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State v. Johnson

Court of Appeals of Arizona, Second Division

July 28, 2017

The State of Arizona, Appellee,
v.
Bo Lucas Johnson, Appellant.

         Appeal from the Superior Court in Pima County No. CR20161809001 The Honorable Richard D. Nichols, Judge

          Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Appellee

          Kimminau Law Firm, PC, Tucson By Chris J. Kimminau Counsel for Appellant

          Judge Espinosa authored the opinion of the Court, in which Presiding Judge Staring and Judge Kelly [1] concurred.

          OPINION

          ESPINOSA, Judge

         ¶1 Bo Johnson was convicted in Green Valley Justice Court of threatening or intimidating in violation of A.R.S. § 13-1202(A)(1) and misconduct involving weapons in violation of A.R.S. § 13-3102(A)(12). Johnson appealed his convictions to the Pima County Superior Court, which affirmed them, and he now appeals to this court, challenging the validity of the weapons misconduct statute, and asking us to take jurisdiction to reverse his threatening or intimidating conviction. For the following reasons, we affirm his weapons misconduct conviction and dismiss the appeal of his threatening or intimidating conviction.

         Factual and Procedural Background[2]

         ¶2 In September 2014, Johnson and D.M. became involved in a verbal conflict while on the road in separate cars. The following day, the two encountered one another in a school parking lot. D.M. walked over to Johnson's truck and Johnson, who was handling a gun, said words to the effect of "driving like that will get you shot." D.M. reported both the gun and the statement to a police officer assigned to the school. The officer then spoke with Johnson and examined the gun, which had bullets in its magazine although none in its firing chamber.

         ¶3 Johnson was charged with two counts of threatening or intimidating and one count of misconduct involving weapons. One of the threatening or intimidating counts was subsequently dismissed, and Johnson was convicted of the two remaining charges, placed on probation, and ordered to complete four sessions of anger management and pay a fine. The Pima County Superior Court affirmed his convictions in June 2016.

         ¶4 Johnson filed a motion for rehearing on his weapons misconduct conviction, arguing that § 13-3102, which contains an exception for an unloaded firearm, is unconstitutionally vague because it lacks a definition of "loaded, " which could be construed as limited to a gun having a bullet in its firing chamber. The superior court denied the motion and again affirmed Johnson's convictions, noting that the common understanding of "loaded" is "containing ammunition." Johnson appealed to this court, arguing the superior court erred in affirming both convictions and in particular that 13-3102(A)(12) and 13-3102(I)(1) are unconstitutionally vague.

         ¶5 Our jurisdiction over appeals from a justice court ruling already appealed to superior court is limited to actions involving the relevant statute's "validity." A.R.S. § 22-375(A). Accordingly, we have appellate jurisdiction to hear Johnson's challenge to the constitutional validity of § 13-3102 but not his argument that the superior court erred in affirming his threatening or intimidating conviction.

         Guns on School Property

         ¶6 As noted above, we consider only Johnson's argument that 13-3102(A)(12) and 13-3102(I)(1) are unconstitutionally vague when read together. Section 13-3102(A)(12) provides that misconduct involving weapons occurs when a person knowingly "[p]ossess[es] a deadly weapon on school grounds." Section 13-3102(I)(1), however, provides an exception to (A)(12) when the weapon is a "[f]irearm that is not loaded and that is carried within a means of transportation under the control of an adult." Johnson essentially argues that the Arizona statute is unconstitutionally vague because some other states have defined "loaded" more narrowly than simply "containing ammunition."

         ¶7 In support, Johnson cites Utah's definition of "loaded" as "when there is an unexpended cartridge, shell, or projectile in the firing position" or "when an unexpended cartridge, shell, or projectile is in a position whereby the manual operation of any mechanism once would cause [it] to be fired." Utah Code § 76-10-502(1)-(2). In contrast, however, California has defined "loaded" in one context as "whenever both the firearm and the unexpended ammunition capable of being discharged from the firearm are in the immediate possession of the same person" and otherwise as "when there is an unexpended cartridge or shell . . . in, or ...


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