IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

WALTER JAMES MANGUM,

Appellant. )

)

)

)

)

)

)

)

)

) 2 CA-CR 2005-0384

DEPARTMENT A

O P I N I O N

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR-20032388

Honorable Paul Tang, Judge

Honorable Charles S. Sabalos, Judge

AFFIRMED

Terry Goddard, Arizona Attorney General

By Randall M. Howe and Eric J. Olsson

Creighton Cornell, P.C.

By Creighton Cornell Tucson

Attorneys for Appellee

Tucson

Attorney for Appellant

P E L A N D E R, Chief Judge. JAN 12 2007 

### FILED BY CLERK

COURT OF APPEALS

DIVISION TWO2

¶1 Following a jury trial, appellant Walter Mangum was convicted of possession

of a deadly weapon by a prohibited possessor. The trial court suspended the imposition of

sentence and placed Mangum on probation for three years. On appeal, he argues on various

grounds the trial court erred in not dismissing the sole charge again st him after the Pima

County Justice Court vacated the underlying conviction that had cre ated his prohibited

possessor status. He also contends the evidence was insufficient to support his conviction

and the trial court erroneously precluded any evidence at trial that his underlying conviction

was invalid.

¶2 Although the first issue Mangum raises is a close one, we conclude he was not

entitled to dismissal of

the prohibited possessor charge after the underlying, predicate

conviction on which that charge was based was found constitutionally invalid and vacated.

Accordingly, the trial court did not err in failing to dismiss this case on that basis. We also

find no merit in Mangum’s other arguments and, therefore, affirm.

BACKGROUND

¶3 We view the evidence in the light most favorable to upholding the jury’s

verdict. S ee State v. Tamplin

, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). The

pertinent procedural facts, however, are undisputed. In October 2002, Mangum pled guilty

in justice court to a misdemeanor domestic violence/disorderly conduct offense in violation

of A.R.S. §§ 13-2904 and 13-3601(A) and was placed on s upervised probation. In July

2003, a probation officer inspected Mangum’s residence and discovered firearms in his3

bedroom. About a week later, Mangum was indicted on a charge of possession of a deadly

weapon by a prohibited possessor “while serving a term of probation” in violation of A.R.S.

§ 13-3102(A)(4) and former (J) (now (K)).

¶4 Shortly thereafter, Mangum petitioned the justice court for post-con viction

relief from the misdemeanor domestic violence conviction pursuant t o Rule 32, Ariz. R.

Crim. P., 17 A.R.S. In October 2004, the justice court granted relief, finding multiple,

prejudicial violations of Mangum’s right to counsel and on that basis vacating the

misdemeanor conviction for which Mangum had been placed on probation in 2002. The

state apparently did not further pursue any charges against Mangum in connection with that

prior incident.

¶5 Mangum then moved to dismiss the prohibited possessor charge in this case

based on the justice court’s hav ing vacated the underlying misdemeanor conviction. Because

that conviction had been “recently deemed invalid,” Mangum argued, his “alleged

probationary status of July, 2003 [was] a nullity.” After hearing argument, the trial court

(Judge Tang) denied the motion without comment. This court later declined to accept

jurisdiction of Mangum’s petition for special action challenging that r uling, M angum v.

State

, No. 2 CA-SA 2005-0024 (order filed May 3, 2005), and thereafter, our supreme court

denied his petition for review, Mangum v. State

, No. CV-05-0215-PR (Ariz. Sup. Ct. order

filed Dec . 8, 2005). During the ensuing trial in this case, the trial court (Judge Sabalos)

denied Mangum’s motion for reconsideration of Judge Tang’s previous denial of the motion4

to dismiss and also denied Mangum’s motion for judgment of acquittal made pursuant to

Rule 20, Ariz. R. Crim. P., 17 A.R.S. The trial court later denied Mangum’s post-trial

motion for a new trial, in which he reurged the same arguments previously made below and

now presented on appeal.

DISCUSSION

I.

¶6 Mangum first argues the trial court erred in refusing to dismiss the prohibited

possessor charge after the justice co urt vacated his misdemeanor domestic violence

conviction and ultimately dismissed that charge. We review for abuse of discretion a trial

c ourt’s ruling on a motion to dismiss criminal charges, but questions of statutory

interpretation and constitutional law are reviewed de novo. S tate v. Ramsey

, 211 Ariz. 529,

¶ 5, 124 P.3d 756, 759 (App. 2005). “A trial court abuses its discretion when it misapplies

the law or predicates its decision on incorrect legal principles.” S tate v. Jackson

, 208 Ariz.

56, ¶ 12, 90 P.3d 793, 796 (App. 2004).

¶7 As noted earlier, Mangum was charged with having committed weapons

misconduct “while serving a term of probation” in violation of § 13-3102(A)(4). That

statute prohibits one from “knowingly

. . . [p]ossessing a dead l y weapon or prohibited

weapon if such person is a prohibited possessor.” The phrase “‘[p]rohibited possessor’”

includes “any person

. . . [w]ho is at the time of posses s ion serving a term of probation

pursuant to a conviction for a domestic violence offense as defined in [A.R.S.] § 13-3601.”1 As one state court observed, the United States Supreme Court has found no federal

due process violation in “all ow[ing] a felon in possession charge to be based upon a

consti tutionally infirm prior conviction.” C lark v. State

, 739 P.2d 777, 780 (Alaska Ct.

App. 1987), c iting Lewis v. United States

, 445 U.S. 55, 65-68, 100 S. Ct. 915, 920 -22

(1980). Mangum does not expressly argue that Arizona’s prohibited possessor statutes are

unconstitutional on their face or as applied. But he does suggest that “[r]elief should be

granted” under article II, § 4 of the Arizona Constitution, which he claims, “affords greater

due process pr otection than the Federal Constitution.” We reject that argument for two

reasons. First, Mangum fails to adequately develop it. S ee Ariz. R. Crim. P. 31.13(c)(1)(vi),

17 A.R.S. Second, the one case Mangum cites, State v. Ault

, 150 Ariz. 459, 724 P.2d 545

(1986), is inapposite, and pertinent Arizona case law refutes his position. S ee Sta te v.

Casey , 205 Ariz. 359, ¶ 11, 71 P.3d 351, 354 (2003) (“The federal and state due process

clauses contain nearly identical language and protect the same interests.”); State v. Kaiser

, 204 Ariz. 514, n.2, 65 P.3d 463, 465 n.2 (App. 2003).

2 This case does not involve a defe ndant who attempted to collaterally attack the

validity of a prior conviction alleged for sentence enhancement or other purposes. S ee State

ex rel. Collins v. Superior Court

, 157 Ariz. 71, 75, 754 P.2d 1346, 1350 (1988) (holding

that “where the record shows defendant was represented by counsel and the conviction is

valid on its face, the defendant is precluded from attempting to undermine the validity of that

conviction by collateral attack”); cf. United States v. Herrell

, 588 F.2d 711, 713 (9th Cir.

1978) (rejecting defendant’s challenge to federal firearms conviction under 18 U.S.C. § 922

5 A.R.S. § 13-3101(A)(6)(d). As the state correctly points out, at the time of his July 2003

arrest on the prohibited possessor charge, Mangum “was serving a 24-month term of

probation pursuant to his [j ustice court] conviction for domestic violence/disorderly

conduct” and, therefore, “was a prohibited possessor at that time.”

¶8 Mangum does no t directly challenge that fact or conclusion, nor does he

expressly argue that the prohibited po ssessor statutes under which he was convicted are

ambiguous or unconstitutional. 1 But, citing S tate v. McCann , 200 Ariz. 27, 21 P.3d 845

(2001), Mangum argues “a prior conviction, used as an element for a new offense, cannot

be satisfied by an underlying conviction that is constitutionally infirm.” 2when his challenge to underlying prior conviction occurred after he possessed firearms and

was based on “non-constitutional grounds”).

6 ¶9 In McCann

, our supreme court held that “a rebuttable presu mption of

regularity attaches to prior convic tions used to enhance a sentence or as an element of a

crime.” 200 Ariz. 27, ¶ 1, 21 P.3d at 846. In so holding, the court explained the new

procedure to be followed:

When the State seeks to use a prior conviction as a sentence

enhancer or as an element of a crime, the State must first prove

the existence of the prior conviction. At that time, the

presumption of regularity attaches to the final judgment. If the

defend a nt presents some credible evidence to overcome the

presumption, the State must fulfill its duty to establish that the

prior conviction was constitutionally obtained.

Id

. ¶ 15. Thus, under M

cCann

, prior, final judgments of conviction are presumed valid. I d

.

¶ 16. But the court “emphasize[d] that [its] ruling does not lessen the burden on the State,

which retains the burden of establishing that a prior con viction is constitutionally valid”

when used “as an element of a crime.” I d

. In addition, the court stated: “In cases in which

a judgment of conviction results from the violation of constitutional rights, the conviction

cannot be used either to est ablish an element of an offense or for purposes of sentence

enhan cement. Thus, prior convictions may be used by the State only if constitutionally

valid.” Id . ¶ 17.

¶10 According to Mangum, McCann “is controlling on the use of a constitutionally

infirm conviction to prove an element of an offense” and, even if n ot controlling, “is the3 At oral argument in this court, the state conceded that Mangum’s prior conviction

technically was an element of the prohibited possessor charge under A.R.S. §§ 13-

3101(A)(6)(d) and 13-3102(A)(4). S ee People v. Qu i ntana

, 707 P.2d 355, 359 (Colo.

1985) (under Colorado’s prohibited possessor statute, “the defendant’s prior conviction is

an element of the crime which the prosecution must prove beyond a reasonable doubt”); see

also State v. Portsche

, 606 N. W.2d 794, 796 (Neb. 2000) (under Nebraska’s prohibited

possessor statute, prior con v iction constituted “material element of being a convicted

felon”). But the state further claimed that evidence of Mangum’s prior conviction was only

needed to establish an historical fact as a backdrop to his probationary status at the time he

possessed a weapon, not to prove guilt or to enhance the sentence.

7 most analogous authority, and its reasoning should apply.” The trial court, Mangum further

asserts, was bound by McCann “and committed r eversible error by failing to dismiss the

prohibited possessor charge in light of [his] unconstitutional underlying conviction.”

¶11 The state does not address, let alone distinguish, the rather broad language in

McCann

. Nor does the state contend that Mangum’s prior domestic violence conviction was

not an essential element of the prohibited possessor charge under §§ 13-3101(A)(6)(d) and

13-3102(A)(4). 3 Rather, emphasizing the clear wording of those statutes, and particularly

the phrase “at the time of possession” in § 13-3101(A)(6)(d), the state asserts its “burden

under A.R.S. §§ [13-]3102(A)(4) and -3101(6) was not to prove the present validity of the

domestic-violence conviction at the time of trial but only to prove [Mangum’s] status as a

domestic-v

iolence probationer at the time that he possessed firearms.” And, the state

further argues, Mangum’s “domestic violence conviction, presumptively valid at the time of

the instant offense, was probative of his status as a domestic-violence probationer regardless

of the subsequent justice-court ruling overturning his guilty plea.”4 Mangum does not argue, and we do not find, that the pertinent statutes are unclear

or reasonably susceptible to different interpretations. Therefore, the rule of lenity does not

apply here, nor does Mangum argue otherwise. S ee State v. Sanchez

, 209 Ariz. 66, ¶ 6, 97

P.3d 891, 893 (App. 2004); S tate v. Fell

, 203 Ariz. 186, ¶ 10, 52 P.3d 218, 221 (App.

2002); see also Lewis

, 445 U.S. at 65, 100 S. Ct. at 920-21 (lenity principle’s “touchstone

. . . is statutory ambiguity” and does not apply when “statute could not be more plain”). B ut

see State v. Gore , 681 P.2d 227, 230 (Wash. 1984) (applying rule of lenity to prohibited

possessor statute that could “be interpreted in two alternative ways”).

8 ¶12 The clear wording of the pertinent statutes supports the state’s argument. 4 Our

role in interpreting a statute is to discern and effect the legislature’s intent. I n re Pima

County Juvenile No. 74802-2 , 164 Ariz. 25, 33, 790 P.2d 723, 731 (1990). “The best and

most reliable index of a statute’s meaning is its language and, where the language is clear and

unequivocal, it is determinative of a statute’s construction.” Id.; see also State v. Gomez

,

212 Ariz. 55, ¶ 11, 127 P.3d 873, 875 (2006) (when statutor y language “is ‘clear and

unambiguous,’ and thus subject to only one reas onable meaning, we . . . apply[] the

language without using other means of statutory construction”), quoting Calik v. Kongable

,

195 Ariz. 496, ¶ 10, 990 P.2d 1055, 1057 (1999); State v. Sepahi

, 206 Ariz. 321, ¶ 16, 78

P.3d 732, 735 (2003) (“In the end, a statute’s language is the most reliable index of its

meaning.”).

¶13 Using plain, unambiguous language, the legislature chose to make “the time

of possession” the only relevant point at which the defendant must have been “serving a term

of probation pursuant to a conviction for a domestic violence offense.” § 13-3101(A)(6)(d).

The legislature did not expressly require a deter mination that a prior conviction be9

constitutionally valid in order for it to support a prohibited possessor charge under that

statute. Nor can we infer any such legislative intent from the statutory wording or scheme.

And, even if it were somehow relevant, no pertinent legislative history has been cited to or

found by us.

¶14 In § 13-3101(A)(6), the legislature provided several separate and independent

definition s of a “[p]rohibited possessor.” Under subsection (b), the definition includes a

person “[w]ho has been convicted within or without this state of a felony.” In contrast,

subsection (d) alternatively defines a prohibited possessor as, inter alia, a person “[w]ho is

at the time of possession serving a term of probation pursuant to a conviction for a domestic

violence offense as defined in § 13-3601 or a felony offense, parole, community supervision,

work furlough, home arrest or release on any other basis.” As noted earlier, Mangum was

charged with and convicted of prohibited possession based solely on his having “knowingly

possessed a deadly weapon, while serving a term of probation” on his misdemeanor domestic

violence conviction. In other words, Mangum’s status offense fell within subsection (d), not

(b), of § 13-3101(A)(6).

¶15 Related statutes in pari materia or subsections of a single statute must be “read

together and harmonized to avoid rendering any word, clause or sentence superf luous.”

State v. Story , 206 Ariz. 47, ¶ 13, 75 P.3d 137, 141 (App. 2003); s ee also State ex rel.

Dep’t of Econ. Sec. v. Hayden

, 210 A riz. 522, ¶ 7, 115 P.3d 116, 117 (2005); S tate v.

Rodriguez

, 153 Ariz. 182, 186, 735 P.2d 792, 796 (1987). Reading § 13-3101(A)(6) as a10

whole and harmonizing subsections (b) and (d), we conclude the legislature clearly intended

to focus in subsection (d) only on persons on release status, including probationers, not on

the broader category of prior felons already covered in subsection (b). Thus, even if the

validity of a predicate conviction were pertinent to a charge under subsection (b), an issue

we need not address or decide here, we have no reason to believe that i s pertinent or

required under subsection (d).

¶16 Based on this statutory scheme and the clear, unambiguous wording of

subsection (d), we agree with the state that the prohibited possessor charge on which

Mangum was convicted is essentially a status offense, and at the time of his arrest, Mangum

“was bound by his [as yet] unchallenged guilty plea [in justice court] and by the probation

imposed as a result of the plea.” At the time of his arrest and indictment on the prohibited

possessor charge, Mangu m had not yet contested, let alone successfully challenged on

constitutional or any other grounds, his guilty plea and convic tion on the misdemeanor

domestic violence charge. Only later did that occur. Under these circumstances, as the state

correctly notes, Mangum’s “domestic violence conviction enjoyed the [ McCann ]

presumption of regularity throughout [his] probation term and until t he [justice] court

subsequently vacated the conviction.” Because Mangum was “at the time of [his weapons]

possession serving a term of probation pursuant to a [domestic violence] conviction,” § 13-

3101(A)(6)(d), the trial court did not err in denying his motion to dismiss the prohibited11

possessor charge, despite the justice court’s ultimately having vac ated the underlying

conviction on constitutional grounds before this case went to trial.

¶17 This conclusion, however, must be further reconciled with M cCann

. As noted

earlier, the court there said that the state may use prior convictions as an element of a crime

“only if constitutionally valid.” 200 Ariz. 27, ¶ 17, 21 P.3d at 849. And, “[i]f the defendant

presents some credible evidence to overcome the presumption [of regularity], the State must

fulfill its duty to establish that the prior conviction was constitutionally obtained.” I d

. ¶ 15.

We, of course, are not at liberty to disregard McCann

. See State v. Smyers

, 207 Ariz. 314,

n.4, 86 P.3d 370, 374 n.4 (2004). But we find M cCann distinguishable and not controlling

here.

¶18 McCann involved a charge of aggr avated driving under the influence of an

intoxicant (DUI), not a prohibited possessor charge or other status offense. The aggravated

DUI charge in McCann included as an element, and therefore required the state to prove

beyond a reas onable doubt, prior DUI convictions. S ee A.R.S. § 28-1383(A)(2). In

contrast, the crux of a prohibited possessor char g e under § 13-3101(A)(6)(d), unlike

subsection (b), is not a prior conviction, but rather, the defendant’s probationary or other

release status at the time of the weapons possession.

¶19 A pair of Hawaii cases illustrates this distinction. In S tate v. Lobendahn

, 784

P.2d 872, 873 (Haw. 1989), the Hawaii Supreme Court interpreted a statute similar to § 13-

3101(A)(6)(b) and concluded that, because the defendant’s “status was that of a convicted12

felon at the time he possessed the firearm and ammunition,” “[s]uch possession was unlawful

and the subsequent reversal of the [underlying] convi ction does not then render such

possession lawful.” In a subsequent case that more closely parallels McCann

, the Hawaii

court concluded that the term “convicted” in that state’s “habitual DUI” statute requires a

showing of at least three “prior valid DUI conviction[s].” State v. Shimabukuro , 60 P.3d

274, 277 (Haw. 2002) (emphasis added). The defendant in that case, and at least implicitly

the court, distinguished Lobendahn on the basis that the prohibited possessor statute at issue

there “converts a lawful act (possessing a firearm and ammunition) into an unlawful act

solely by reason of a person’s status, whereas, ‘by contrast, [Hawaii’s habitual DUI statute]

applies to the offense of driving while intoxicated, which is per se a criminal act.’” Id . at

276; see also id. at 277 n.11. Differentiating a prohibited possessor “status” offense from

the habitual DUI char ge at issue in S himabukuro

, the concurring justices (in what is

essentially the majority opinion) als o noted that the Hawaii legislature had “created an

escalating se ntencing scheme keyed to the defendant’s degree of recidivism.” I d

. at 280

(Levinson, J., co ncurring). Under that scheme, the justices further observed, “actual

culpability for a fourth DUI offense presupposed actual culpability for three prior DUI

offenses.” Id.

¶20 Arizona’s aggravated DUI statute is similar in purpose and effect to Hawaii’s

habitual DUI law. The court’s statement in M cCann that “prior convictions may be used by

the State only if constitutionally valid” was specifically made in the context of an aggravated13

DUI prosecution, in which the number of prior DUI convictions directly affects the

classification of and sentencing for the repeated offense. 200 Ariz. 27, ¶ 17, 21 P.3d at 849;

compare A.R.S. § 28-1381(A), (C), (I), (K) (classifying DUI as class one misdemeanor and

prescribing harsher sentence for second violation), with A.R.S. § 28-1383(A), (D), (E), (L)

(classifying aggravated DUI as class four felony and prescribing increa singly harsher

sentences for repeat offenders); see State v. Cramer

, 192 Ariz. 150, ¶ 17, 962 P.2d 224, 228

(App. 1998) (purpose of aggravated DUI statute “is to impose greater punishment” on person

who commits DUI in clear defiance of prior administrative orders). In addition, the court

stated in McCann that its “holding [was] limited; it changes on ly the presumption that

attaches to prior final judgments.” 200 Ariz. 27, ¶ 16, 21 P.3d at 849.

¶21 In light of the court’s limited holding and the contex t in which the court’s

other statements in McCann were mad e, we do not believe the court there intended to

dictate the outcome on the much different issue posed here or to encompass all situations

in which a prio r conviction’s existence is relevant only to establish one’s probationary

status. Nor do we have any reason to believe that the court in McCann implicitly rejected

the views of the United States Supreme Court and most state courts that have specifically

addressed the precise issue we face in cases that involved pr ohibited possessor status

offenses. See ¶¶ 22-25, 30-32, infra

.

¶22 In sum, McCann does not compel dismissal of the prohibited possessor charge

in this case. And dismissal would have been inconsistent with not only federal case law but5 That statute, enacted as part of the Omnibus Crime Control and Safe Streets Act of

1968, prohibited any person who “has been convicted by a court of the United States or of

a State

. . . of a felony” from possessing a firearm. The statute was repealed in 1986 by Pub.

L. 99-308, § 104(b), 100 Stat. 459. The current federal firearms statute is codified at 18

U.S.C. § 922(g)(1), with an exception set forth in 18 U.S.C. § 921(a)(20).

14 also the majority view of other state courts. In L ewis v. United States

, 445 U.S. 55, 56, 100

S. Ct. 915, 916 (1980), the United States Supreme Court addressed “the question whether

a defendant’s exta nt prior conviction, flawed because he was without counsel, . . . may

c onstitute the predicate for a subsequent conviction under [the former federal fir earms

statute, 18 U.S.C. app.] § 1202(a)(1)” (1976). 5 Based primarily on the statute’s clear

language and “plain meaning,” the Co urt concluded that “the fact of a felony conviction

imposes a firearm disability until the conviction is vacated or t he felon is relieved of his

disability by some affirmative action.” 445 U.S. at 60-61, 100 S. Ct. at 918. The Court

“view[ed] the language Congress chose as consistent with the common-sense notion that a

disability based upon one’s status as a convicted felon should cease only when the

conviction upon which that status depends has been vacated.” Id . at 61 n.5, 100 S. Ct. at

918 n.5.

¶23 The Court in Lewis noted that the federal firearms statute contained “[n]o

exception . . . for a person whose outstanding felony conviction ultimately might turn out

to be invalid for any reason.” I d

. at 62, 100 S. Ct. at 919. Accordingly, the Court held that

the statute “prohibits a felon from possessing a firearm despite the fact that the predicate

felony may be subject to collateral attack on constitutional grounds.” I d

. at 65, 100 S. Ct.15

at 921. In so holding, the Court distinguished three prior cases in which it had disallowed

use of constitutionally invalid convictions “to impeach the general credibility of the

defendant,” to “sentenc[e] a defendant after a subsequent conviction,” and to enhance

“punishment under a State’s recidivist statute.” I d

. at 59-60, 100 S. Ct. at 918, citing Loper

v. Beto , 405 U.S. 473, 92 S. Ct. 1014 (1972); United States v. Tucker , 404 U.S. 443, 92

S. Ct. 589 (1972); Burgett v. Texas , 389 U.S. 109, 88 S. Ct. 258 (1967).

¶24 Lewis is factually distinguishable from this case, involved a federal statute, and

“is not binding upon” our interpretation of Arizona’s prohibited possessor laws. S tate v.

Portsche

, 606 N.W.2d 794, 801 (Neb. 2000); see also State v. Gore , 681 P.2d 227, 231

(Wash. 1984) ( Lewis “is not controlling in our interpretation of a state statute”). But “the

Supreme Court’s interpretation of a similar federal statute is persuasive authority.” 681 P.2d

at 231; see also In re Estate of Walton , 164 Ariz. 498, 500, 794 P.2d 131, 133 (1990)

(“Federal interpretations are ‘persuasive’ when Arizona courts interpret our state

counterparts to federal statutes.”); Canady v. Prescott Canyon Estates Homeowners Ass’n

,

204 Ariz. 91, n.3, 60 P.3d 231, 233 n.3 (App. 2002) (when provisions of state statute “are

virtually identical to those provisions of the federal Act, federal case authority is persuasive

in interpreting Arizona’s statute”).

¶25 We find Lewis particularly persuasive for at least two reasons. First, just as

“[t]he federal gun laws

. . . focus[ed] not on reliability, but on the mere fact of conviction,

or even indictment, in order to keep firearms away from potentially dangerous persons,” 4456 The Court in Lewis rejected as “extreme” any argument (not made by the government

in that case) that the federal statute proscribed firearms possession by “even a person whose

predicate conviction in the interim had been finally reversed on appeal and thus no longer

was outstanding.” 445 U.S. at 61 n.5, 100 S. Ct. at 918 n.5; s ee also Dickerson v. New

Banner Inst., Inc.

, 460 U.S. 103, 115, 103 S. Ct. 986, 993 (1983); State v. Gomez

, 212

Ariz. 55, ¶ 16, 127 P.3d 873, 876 (2006). In other words, the prohibited possessor charge

in Lewis presumably would not have stood had the underlying, predicate conviction been

reversed or vacated before the defendant committed the weapons offense. That, however,

is not the situation presented in this case.

16 U.S. at 67, 100 S. Ct. at 922, the Arizona statute at issue here, § 13-3101(A)(6)(d), focuses

on the release status of the defendant at the time of possession, not on the reliability of the

underlying conviction that led to that status. Second, just as the Court in L ewis found “[n]o

[statutory] exception

. . . for a person whose outstanding felony conviction ultimately might

turn out to be invalid for any reason,” 445 U.S. at 62, 100 S. Ct. at 919, we similarly find

no such exception in the Arizona statutes. 6 C f. Turk v. White

, 116 F.3d 1264, 1268 (9th

C ir. 1997) (conviction for new offense affirmed when statutes “d[id] not require that the

[predicate] conviction and sentence be a valid one” a nd “did not exclude invalid

convictions”).

¶26 Our supreme court in McCann did not cite or address Lewis , having had no

reason to do so. In a more recent case, however, the court found some support in L ewis for

its holding that “a dismissed indictment, like a reversed conviction, does not disqualify a

defendant from m a ndatory probation” under Proposition 200, codified as A.R.S. § 13-

901.01. State v. Gomez , 212 Ariz. 55, ¶ 2, 127 P.3d 873, 874 (2006); see also id. ¶¶ 29,

32. In so holding, the court in G omez noted the long-standing rule that “when a defendant17

faces an increased sentence based on the fact of a prior conviction , the reversal of a

conviction precludes its use to increase the defendant’s sentence.” 212 Ariz. 55, ¶ 15, 127

P.3d at 876. The prior cases, the court said, “indicate that a defendant ‘has been convicted’

of a prior offense for purposes of a sentencing enhancement only if, at the time of the later

sentence, there is an existing conviction—not a prior conviction that has been reversed or

vacated.” Id

.

¶27 For present purposes, two things stand out in Gomez and distinguish it from

this case. First, Gomez essentially involved the effect of a prior, but dismissed, indictment

for sentencing purposes. Like M cCann

, Gomez did not involve a prohibited possessor status

offense and did not address the issue posed here. Second, the focus of the court’s inquiry

in Gomez was “the time of sentencing for the Proposition 200 drug offense.” 212 Ariz. 55,

¶ 29, 127 P.3d at 878. As noted earlier, however, § 13-3101(A)(6)(d) focuses on “the time

of possession” of a weapon.

¶28 Although the court in Gomez did not cite or discuss McCann , it did refer to

Lewis and expressed no disagreement with the Supreme Court’s analysis or conclusion. 212

Ariz. 55, ¶ 16, 127 P.3d at 876. As the court in G omez noted, the Lewis Court “recognized

that a federal statute prohibiting the possession of firearms by a person who ‘has been

convicted’ of a felony does not apply if the predicate conviction has been reversed on appeal

and is no longer outstanding.” 212 Ariz. 55, ¶ 16, 127 P.3d at 876, citing Lewis

, 445 U.S.

at 60-61 and n.5, 100 S. Ct. at 918 and n.5. But that qualification to the holding in L ewis18

clearly was limited to situations in which the defendant’s prior conviction has been reversed

or set aside before the defendant possess es a weapon. S ee n.6, supra

. That is not the

situation here. Therefore, as Lewis held and as the court in Gomez recognized, “a felony

conviction imposes a firearm disability until the conviction is vacated or the felon is relieved

of the disability by some affirmative act ion, such as a qualifying pardon.” 212 Ariz. 55,

¶ 16, 127 P.3d at 876, citing Lewis , 445 U.S. at 60-61, 100 S. Ct. at 918.

¶29 Federal courts, of course, are bound to follow Lewis and have done so. S ee,

e.g., United States v. Padilla , 387 F.3d 1087, 1092 (9th Cir. 2004) (even when predicate

felony conviction void ab initio, such convicti on must be invalidated before felon takes

possession of firearm; later relief will not invalidate felon-in-possession conviction); Burrell

v. United States , 384 F.3d 22, 27-28 (2d Cir. 2004) (petitioner not entitled to relief when

predicate felony conviction not set aside until after felon-in-possession conviction); United

States v. Marks

, 379 F.3d 1114, 1119 (9th Cir. 2004) (“The focus of the inquiry under [the

federal firearms statutes] is whether someone has been convicted of a felony under state law,

not whether that co nviction is constitutionally valid, nor whether it may be used as a

predicate conviction for subsequent state prosecutions. ”); U nited States v. Wallace

, 280

F.3d 781, 784 n.1 (7th Cir. 2002); United States v. Snyder

, 235 F.3d 42, 52-53 (1st Cir.

2000); United States v. Kahoe , 134 F.3d 1230, 1233-34 (4th Cir. 1998) (although “a

conviction that has been set aside can no longer be disabling,” a conviction is still “disabling

between the time it was obtained and the time it was set aside”).7 See People v. Quintana

, 707 P.2d 35 5, 360 (Colo. 1985) (holding “that a prior

conviction obtained in violation of a defendant’s constitutional rights cannot be used as the

underlying conviction in a prosecution under Colorado’s felon with a gun statute”); State

v. Portsche

, 606 N.W.2d 794, 796 (Neb. 2000) (defendant’s “prior uncounseled conviction

could not be used to establish that he was a convicted felon for purposes of [Nebr aska’s

felon-in-possession statute]”); State v. Gore

, 681 P.2d 227, 228 (Wash. 1984) (defendant’s

“conviction for being a felon in possession of a firearm must be vacated when his predicate

felony conviction has been reversed for insufficient evidence”).

19 ¶30 In addition, although some out-of-state cases arguably support Mangum’s

position, 7 most state courts that have addressed issues similar to that presented here have

followed the reasoning of Lewis and upheld prohibited possessor convictions even when the

defendant’s felon status was based on a constitutionally infirm predicate conviction. See,

e.g., Clark v. State

, 739 P.2d 777, 781 (Alaska Ct. App. 1987) (following Lewis

, concluding

“later reversal of [defendant’s] former conviction was not a defense to the felon in

possession charge,” and noting legislature may “require that a person who has been

convicted of a felony wait until that conviction has been reversed on appeal before being

allowed to possess a concealable firearm”); Reynolds v. State

, 712 S.W.2d 329, 331 (Ark.

Ct. App. 1986) (concluding statute “prohibits a person convicted of a felony from possessing

a firearm, regardless of the fact that the prior felony conviction is subject to collateral attack,

and that this prohibition continues until the conviction is either successfully attacked and

set aside, or a specific pardon is granted”); People v. Harty

, 219 Cal. Rptr. 85, 87, 88 (Ct.

App. 1985) (“the possible invalidity of an underlying prior felony conviction provides no

defense to possession of a concealable weapon by a felon”; although a previously convicted8 See also State v. Watie

, 573 P.2d 1034, 1036 (Kan. 1978) (“[P]ossession of the type

of firearm proscribed in [the] s tatute is prohibited to the defendant-appellant during the

pendency of his appeal until such time as his conviction is set aside.”); State v. Williams

, 392 So. 2d 448, 450 (La. 1980) (“A person charged under [the prohibited possessor statute]

cannot attack the predi cate felony on collateral constitutional grounds.”); P eople v.

Cornish

, 427 N.Y.S.2d 564, 567 (N. Y. App. Div. 1980) (following L ewis and denying

motion to dismiss indictment when defendant, “before obtaining a firearm,” failed to “obtain

relief from a prior unconstitutionally obtained conviction”); State v. Taniguchi

, 656 N.E.2d

1286, 1288 (Ohio 1995) (conviction “for having a weapon while unde r disability is not

precluded when there is an acquittal on, or dismissal of, the indictment which had formed

the basis for the charge of having a weapon while under disability”); Bailey v. Lampert

, 125

P.3d 771, 775 (Or. Ct. App. 2005), rev. allowed

, 136 P.3d 742 (Or. 2006) (“The prohibition

against firearm possession in [Oregon’s statute] focuses on a person’s status as a convicted

felon when he or she possesses a firearm, not on the subsequent validity of that status.”).

20 felon may challenge the validity of the prior conviction in the court that entered that

judgment, “he may not resort to self help by first obtaining and possessing [a] firearm, and

thereafter try to assert the invalidity of the prior conviction as a defense to a [prohibited

possessor] prosecution”); State v. Lobendahn

, 784 P.2d 872, 873 (Ha w. 1989)

(“[Defendant’s] status was that of a convicted felon at the time he possessed the firearm and

ammunition. Such possession was unlawful and the subsequent reversal of the conviction

does not then render such possession lawful.”); Small v. State

, 623 P.2d 1200, 1205 (Wyo.

1981) (“Whatever else may be said a bout the validity of a prior uncounseled felony

conviction, constitutionally infirm, it is clear under Lewis that it is at least a valid conviction

for purposes of a statute prohibiting the possession of firearms by a previously convicted and

unpardoned felon.”). 821

¶31 Most if not all of those cases involved state statutes that broadly define one’s

prohibited possessor status based on prior felony convictions, as does § 13-3101(A)(6)(b),

rather than on the more limited bas is of release status, as does § 13-3101(A)(6)(d).

Nonetheless, those cases support the trial court’s ruling and our conclusion here. Illustrative

of the majority view is Clark , in which the Alaska court stated:

It appears to us that sound policy supports what we

perceive to be the inte nt of the legislature. . . . We see no

reason why the legislature would want to encourage a person

who has formerly been convicted of a felony to gamble by

possessing

a concealable firearm, hoping that if he or she is

arrested for

being a felon in possession that he or she can

defend against that offense by having the former conviction set

aside.

739 P.2d at 781; see also State v. Snyder

, 673 So. 2d 9, 10 (Fla. 1996) (“[T]he fact that the

predicate conviction is pending on appeal is irrelevant to the legislative purpose of protecting

the public by preventing convicted felons from possessing firearms.”). By amending § 13-

3101(A)(6)(d) in 2000 to include persons serving a term of probation on a misdemeanor

domestic violence conviction, 2000 Ariz. Sess. Laws, ch. 143, § 1, the legislature apparently

recognized similar concerns and manifested an intent “to protect not only the citizens of this

state generally, but victims of domestic violence in particular,” as the state argues.

¶32 The out-of-state cases typically involved a scenario in which the defendant’s

underlying conviction was reversed only after the prohibited possessor conviction. Here, in

contrast, the justice court upheld Mangum’s challenge and vacated his underlying domestic

violence conviction before Mangum was tried on or convicted of the prohibited possessor22

charge in this case. But we find such factual distinctions immaterial when, as here, the

defendant’s prior conviction was intact at the time of the illegal possession of a weapon, and

that prohibition remained “until the conviction [was] vacated” or the disability was relieved

in some other fashion. Lewis

, 445 U.S. at 60, 100 S. Ct. at 918; cf. State v. Cramer , 192

Ariz. 150, ¶¶ 11, 16, 17, 962 P.2d 224, 227, 228 (App. 1998) (rejecting defendant’s

argument in aggravated DUI case that “the license revocation order was void because later

post-convicti on relief proceedings vacated the underlying reckless driving conviction,”

recognizing “distinction between a void judgment or order and one that is voidable,” and

concluding that “until ADOT vacated the revocation order, it wa s valid and binding and

defendant was required to obey it”).

¶33 People v. Loomis

, 42 Cal. Rptr. 124 (Ct. App. 1965), more closely resembles

our case on its facts and also supports our conclusion. In L oomis

, the defendant was on

probation for a prior conviction at the time he illegally possessed a weapon. I d

. at 125.

Before the defendant was charged with the weapons offense, a federal court set aside his

prior conviction. I

d

. On that basis, the defendant argued “the California court [was]

without jurisdiction to consider his federal conviction as anything but nonexistent.” I d

. The

court in Loomis disagreed, noting that the defendant’s “status at the time he possessed the

gun is the critical iss ue,” “[a]t that time he was a person who had been convicted of a

felony,” and “[h]is status after t he date upon which he committed the offense here in

question or at the time of trial is immaterial.” Id . at 126.23

¶34 As was true of the defendant in Loomis , at the time of his arrest on the

prohibited possessor charge, Mangum had not even challenged, let alone obtained reversal

of, his conviction on the misdemeanor domestic violence charge. In short, based solely on

Mangum’s probationary status at the time of his weapons offense, Mangum’s “possession

was unlawful and the subsequent reversal of the [underlying] conviction d oes not then

render such possession lawful.” L obendahn

, 784 P.2d at 873. For all of these reasons, the

trial court did not err in denying Mangum’s motion to dismiss the charge.

II.

¶35 Our rejectio n of Mangum’s primary argument also leads us to summarily

dispose of his other contentions. The trial court did not violate Mangum’s constitutional

rights by failing to find tha t, but for the ineffective assistance of his counsel (IAC) in the

underlying justice court proceedings, he would not have been on probation in July 2003.

Nor did the court err by fail ing to dismiss this case on that basis. As noted above, the

invalidity of Mangum’s domestic violence conviction, regardless of the source or cause, is

immaterial to the pro hibited possessor charge here. Any IAC claims were raisable, and

indeed were successfully urged, only in the justice court, where the ineffective assistance and

domestic violence conviction occurred. S ee Ariz. R. Crim. P. 32.3, 32.4(a), 17 A.R.S. And

appellate review of any justice court rulings generally is in superior court, not this court. S ee

Ariz. Const. art. VI, § 16; A.R.S. §§ 22-371, 22-375; State v. Holland

, 153 Ariz. 536, 538,

738 P.2d 1143, 1145 (App. 1987).24

¶36 The trial court also did not err in denying Mangum’s motion for judgment of

acquittal pursuant to Rule 20, Ariz. R. Crim. P., 17 A.R.S., nor is the evidence insufficient

to support the conviction. For reasons already explained, the state was not required to prove

at trial that Mangum’s prohibited possessor status remained unchanged after July 2003. On

the relevant triable issues, Mangum’s probation officer testified that, at the time he found

weapons in Mangum’s possession, “[h]e was on probation for a domestic violence disorderly

conduct [conviction].” The officer also testified without objection that, “[i]n domestic

violence cases, there’s a statute that says they cannot have weapons” and that “in this case

we are dealing with a domestic violence offense .” Viewed in the light most favorable to

sustaining the conviction, State v. Garza

, 196 Ariz. 210, ¶ 2, 994 P.2d 1025, 1026 (App.

1999), that evidence was substantial and sufficiently supported the jury’s verdict. See id

.

¶ 3.

¶37 Finally, contrary to Mangum’s a rguments, the trial court did not commit

constitutional error by precluding any evidence at trial on the reversal or invalidity of his

domestic violence conviction or by failing to sua sponte instruct the jury “on his theory of

the case regarding an invalid conviction.” We agree with the state that these claims also are

“based on the faulty premise that the State was required to prove the ongoing validity of

[Mangum’s] domestic violence conviction.” Once the trial court ruled on the purely legal

issue raised in Mangum’s motion to dismiss the prohibited possessor charge based on the25

invalidity of the underlying conviction, a ruling we now uphold on appeal, any evidence,

argument, or jury instructions on that issue at trial were properly precluded as irrelevant.

DISPOSITION

¶38 Mangum’s conviction, suspension of imposition of sentence, and placement

on probation are affirmed.

___________ _________________________ JOHN PELANDER, Chief Judge

CONCURRING:

____________________________________ JOSEPH W. HOWARD, Presiding Judge

____________________________________ GARYE L. VÁSQUEZ, Judge