93 P.3d 532 (Ariz.App. Div. 1 2004), 1 CA-CR 03-0683, State v. McDermott

Docket Nº:1 CA-CR 03-0683.
Citation:93 P.3d 532, 208 Ariz. 332
Opinion Judge:[9] The opinion of the court was delivered by: Ehrlich, Judge
Party Name:STATE of Arizona, Appellee, v. Timothy P. McDERMOTT, Appellant.
Attorney:[7] Peter Van Haren, City of Phoenix Attorney By Gary L. Shupe, Assistant City Prosecutor; PhoeniX. Attorneys for Appellee. [8] Victor & Hall, P.L.C. Mesa By Marc J. Victor Attorneys for Appellant.
Case Date:July 08, 2004
Court:Court of Appeals of Arizona
 
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Page 532

93 P.3d 532 (Ariz.App. Div. 1 2004)

208 Ariz. 332

STATE of Arizona, Appellee,

v.

Timothy P. McDERMOTT, Appellant.

No. 1 CA-CR 03-0683.

Court of Appeals of Arizona, First Division, Department D.

July 8, 2004

Page 533

[Copyrighted Material Omitted]

Page 534

Peter Van Haren, City of Phoenix Attorney By Gary L. Shupe, Assistant City Prosecutor, Phoenix, Attorneys for Appellee.

Victor & Hall, P.L.C. By Marc J. Victor, Mesa, Attorneys for Appellant.

OPINION

EHRLICH, Judge.

¶ 1 Timothy McDermott challenges the superior court's determination that Arizona Revised Statutes ("A.R.S.") § 13-3102(F) (2001) 1 is not unconstitutionally vague as applied to A.R.S. § 13-3102(A)(1). 2 Specifically, he presents the questions whether the word "luggage" in § 13-3102(F) includes a "fanny pack" and, alternatively, whether the word "luggage" in subsection (F) as applied to § 13-3102(A)(1) is unconstitutionally vague and therefore violative of due process. For the reasons below, we affirm and remand for further proceedings.

¶ 2 Two Phoenix police officers stopped McDermott for speeding. As one of the officers approached his truck, McDermott stepped out, wearing a fanny pack around his waist. After talking with the officer, McDermott removed the pack and placed it in the bed of the truck. When the officer moved the pack, he felt what proved to be a handgun. McDermott was charged in Phoenix Municipal Court with violating A.R.S. § 13-3102(A)(1), the prohibition against carrying a concealed weapon on one's person without a permit.

¶ 3 McDermott moved to dismiss the complaint, contending that his conduct was lawful because a fanny pack falls within the luggage exception in A.R.S. § 13-3102(F). He claimed in the alternative that, if "luggage" is construed to exclude such packs, the statute is unconstitutionally vague. The municipal court granted McDermott's motion, finding that a fanny pack is not luggage but that the word "luggage" as used in the statute is unconstitutionally vague.

¶ 4 The City appealed to the Maricopa County Superior Court, which similarly ruled that a fanny pack is not luggage within the meaning of A.R.S. § 13-3102(F). The court found, however, that the municipal court erred in determining that the statute is unconstitutionally vague. It reversed and remanded the case to municipal court, and McDermott appealed to this court. He contends that either the exception for luggage includes a fanny pack or the statute is unconstitutionally vague because it fails to provide adequate notice of what constitutes unlawful conduct and allows arbitrary enforcement.

¶ 5 McDermott's case was filed in municipal court so our review is de novo but limited to the facial validity of the statute. State v. Kaiser, 204 Ariz. 514, 516-17 ¶ 4, 65 P.3d 463, 465-66 (App.2003); State v. McMahon, 201 Ariz. 548, 550 ¶ ¶ 3, 5, 38 P.3d 1213, 1215 (App.2002); see also A.R.S. § 22-375 (2002). Our primary analytical goal is to fulfill the purpose of the legislature. State v. Cabrera, 202 Ariz. 296, 299 ¶ 14, 44 P.3d 174, 177 (App.2002). If the statutory language is clear and unambiguous, we give it effect and do not employ other rules of statutory construction to discern the legislature's intent. State v. Christian, 205 Ariz. 64, 66 ¶ 6, 66 P.3d 1241, 1243 (2003). In this regard, we consider the statutory scheme as a whole and presume that the legislature does not include statutory "provisions which are redundant,

Page 535

[208 Ariz. 335] void, inert, trivial, superfluous, or...

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