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Date: Mon, 09 Sep 2002 09:19:03 -0700
From: weavermt@YAHOO.COM (Tim Weaver)
Subject: St. v Adams / St. v. Moerman - cases [LONG MESSAGE]
To: AZRKBA@asu.edu

--- Charles F Heller <c.heller@JUNO.COM> wrote: > State v. Adams and state v. Moerman. (corrected spelling, Tim)
>
> Charles
>
> Charles,

Here are the two cases...State v. Adams dealt with some forgery and stuff, so I only took the firearm related portion. Charles, the case listed here is the appellate decision, whic confirmed the conviction. In reading it, I may be missing how your point that a sling is ok. Please elaborate. Also, I have included the whole of State v. Moerman, which is also the appellate decision.

Tim

1 CA-CR 95-0809 COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT A 189 Ariz. 235; 941 P.2d 908; 1997 Ariz. App. LEXIS 90; 244 Ariz. Adv. Rep. 25 May 29, 1997, Filed

[**910] [*237] CONCEALED WEAPON

Appellant was convicted of violating A.R.S. 13-3102(A)(2), which provides in part:

A. A person commits misconduct involving weapons by knowingly:

. . . .

2. Carrying a deadly weapon without a permit pursuant to 13-3112 concealed within immediate control of any person in or on a means of transportation.

The statute does not define "concealed," nor have our courts done so to date.

Officer Cooper found Appellant's Ruger semi-automatic weapon lodged between the passenger seat and door. Officer Cooper testified that he did not see the firearm until he opened the car door; the only way he could have seen the weapon with the door closed was to look "straight down" after putting his entire head through the window. Taking this testimony as an acknowledgement that the weapon, though obscure, [***5] was visible from a certain angle, Appellant argues that the trial court should have directed a verdict that the weapon was not concealed. We disagree.

We begin with the standard definitions. According to Webster's Third New International Dictionary 469 (1966), "conceal" means "to prevent disclosure or recognition of" or "to place out of sight." According to State v. Pudman, "The common definition of the word 'conceal' is 'to hide or withdraw from observation; to cover or keep from sight.'" 65 Ariz. 197, 211, 177 P.2d 376, 386 (1946) (quoting People v. McGinnis, 55 Cal. App. 2d 931, 132 P.2d 30, 32 (Cal. App. 1942)). The problem with such definitions is that they just restate the question: Was this weapon concealed, hidden from observation, or placed out of sight when it could have been seen from a certain angle by one who undertook to see it?

To answer this question, it helps to consider the purpose of A.R.S. 13-3102(A). We have held that the statute is intended to "'protect[] the public by preventing an individual from having on hand a deadly weapon of which the public is unaware, and which an individual may use in a sudden heat of passion.'" State v. Moerman, 182 Ariz. 255, 261, [***6] 895 P.2d 1018, 1024 (App. 1994) (quoting Dano v. Collins, 166 Ariz. 322, 324, 802 P.2d 1021, 1023 (App. 1990)). For that purpose, this weapon was concealed, as there was nothing about its location that put others on notice of its presence.

Other courts have held that a concealed weapon need not be completely hidden or invisible. See, e.g., Ensor v. State, 403 So. 2d 349, 354 (Fla. 1981); State v. Gwinn, 390 A.2d 479, 482 (Me. 1978); State v. Walls, 190 Wis. 2d 65, 526 N.W.2d 765, 767-68 (Wis. App. 1994). Most courts hold that a weapon is concealed if it is hidden from the "ordinary observation" or the "ordinary sight" of anoher person. United States v. Flum, 518 F.2d 39, 45 (8th Cir. 1975); McKee v. State, 488 P.2d 1039, 1042 (Alaska 1971); Ensor, 403 So. 2d at 353-54.

In Walls, the Wisconsin Court of Appeals held that a weapon in the defendant's car was concealed because: (1) it was within the defendant's reach; (2) the defendant knew it was there; and (3) the weapon was "indiscernible from the ordinary observation of a person located outside and within the immediate vicinity of the vehicle." 526 N.W.2d at 767. The court added:

What is ordinary observation [***7] in such cases cannot well be defined so as to meet all the varying conditions under which weapons may be carried . . . but it may be said generally that the meaning is that the weapon must be open to the ordinary observation of persons who may come in contact in the usual and ordinary associations of life with one who carries a weapon. . . . If parties approaching a [person], carrying a weapon[,] . . . or passing [the person] on the streets or highways, or thrown with [the person] in ordinary social contact, can see the weapon without inspection or examination for that purpose, but from ordinary observation, then such weapon is not concealed . . . within the meaning of the statute.

526 N.W.2d at 767 n.3 (quoting Smith v. State, 96 Ala. 66, 11 So. 71 (Ala. 1892)); see also State v. Bowman, 79 Ohio App. 3d 407, 607 N.E.2d 516, 520 (Ohio App. 1992); State v. Coker, 15 Ohio App. 3d 97, 472 N.E.2d 747, 749 (Ohio App. 1984).

[**911] [*238] In Ensor, the Florida Supreme Court considered a partially hidden handgun found by police on a vehicle floorboard at a roadside stop. 403 So. 2d 349. The court rejected the assertion that the weapon was subject to "ordinary observation" by one who scanned the floorboard:

Ordinary observation [***8] by a person other than a police officer does not generally include the floorboard of a vehicle, whether or not the weapon is wholly or partially visible. . . . [A] weapon's possible visibility from a point outside the vehicle may not, as a matter of law, preclude the weapon from being a concealed weapon under [the statute]. . . . In all instances, common sense must prevail. The critical question turns on whether an individual, standing near a person with a firearm . . . may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each case.

403 So. 2d at 354-55 (emphasis added); accord McGraw v. State, 404 So. 2d 817, 819 (Fla. App. 1981); cf. State v. Cavin, 555 S.W.2d 653, 654 (Mo. App. 1977) ("[A] weapon is not concealed simply because it is not discernible from a single vantage point if it is clearly discernible from other positions."); State v. Jordan, 793 S.W.2d 905, 906 (Mo. App. 1990).

Other courts have focused on the nature and degree of observation, excluding from the scope of "ordinary observation" searches that are "unusually careful, thorough or [***9] detailed," such as those of a trained, alert investigating officer. State v. Pettit, 20 Ohio App. 2d 170, 252 N.E.2d 325, 328 (Ohio App. 1969); State v. Gregory, 90 Ohio App. 3d 124, 628 N.E.2d 86, 90 (Ohio App. 1993).

We are satisfied after surveying such case law that the standard of "ordinary observation," when applied with common sense, will serve to determine whether a weapon is concealed. Applying that standard to this case, we find sufficient evidence to support conviction.

- - - - - - -

1 CA-CR 93-0674, 1 CA-SA 93-0276, (Consolidated) COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT C 182 Ariz. 255; 895 P.2d 1018; 1994 Ariz. App. LEXIS 256; 179 Ariz. Adv. Rep. 35

STATE OF ARIZONA, Appellee, v. DAVID E. MOERMAN and JAMES A. DIAZ, Appellants. DAVID E. MOERMAN and JAMES A. DIAZ, Petitioners, v. SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, THE HONORABLE NORMAN D. HALL, judge thereof, and THE PHOENIX MUNICIPAL COURT, THE HONORABLE RICHARD M. SMITH, judge thereof, Respondent Judges, KERRY G. WANGBERG, Phoenix City Prosecutor, Real Party in Interest.

December 13, 1994, Filed

SUBSEQUENT HISTORY: [***1] Petition for Review Denied on May 23, 1995 by Arizona Supreme Court CR-95-0058-PR.

PRIOR HISTORY: Appeal/Special Action from the Superior Court of Maricopa County. Cause Nos. LC 93-00368 and LC 93-00366. The Honorable Norman D. Hall, Jr., Judge.

DISPOSITION: AFFIRMED; JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL: Roderick G. McDougall, Phoenix City Attorney, by Gregory L. Hanchett, Assistant City Prosecutor, Attorneys for Appellee/Real Party in Interest, Phoenix.

Grant Woods, The Attorney General, by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Attorneys for Appellee, Phoenix.

Richard D. Coffinger, ttorney for Appellants/Petitioners, Glendale.

JUDGES: EDWARD C. VOSS, Judge, CONCURRING: SUSAN A. EHRLICH, Presiding Judge, Department C, SHELDON H. WEISBERG, Judge, Dissenting.

OPINIONBY: EDWARD C. VOSS

OPINION: [**1020] [*257] OPINION

VOSS, Judge

Upon stipulated facts, Defendants David E. Moerman and James A. Diaz were tried and convicted in Phoenix Municipal Court of misconduct involving weapons, a class one misdemeanor, in violation of Arizona Revised Statutes Annotated ("A.R.S.") section 13-3102(A)(1) [***2] (Supp. 1992). Each defendant was fined $ 100.00. Defendants' cases were consolidated and their convictions and sentences were affirmed on appeal to the superior court.

Defendants present two arguments in this consolidated appeal and special action: (1) That A.R.S. section 13-3102 conflicts unconstitutionally with Article II, section 26 of the Arizona Constitution; and (2) that the municipal and superior courts erred in their application of this statute. We affirm and deny relief.

FACTS AND PROCEDURAL HISTORY

Defendants Moerman and Diaz were pulled over for routine traffic stops in Phoenix during the autumn of 1992. Even though the stops occurred at different times and locations, the following facts are common to both cases. When the police officers approached Defendants' vehicles, they observed that Defendants were wearing "fanny packs" around their waists. The officers did not know that the "fanny packs" were designed specially to carry concealed weapons, nor that they actually contained guns. In fact, the officers learned that Defendants were carrying guns inside their packs only after Defendants told them. Defendants then were charged with misconduct involving weapons in violation [***3] of A.R.S. section 13-3102(A)(1). The cases were consolidated and tried in Phoenix Municipal Court on a stipulated record. The court found Defendants guilty as charged. On appeal to the superior court, the convictions and sentences were affirmed.

Defendants timely appealed to this court pursuant to A.R.S. section 22-375 (1990). We have jurisdiction to review the facial constitutional validity of A.R.S. section 13-3102. State v. Martin, 174 Ariz. 118, 121, 847 P.2d 619, 622 (App. 1992). Defendants also filed a petition for special action challenging the application of this statute. Because the issue raised in the special action is an issue of first impression and a matter of statewide importance that is likely to recur and, in fact, has recurred in subsequent cases, we accept jurisdiction. State ex rel. Bowers v. Superior Court, 173 Ariz. 34, 38, 839 P.2d 454, 458 (App. 1992). We have consolidated the direct appeal with the special action, and resolve both with this opinion.

DISCUSSION

A. Constitutionality

Defendants argue that A.R.S. section 13-3102 is unconstitutional n1 because it [***4] [**1021] [*258] conflicts with the right to bear arms as guaranteed by Article II, section 26 of the Arizona Constitution. We disagree.

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n1 A statute is presumed to be constitutional and the party attacking its validity bears the burden of establishing that it infringes upon a constitutional guarantee or violates a constitutional provision. New Times, Inc. v. Arizona Board of Regents, 110 Ariz. 367, 370, 519 P.2d 169, 172 (1974); Dano v. Collins, 166 Ariz. 322, 323, 802 P.2d 1021, 1022 (App. 1990), review denied, 167 Ariz. 535, 809 P.2d 960 (1991). Moreover, the legislature's power to enact laws it deems appropriate is limited only by an express or inferential prohibition within the state or federal constitutions. See Whitney v. Bolin, 85 Ariz. 44, 47, 330 P.2d 1003, 1004 (1958); see also Roberts v. Spray, 71 Ariz. 60, 69, 223 P.2d 808, 814 (1950).

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A.R.S. section 13-3102 provides in pertinent part:

A. A person commits misconduct involving weapons by knowingly: 1. Carrying a deadly weapon . . . on his person; or 2. Carrying a deadly weapon concealed within immediate control of any person in or on a means of transportation; . . . .

F. Subsection A, paragraph 1 of this section shall not apply to a weapon or weapons carried in a belt holster which holster is wholly or partially visible, or carried in a scabbard or case designed for carrying weapons which scabbard or case is whlly or partially visible or carried in luggage. Subsection A, paragraph 2 of this section shall not apply to a weapon or weapons carried in a case, holster, scabbard, pack or luggage which are carried within a means of transportation or within a storage compartment, trunk or glove compartment of a means of transportation.

As the sole basis for their argument, Defendants cite the fact that the delegates at the Arizona Constitutional Convention of 1910 rejected five separate amendments that expressly would have granted the legislature the power to regulate or prohibit the carrying of concealed weapons. Defendants concede that the [***6] constitutionality of A.R.S. section 13-3102 was addressed and upheld by this court in Dano v. Collins, 166 Ariz. 322, 802 P.2d 1021 (App. 1990), review denied, 167 Ariz. 535, 809 P.2d 960 (1991). They contend, nevertheless, that Dano is not dispositive because it failed to analyze the "irrefutable" intent of the framers of the Arizona Constitution to create an absolute right to bear arms.

Of the five "rejected amendments" cited by Defendants, three offer no indicia of the framers' intent regarding the right to bear arms. n2 Therefore, we examine only the remaining two. While the delegates at the Constitutional Convention were considering Arizona's Bill of Rights n3 during the evening proceedings of November 25, 1910, the first "rejected amendment" was introduced. This amendment proposed to add to Arizona's right to bear arms the following clause: "But the legislature shall have the right to regulate the wearing of weapons to prevent crime." The Records of the Arizona Constitutional Convention of 1910 678 (John S. Goff ed., 1991). The delegates rejected this by a roll call vote of 23-22. [***7] Id. at 679. The second "rejected amendment" proposed to delete the entire provision and rephrase it as follows: "The people shall have the right to bear arms for their safety and defense, but the legislature shall regulate the exercise of this right by law." Id. at 678. This amendment was defeated by voice vote. Id. The delegates ultimately approved Arizona's Bill [**1022] [*259] of Rights and then concluded the November 25, 1910, evening proceedings. Id. at 682.

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n2 The three "rejected amendments" were provisions contained within Propositions that the Convention was scheduled to consider on or after November 26, 1910. The Records of the Arizona Constitutional Convention of 1910 684 (John S. Goff ed., 191). Each of these Propositions was a competing comprehensive proposal for Arizona's Bill of Rights. Id. at 1247-48, 1250-56, 1293-1300. Early in the morning proceedings of November 26, 1910, the day after the delegates approved the Bill of Rights, each of these Propositions was tabled indefinitely without discussion. Id. at 684. Because the proposed amendments relied on by Defendants were not even discussed, they provide no support for Defendants' position. [***8]

n3 The proposed provision that the delegates considered and ultimately passed that evening became Article II, section 26 of the Arizona Constitution. This section, which has not been amended, provides: "The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men."

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We do not believe these "rejected amendments" support Defendans' argument that the framers of the Arizona Constitution intended Article II, section 26 to confer an absolute right to bear arms. Defendants assert that because the second "rejected amendment" expressly would have authorized the legislature to regulate the right to bear arms, we should infer from its rejection that the delegates intended to make this right absolute. We disagree for two reasons. First, this amendment would have expanded the scope of an individual's right to bear arms. Instead of allowing a person to bear arms for defense only, the second "rejected amendment" would have [***9] allowed a person to bear arms for "safety and defense." Id. at 678 (emphasis added). Second, this amendment would have entirely eliminated the second clause of the proposed right to bear arms. This clause provides: "but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men." Arizona Constitution, Article II, 26. The framers could have rejected this amendment because this clause was deleted. For both of these reasons, the second "rejected amendment" provides little, if any, support for Defendants' position. Likewise, when balanced against the clear evidence to the contrary, the remaining "rejected amendment" offers little evidence that the framers intended to make Arizona's right to bear arms absolute.

First, we note that Article II, section 26 itself provides not an absolute right, but instead a qualified one in which "the right of the individual citizen to bear arms in defense of himself or the State shall not be impaired . . . ." (Emphasis added.) Its plain wording demonstrates that the right is not absolute and implies that some qualification is permissible. Dano, 166 Ariz. at 325, 802 P.2d at 1024. [***10] Indeed, its very language suggests that people do not have the right to bear arms in any manner and under all circumstances in Arizona. Id. at 323, 802 P.2d at 1022. Second, Defendants' denial that the delegates at Arizona's Constitutional Convention could have understood the right to bear arms as a qualified right ignores the state of the law at that time. Immediately before and after the adoption of Arizona's Constitution, carrying concealed weapons was prohibited. In fact, the 1913 Arizona Penal Code mirrored the 1901 Penal Code of the Arizona Territory, providing "it shall be unlawful for any person (except a peace officer in actual service and discharge of his duty), to have or carry concealed on or about his person, any pistol or other firearm . . . ." Arizona Revised Statutes, Penal Code, Title XII, 426 (1913); Revised Statutes of Arizona Territory, Penal Code, Title XI, 382 (1901). Defendants fail to reconcile these statutes with the first "rejected amendment." Indeed, they do not consider that the framers could have rejected this amendment to avoid redundancy, or because they deemed it to be unnecessary. Not only is the [***11] historical context of the first "rejected amendment" open to several interpretations, but the interpretation argued by Defendants is not the most persuasive.

Because the only evidence that even suggests that the framers intended to make Arizona's right to bear arms absolute is the first "rejected amendment," Defendants have not met their burden of demonstrating that Article II, section 26 of the Arizona Constitution expressly or inferentially prohibits the legislature from limiting the right to carry concealed weapons. Additionally, we have already noted that A.R.S. section 13-3102 was drafted to "protect[] the public by preventing an individual from having on hand a deadly weapon of which the public is unaware, and which an individual may use in a sudden heat of passion." Dano, 166 Ariz. at 324, 802 P.2d at 1023. This statute is narrowly drawn and, as the discussion below indicates, it regulates only the manner in which individuals may exercise their right to bear arms. Although A.R.S. section 13-3102 may limit this right, it neither frustrates nor impairs it. A.R.S. section 13-3102 is constitutional.

B. Application and Interpretation [***12] Defendants argue that the municipal and superior courts erred when applying A.R.S. section 13-3102. They petition this court to [**1023] [*260] vacate their convictions and fines. We disagree with Defendants' argument and deny relief.

In construing a statute, our primary purpose is to "determine and give effect to the legislative intent behind the statute." State v. Korzep, 165 Ariz. 490, 493, 799 P.2d 831, 834 (1990). There also is a presumption that the legislature does not include in statutes provisions which are redundant, void, inert, trivial, superfluous, or contradictory. See State v. Deddens, 112 Ariz. 425, 429, 542 P.2d 1124, 1128 (1975); see also State v. Edwards, 103 Ariz. 487, 489, 446 P.2d 1, 3 (1968). We must examine the statute as a whole and give harmonious effect to all its sections. State v. Ball, 157 Ariz. 382, 384, 758 P.2d 653, 655 (App. 1988) (emphasis added).

As a threshold matter, we note that Defendants were charged under A.R.S. section 13-3102(A)(1), not A.R.S. section 13-3102(A)(2). [***13] Subsection A, paragraph 1 establishes a broad prohibition against carrying concealed weapons on one's person. Subsection A, paragraph 2 prohibits carrying concealed weapons not on one's person, but instead "within immediate control of any person in or on a means of transportation." Here, Defendants were carrying concealed weapons inside "fanny packs." Because the packs were on their persons, A.R.S. section 13-3102(A)(1) applies. Therefore, in the absence of an exemption for Defendants' conduct, we must uphold their convictions and fines.

A.R.S. section 13-3102(F) provides exemptions to the application of A.R.S. section 13-3102(A)(1) and (2). Defendants argue that because a "fanny pack" is a "case designed for carrying weapons" pursuant to A.R.S. section 13-3102(F), the municipal and superior courts erred by convicting them. We disagree.

First, we examine the plain language of A.R.S. section 13-3102(F). By accepting Defendants' argument that a "fanny pack" is a "case" we would disregard the legislative intent underlying the second sentence of this subsection. When read in its entirety, the terms of subsection F identify a legislative scheme with an implicit definition of "case." The [***14] first sentence provides a narrow exemption in which one can carry a concealed weapon on one's person in a holster, scabbard, or case that is visible. A.R.S. 13-3102(F). n4 The second sentence, on the other hand, creates a broader exemption for concealed weapons carried "within immediate control of any person in or on a means of transportation." Id. In the latter, one can carry a concealed weapon not only in a holster, scabbard, or case, but also in a "pack." Id. (emphasis added). Moreover, unlike the first sentence of subsection F, the second sentence does not require that the conveyance utilized to carry the weapon be visible. Id. Therefore, the very language used in A.R.S. section 13-3102(F) supports the conclusion that the legislature did not intend a "case" to include any conveyance that could be construed as a "pack." Concluding otherwise would obviate the rational distinction that the legislature created between the two sentences by adding "pack" and would render this term virtually meaningless. This we cannot do.

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n4 Both the first and the second sentences of A.R.S. section 13-3102(F) provide exemptions for concealed weapons carried in luggage. This additional exemption is not important for purposes of this discussion. "Luggage" is commonly defined as "suitcases or travelling bags for a traveller's belongings." Webster's New Collegiate Dictionary 678 (1981). A "fanny pack" is not such a means of conveyance. Moreover, when carried in luggage used while travelling, a concealed weapon for all intents and purposes is inaccessible for use in "a sudden heat of passion." Dano, 166 Ariz. at 324, 802 P.2d at 1023.

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Moreover, by accepting Defendants' definition of a "case" we would allow the narrow exemption of subsection F to engulf the broad prohibition of subsection A. Defendants argue that the statute encourages people to carry concealed weapons on their persons, just as long as they do so in a conveyance that is both visible and designed to carry weapons. That a "case" is designed intentionally to appear as though it is a benign every-day item containing anything but a weapon is irrelevant to Defendants. Defendants argue that any specially designed conveyance--a "fanny pack," purse, backpack, [**1024] [*261] lunch box or briefcase--is a "case" for purposes of A.R.S. section 13-3102(F). Because this construction effectively would eviscerate the broad and general prohibition of A.R.S. section 13-3102(A)(1), we disagree.

The public policy underlying A.R.S. section 13-3102(F) also supports our construction. In Dano, this court noted:

the right to bear arms in self-defense is not impaired by requiring individuals to carry weapons openly. Appellants are free to bear exposed weapons for their defense. Furthermore, the statute has a reasonable purpose--it protects the public by preventing an individual [***16] from having on hand a deadly weapon of which the public is unaware, and which an individual may use in a sudden heat of passion.

166 Ariz. at 323-24, 802 P.2d at 1022-23. Dano correctly concludes that notice is the key to understanding and harmonizing A.R.S. sections 13-3102(A)(1) and (F). We believe that the legislature intended to prohibit a person from carrying a concealed weapon on his or her person in a manner readily accessible for immediate use unless the conveyance utilized to carry the weapon reasonably would place others on notice that such person is armed. n5 "Fanny packs" do not give such notice. On one hand, conspicuously carrying a holster or scabbard gives notice to most people that one is armed. On the other hand, carrying a concealed weapon in a "fanny pack"--or for that matter in a purse, backpack, lunch box, briefcase, or other conveyance that is specially designed to carry a concealed weapon--does not. n6

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n5 While of no moment to the decision today, the court acknowledges that the legislature now allows licensed individuals to carry concealed weapons in any manner they choose. The legislation, however, does require training and screening of potential licensees. See A.R.S. 13-3112 (Supp. 1994). [***17]

n6 Although pedestrians cannot observe readily what a car driver is carrying, the visibility and nature of a conveyance becomes essential to give notice of a concealed weapon to those who may approach the driver while the car is stopped. Indeed, the facts of this case illustrate this. Here, police officers did not have any notice that Defendants were carrying concealed guns on their persons inside "fanny packs." In fact, the officers only learned that Defendants had concealed weapons on their persons after Defendants told them.

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We add that we would effectuate curious public policy if we accepted Defendants' argument that a "fanny pack" was a "case" for purposes of A.R.S. section 13-3102(F). Defendants imply that when two people carry concealed weapons in conveyances that are indistinguishable in appearance and when both are subsequently charged under A.R.S. section 13-3102(A)(1), the person who has a case with an interior designed for carrying weapons will be acquitted while the other person who has an ordinary case could be convicted. Under this interpretation, the manufacturer's design and [***18] marketing would be dispositive of what constitutes a "case" and, therefore, who is subject to criminal liability under this statute. This conclusion does not trouble Defendants, despite the statutory public policy that Arizona's Criminal Code should "differentiate on reasonable grounds between serious and minor offenses and . . . prescribe proportionate penalties for each . . . ." A.R.S. 13-101(4) (1989) (emphasis added). Although Defendants may consider this distinction to be reasonable, we do not.

CONCLUSION

For foregoing reasons, we hold that A.R.S. section 13-3102 is constitutional and that a "fanny pack" is not a "case" for purposes of A.R.S. section 13-3102(F). We have examined the record for fundamental error and have found none. Accordingly, we deny relief and affir the convictions and sentences of Defendants Moerman and Diaz.

EDWARD C. VOSS, Judge

CONCURRING:

SUSAN A. EHRLICH,

Presiding Judge, Department C

DISSENTBY: SHELDON H. WEISBERG

DISSENT:

WEISBERG, Judge, Dissenting

I respectfully dissent from the majority's determination that A.R.S. section 13-3102(F) applies to weapons carried in the fanny-packs at issue here. While I concede that the majority's interpretation likely [***19] reflects that intended by the legislature, such an interpretation renders the statute unconstitutionally vague.

[**1025] [*262] A statute is unconstitutionally vague if it does not give a person of ordinary intelligence the ability to determine what the statute prohibits. State v. Takacs, 169 Ariz. 392, 394, 819 P.2d 978, 980 (App. 1991). Although the majority has made a persuasive argument that the legislature did not intend to exempt weapons carried in these fanny-packs, the plain language of the statute reads otherwise. To interpret the statute contrary to its plain language would deprive these defendants of their right to due process of law.

Due process requires that criminal offenses be defined in terms of sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute because a person should not be required, at the risk of his liberty, to speculate as to the meaning of a criminal statute.

State v. Walton, 133 Ariz. 282, 288, 650 P.2d 1264, 1270 (App. 1982) (citation omitted).

After establishing a general prohibition of concealed [***20] weapons, A.R.S. section 13-3102 excludes from that prohibition weapons "carried in a scabbard or case designed for carrying weapons which scabbard or case is wholly or partially visible. . . ." A.R.S. 13-3102(F). The issue here is whether defendants' fanny-packs are "cases designed for carrying weapons." The common meaning of "case" is "a box or receptacle for holding something," or "an outer covering or housing." Webster's New Collegiate Dictionary 170 (1979). The fanny-packs in this matter clearly fit that definition.

The majority would interpret "a case designed for carrying weapons" to mean "a case designed for carrying weapons, which case must be readily identifiable as containing a weapon." Such interpretation does not give a person of ordinary intelligence fair notice of what the statute prohibits.

To avoid confusion, the legislature ought to require that the holster, scabbard, or case be readily identifiable as containing a weapon. As presently written, however, the plain language of the statute includes these fanny-packs within the statutory exception.

I conclude, therefore, that A.R.S. section 13-3102(F), as interpreted by the majority, is unconstitutionally vague and [***21] deprives defendants of due process of law. Accordingly, I would reverse the convictions.

SHELDON H. WEISBERG, Judge


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