State ex rel. Thomas v. Contes

169 P.3d 115, 216 Ariz. 525, 515 Ariz. Adv. Rep. 29, 2007 Ariz. App. LEXIS 201
CourtCourt of Appeals of Arizona
DecidedOctober 25, 2007
DocketNo. 1 CA-SA 07-0201
StatusPublished
Cited by2 cases

This text of 169 P.3d 115 (State ex rel. Thomas v. Contes) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Thomas v. Contes, 169 P.3d 115, 216 Ariz. 525, 515 Ariz. Adv. Rep. 29, 2007 Ariz. App. LEXIS 201 (Ark. Ct. App. 2007).

Opinion

OPINION

TIMMER, Judge.

¶ 1 We are asked in this special action to decide whether the definition of “prohibited possessor” in Arizona Revised Statutes (“A.R.S.”) section 13-3101(A)(6)(e) (Supp. 2006), which includes persons who are prohibited possessors under 18 United States Code (“U.S.C.”) section 922(g)(5), as excepted by subsection (y) of that provision, requires proof that possession of any firearm or ammunition had a nexus with interstate or foreign commerce. Based on the plain language of A.R.S. § 13-3101(A)(6)(e), we hold that it does.

BACKGROUND

¶ 2 On March 2, 2007, a Mesa Police officer stopped real-party-in-interest Israel Saldana Perez after he was observed speeding and weaving through traffic. The officer arrested Perez when he failed to produce identification, instead providing a Mexican electoral card and drivers license, both of which appeared phony. During a vehicle search incident to arrest, the officer discovered a Smith & Wesson .38 revolver in the center console. A subsequent fingerprint check with the Department of Homeland Security revealed that Perez had been deported from the United States on three prior occasions and had tried to re-enter the United States by using different aliases. Perez’s family members later confirmed that Perez was born in Mexico and was in the United States illegally.

¶ 3 The grand jury indicted Perez for multiple offenses, including misconduct involving weapons pursuant to A.R.S. § 13-3102(A)(4) (“Count One”), which prohibits a person from knowingly possessing a deadly weapon or prohibited weapon while being a prohibited possessor. The State alleged Perez was a “prohibited possessor” pursuant to A.R.S. § 13-3101(A)(6)(e), which defines such a person as one “[w]ho is a prohibited possessor under 18 United States Code section 922(g)(5), except as provided by 18 United States Code section 922(y).” Section 922(g)(5), in turn, provides as follows:

(g) It shall be unlawful for any person—
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection
(y)(2), has been admitted to the United States under a nonimmigrant visa____
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Section 922(y)(2) provides an exception for aliens admitted under a nonimmigrant visa and who fall within at least one of four categories.1

[527]*527¶ 4 Perez subsequently filed a motion to dismiss or for remand to the grand jury for a new determination of probable cause regarding Count One. He argued the indictment was insufficient as a matter of law because the State failed to present any evidence to the grand jury that the Smith & Wesson revolver was shipped or transported in interstate or foreign commerce or was possessed in or affected commerce, as required by 18 U.S.C. § 922(g)(5). The State did not contest that it had faded to introduce evidence of the revolver’s interstate or foreign commerce nexus. Rather, the State argued that such evidence was unnecessary to secure a conviction under A.R.S. § 13-3101(A)(6)(e), and consequently neither dismissal nor remand was necessary. The trial court granted Perez’s motion and remanded to the grand jury for a new determination of probable cause regarding Count One. The court reasoned that by enacting § 13-3101(A)(6)(e), the legislature adopted the entirety of 18 U.S.C. § 922(g)(5), including its requirement that the prohibited weapon have an interstate or foreign commerce nexus. This special action followed.2

JURISDICTION AND STANDARD OF REVIEW

DISCUSSION

¶ 5 We exercise our discretion to accept jurisdiction in this special action because it presents a legal question of first impression and of statewide importance, and because the State has no equally plain, speedy, or adequate remedy by appeal.3 Ariz. R.P. Spec. Act. 1(a); see State ex rel. Corbin v. Superior Court, 161 Ariz. 181, 183, 777 P.2d 679, 681 (App.1988) (holding special action proper means for State to seek relief from a remand for new determination of probable cause), vacated in part on other grounds, State ex rel. Corbin v. Ybarra, 161 Ariz. 188, 777 P.2d 686 (1989); State v. Fell, 2007 WL 2570196, 3, ¶ 12, 512 Ariz. 13, ¶ 12, 171 P.3d 193, 195 (Ariz.App.2007) (accepting special action jurisdiction to review trial court’s order remanding for new determination of probable cause). We review the trial court’s interpretation of A.R.S. § 13-1301(A)(6)(e) de novo as a question of law. State v. Getz, 189 Ariz. 561, 563, 944 P.2d 503, 505 (1997).

¶ 6 When construing statutes, our primary goal is to ascertain the legislature’s intent. Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996). We first look to the text of the relevant statutes. State v. Christian, 205 Ariz. 64, 66, ¶ 6, 66 P.3d 1241, 1243 (2003). If the statutory language is clear, we ascribe plain meaning to its terms. Rineer v. Leonardo, 194 Ariz. 45, 46, ¶ 7, 977 P.2d 767, 768 (1999). If ambiguity exists, we employ secondary principles of statutory construction to glean legislative intent. State ex rel. Dep’t of Econ. Sec. v. Demetz, 212 Ariz. 287, 289, ¶ 7, 130 P.3d 986, 988 (App.2006).

¶7 The State argues the trial court erred in ruling that AR.S. § 13-3101(A)(6)(e) requires the State to prove an interstate or foreign commerce nexus involving the Smith & Wesson revolver because the plain language of that statute demonstrates the legislature’s intent to adopt only the portion of 18 U.S.C. § 922(g)(5) that defines the class of aliens who can be prohibited possessors under that provision. Specifically, the State [528]

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Bluebook (online)
169 P.3d 115, 216 Ariz. 525, 515 Ariz. Adv. Rep. 29, 2007 Ariz. App. LEXIS 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-thomas-v-contes-arizctapp-2007.