Arizona Gun Possession Laws and Cases
The weapons misconduct statute prohibits (among other actions) "knowingly . . . using or possessing a deadly weapon during the commission of any felony offense included in chapter 34 of this title." A.R.S. 13-3102(A)(8) (Supp. 1999).
In interpreting a statute, we look first to its language and apply the language unless the result is "absurd or impossible." See Lowing v. Allstate Ins. Co., Inc., 176 Ariz. 101, 103, 859 P.2d 724, 726 (1993).
If statutory terms are defined, we apply that definition; otherwise, we interpret statutory terms "in accordance with their commonly accepted meanings." State v. Reynolds, 170 Ariz. 233, 234, 823 P.2d 681, 682 (1992).
"Possess" and "possession" are defined in section 13-105 but not in the weapons misconduct statute. "Possess" means "knowingly to have physical possession or otherwise to exercise dominion or control over property." A.R.S. 13-105(30) (Supp. 1999).
"'Possession' means a voluntary act if the defendant knowingly exercised dominion or control over property." A.R.S. 13-105(31). These terms encompass constructive possession of an item; a defendant may exercise dominion and control over an item without having physical possession.
See State v. Chabolla-Hinojosa, 192 Ariz. 360, 363, P13, 965 P.2d 94, 97 (App. 1998); State v. Villalobos Alvarez, 155 Ariz. 244, 245, 745 P.2d 991, 992 (App. 1987).
These terms do not indicate that the statute requires anything more than constructive possession of a weapon and commission of a drug offense to sustain a conviction under the statute.
In everyday usage, the term "during" means "throughout the course or duration" or "at some time in." See Webster's II New College Dictionary 351 (1995).
Thus, the statute, by its plain language, requires proof that a defendant possessed a deadly weapon "at some time in" the commission of a qualifying felony offense. the plain language of the statute requires only a temporal nexus between possession of the weapon and commission of the offense.
The federal statute, however, differs significantly from the Arizona statute. Compare 18 U.S.C. 924(c)(1) with A.R.S. 13-3102(A)(8) (Supp. 1999).
The federal statute applies to a person who "uses or carries" a firearm and does not mention mere "possession" as a basis for conviction.
It requires the use of the weapon "during and in relation to" the underlying drug offense.
The Arizona statute does not contain the words "in relation to"; instead it applies to persons who use or possess the weapon "during the commission of" the underlying felony.
Because the federal statute substantially differs from our statute, we do not find the federal cases persuasive in interpreting the Arizona statute.
The sparse legislative history for section 13-3102 similarly fails to assist us. the legislature submitted the weapons misconduct statute for consideration in 1990 as part of House Bill Number 2080.
The section remained entirely unmodified; no record exists of any attempt to amend or clarify its meaning, and no official legislative declarations or findings address this section.
One legislator offered her opinion that the "major goal is to let the gangs who have come into Arizona and the drug-lords who want to monopolize our communities to know that we are tired of it, we're not going to put up with it, and we are going to take back our communities." Debate on H.B. 2080 Before the House Committee of the Whole, 39th Legis., 2d Reg. Sess., Feb. 18, 1990 (statement by B. Burns, Rep.).
This rather broad assertion could support either a conclusion that the weapons misconduct statute requires that the gun possession facilitate commission of a crime or a conclusion that the legislature sought to impose strict liability for possession of guns by those who commit crimes, so as to "clean up the streets."
The Colorado Court of Appeals also recently interpreted a statute providing for an enhanced sentence for a defendant who "used, displayed, possessed, or had available for use a deadly weapon." See, Colorado v. Atencio, 878 P.2d 147, 149 (Colo. App. 1994) (quoting Colo. Rev. Stat. 18-18-407(1) (Supp. 1993)).
It held that the statute required a nexus between the offense and the use of the weapon. the court found the terms "use, display, possession, or availability for use" to be "nexus terms" and concluded that a showing of spatial proximity was sufficient to satisfy the requirement that a gun be "available for use." Id. at 150.
Other courts have interpreted the word "possession" to encompass "the elements of availability and accessibility." See, e.g., Barnett v. Delaware, 691 A.2d 614, 618 (Del. 1997) (interpreting statute that prohibited "possession of a firearm during the commission of a felony"); cf. Washington v. X, 94 Wn. App. 882, 974 P.2d 855, 861 (Wash. App. 1999) (holding defendant is "armed" for purposes of deadly weapon allegation if weapon is "easily accessible and readily available for use"). These cases require a spatial nexus between the person and the gun for the weapon to fall within the statute.