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.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
- - -

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).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - -
- - -  [***5]

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.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
- - -

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."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - -
- - -

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.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
- - -

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.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - -
- - -  [***15]

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

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
- - -

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.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - -
- - -

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