(noting that one of the purposes of the circulator’s verification is “to allow potential

challengers to contact the circulators to verify the signatures”). Because Bosworth’s

statements were materially false, the petitions were not genuine, which rendered

them false instruments within the meaning of SDCL 22-11-28.1. I would hold that

the petitions were false instruments for these reasons alone.

[¶43.] I cannot join the Court’s additional analysis suggesting that documents

become “false instruments” merely because they contain some “untrue statements of

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fact.” Supra ¶¶ 26, 31. SDCL 22-11-28.1 requires more: the document must not be

“genuine.”

[¶44.] I also do not agree with the Court’s reliance on two cases. First, in my

view, Reaser v. Reaser is not authoritative here because in that case, we merely

stated in dicta that a divorce stipulation “could conceivably violate SDCL 22-11-22.”

2004 S.D. 116, ¶ 20, 688 N.W.2d 429, 435. We never analyzed the meaning of “false

instrument,” much less concluded that the stipulation was in fact a “false

instrument.” Second, the Court’s opinion stretches Gilbert v. United States beyond

its holding. In that case, the Supreme Court only concluded that false statements

do not create a forgery. Gilbert v. United States, 370 U.S. 650, 658-59, 82 S. Ct.

1399, 1404, 8 L. Ed. 2d 750 (1962). Nothing in Gilbert supports the proposition that

an instrument containing untrue statements is a “false instrument.”

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