                                  IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


                      STATE OF ARIZONA, Appellee,

                                     v.

               RICHARD TAYLOR BURKE, SR., Appellant.

                           No. 1 CA-CR 14-0438
                             FILED 10-8-2015


           Appeal from the Superior Court in Maricopa County
                        No. LC2013-000632-001
               The Honorable Crane McClennen, Judge

                                AFFIRMED


                                COUNSEL

Scottsdale City Prosecutor’s Office, Scottsdale
By Kenneth M. Flint
Counsel for Appellee

Henze Cook Murphy, PLLC, Phoenix
By Tom Henze, Janey Henze Cook, Kiersten A. Murphy
Counsel for Appellant
                              STATE v. BURKE
                             Opinion of the Court



                                   OPINION

Judge Donn Kessler delivered the opinion of the Court, in which Presiding
Judge Jon W. Thompson and Judge Samuel A. Thumma joined.


K E S S L E R, Judge:

¶1             Richard Taylor Burke, Sr. (“Burke”) appeals from a judgment
of the Maricopa County Superior Court affirming his conviction for wilfully
refusing or failing to comply with a lawful order or direction of a police
officer in violation of Arizona Revised Statutes (“A.R.S.”) section 28-622(A)
(2012).1     On appeal, Burke argues that A.R.S. § 28-622(A) is
unconstitutionally vague on its face.         Because the statute is not
unconstitutionally vague on its face, we affirm.

                FACTUAL AND PROCEDURAL HISTORY

¶2             This case arises out of a routine traffic stop. After Burke
allegedly failed to stop at a stop sign, a police officer pulled Burke over,
asked him for his license and registration, and directed him not to move his
vehicle. Burke disobeyed the instructions, drove his vehicle to the side of
the roadway, called 911, and eventually exited his vehicle after additional
officers arrived on the scene. Burke was arrested after exiting his vehicle.
After a bench trial in Scottsdale Municipal Court, Burke was convicted of
wilfully refusing or failing to comply with a lawful order or direction of a
police officer. See A.R.S. § 28-622(A). Burke appealed to the Maricopa
County Superior Court arguing, among other things, the statute is
unconstitutionally vague and overbroad. After briefing and hearing oral
argument, the superior court affirmed.

¶3             Burke timely appealed. Our jurisdiction is limited to
reviewing the facial validity of A.R.S. § 28-622(A). See A.R.S. § 22-375(A)
(Supp. 2015) (“An appeal may be taken . . . from a final judgment of the
superior court in an action appealed from a justice of the peace or municipal
court, if the action involves the validity of a . . . statute.”); see also State v.
Kaiser, 204 Ariz. 514, 516-17, ¶ 4, 65 P.3d 463, 465-66 (App. 2003) (“Because
this matter originated in municipal court, our jurisdiction is limited to a


1 We cite to the current versions of statutes when no changes material to
this opinion have since occurred.


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                              STATE v. BURKE
                             Opinion of the Court

review of the facial validity of the [statute].”); State v. Irving, 165 Ariz. 219,
221, 797 P.2d 1237, 1239 (App. 1990) (“[A.R.S. § 22-375] limit[s] this court’s
review to the facial validity of [a challenged statute]. Its application to the
specific facts of [a] case is beyond our review.”). In an appeal from a limited
jurisdiction court, our jurisdiction is limited to facial challenges in this
context, and if we determine that the statute is facially valid, we will not
address whether it is unconstitutional as applied. State v. McMahon, 201
Ariz. 548, 550, ¶ 3, 38 P.3d 1213, 1215 (App. 2002); see also Hancock v. State,
31 Ariz. 389, 396-97, 254 P. 225, 227-28 (1927) (holding that review was
limited to facial constitutional challenge to a statute on appeal from
superior court review of a justice court decision).

                          STANDARD OF REVIEW

¶4            We review the constitutionality of statutes de novo. Thiele v.
City of Phoenix, 232 Ariz. 40, 42, ¶ 11, 301 P.3d 206, 208 (App. 2013). “In
reviewing a challenge to a statute, we presume that the statute is
constitutional and must construe it, if possible, to give it a constitutional
meaning.” McMahon, 201 Ariz. at 550, ¶ 5, 38 P.3d at 1215; see also Graville
v. Dodge, 195 Ariz. 119, 123, ¶ 17, 985 P.2d 604, 608 (App. 1999) (“We . . . will
not declare an act of the legislature unconstitutional unless convinced
beyond a reasonable doubt that it conflicts with the federal or state
constitutions.”). “It is the person challenging the enactment who bears the
burden of establishing the contrary proposition.” Kaiser, 204 Ariz. at 517, ¶
8, 65 P.3d at 466. As applicable here, “to successfully challenge the facial
validity of a statute, the challenging party must demonstrate no
circumstances exist under which the challenged statute would be found
valid.” Lisa K. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 173, 177, ¶ 8, 281 P.3d
1041, 1045 (App. 2012).2




2 Burke cites City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999), to argue
that he does not have to show there is no set of circumstances under which
the statute would be valid to prevail on a facial challenge. Burke is
incorrect. The footnote in Morales only indicates that states might be free to
adopt a different test to determine facial invalidity for vagueness. 527 U.S.
at 55 n.22. Arizona generally follows the rule that “the challenging party
must demonstrate no circumstances exist under which the challenged
statute would be found valid” to prevail on a facial challenge. Lisa K., 230
Ariz. at 177, ¶ 8, 281 P.3d at 1045.


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                             STATE v. BURKE
                            Opinion of the Court

                               DISCUSSION

I.     STANDING

¶5             Burke argues that A.R.S. § 28-622(A) is unconstitutionally
vague on its face, and as a result, it cannot properly provide a basis for a
criminal conviction. As asserted by the State, before we can determine
whether the statute is facially valid, we must first address whether Burke
has standing to challenge the constitutionality of the statute. See Kaiser, 204
Ariz. at 517, ¶ 5, 65 P.3d at 466. “Ordinarily, a defendant may not challenge
a statute as being impermissibly vague or overbroad where the statute has
given him fair notice of the criminality of his own conduct, even though the
statute may be unconstitutional when applied to someone else.” McMahon,
201 Ariz. at 550, ¶ 6, 38 P.3d at 1215. However, as we made clear in
McMahon, we will not apply this standing requirement when the defendant
is challenging the statute on its face, rather than as applied to him. Id. In
this case, Burke can and has only challenged the statute as being
unconstitutionally vague on its face, that is, he argues it is incapable of any
valid application based on an alleged lack of limiting language, or more
specifically, a temporal descriptor. Because Burke challenges the statute as
vague and overbroad in all circumstances, he has standing to press this
appeal. See id.

II.    VAGUENESS

¶6             “The due process clause of the fourteenth amendment does
not permit the state to deprive a person of liberty for violating a statute
whose terms are ‘so vague, indefinite and uncertain’ that their meaning
cannot be reasonably ascertained.” State v. Western, 168 Ariz. 169, 171, 812
P.2d 987, 989 (1991) (citation omitted). “A statute is unconstitutionally
vague if it does not give persons of ordinary intelligence a reasonable
opportunity to learn what it prohibits and does not provide explicit
instructions for those who will apply it.” McMahon, 201 Ariz. at 551, ¶ 7, 38
P.3d at 1216. “Due process does not require, however, that a statute be
drafted with absolute precision. ‘It requires only that the language of a
statute convey a definite warning of the proscribed conduct.’” Id. at ¶ 8
(internal citations omitted); see Kaiser, 204 Ariz. at 517, ¶ 9, 65 P.3d at 466
(“[T]he requirement of a ‘fair and definite warning’ does not necessitate
‘perfect notice or absolute precision’ of language.” (quoting State v. Singer,
190 Ariz. 48, 50, 945 P.2d 359, 361 (App. 1997)). In applying these principles
to a facial attack on a statute, Burke must show that under no set of
circumstances can the statute be constitutionally valid. See Lisa K., 230 Ariz.
at 177, ¶ 8, 281 P.3d at 1045.


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                             STATE v. BURKE
                            Opinion of the Court

       A.     SUFFICIENT DEFINITENESS OF TERMS

              1.     WILFULLY FAIL OR REFUSE TO COMPLY

¶7              Section 28-622(A) provides that “[a] person shall not wilfully
fail or refuse to comply with any lawful order or direction of a police officer
invested by law with authority to direct, control or regulate traffic.” Burke
first maintains that A.R.S. § 28-622(A) is unconstitutionally vague because
the statute’s mens rea, “wilfully,” lacks sufficient definiteness. Burke relies
on State v. Cox, which states, “Arizona criminal law has recognized only
four culpable mental states: intentionally, knowingly, recklessly, and with
criminal negligence.” 217 Ariz. 353, 356, ¶ 16, 174 P.3d 265, 268 (2007); see
also A.R.S. § 13-105(10) (Supp. 2015) (defining four culpable mental states).
Based on this premise, Burke seems to claim that the use of any other term
to describe the mens rea automatically renders the statute void for
vagueness. We disagree.

¶8            Burke’s assertion that the term “wilfully” is ill-defined is
without merit. First, the Arizona Legislature defined the term “wilfully” in
A.R.S. § 1-215(41) (Supp. 2015) as meaning, “with respect to conduct or to a
circumstance described by a statute defining an offense, that a person is
aware or believes that the person’s conduct is of that nature or that the
circumstance exists.” Second, the Legislature used identical language in
A.R.S. § 13-105(10)(b) to define “knowingly.”3 Although the statute
governing failure to comply with a police officer is found in Title 28, see
A.R.S. § 28-622, the statutory definition of knowingly applies to the
construction of offenses found outside of Title 13. See A.R.S. § 13-102(D)
(2010) (“Except as otherwise expressly provided, or unless the context
otherwise requires, the provisions of this title shall govern the construction
of and punishment for any offense defined outside this title.”). Finally,
although dicta, this Court has previously explained that “[t]he definition of
‘wilfully’ in A.R.S. § 1-215[(41)] is equivalent to the definition of
‘knowingly’ given in A.R.S. § 13-105[(10)(b)].” State v. Gendron, 166 Ariz.
562, 565, 804 P.2d 95, 98 (App. 1990), vacated in part on other grounds, 168
Ariz. 153, 812 P.2d 626 (1991); see generally Lamb Excavation, Inc. v. Chase
Manhattan Mortg. Corp., 208 Ariz. 478, 482, ¶ 15, 95 P.3d 542, 546 (App. 2004)
(“[W]e find [dicta] persuasive when viewed in combination with the




3The only difference is the addition of a sentence at the end of the definition
of “knowingly” which states that “[i]t does not require any knowledge of
the unlawfulness of the act or omission.” A.R.S. § 13-105(10)(b).


                                      5
                              STATE v. BURKE
                             Opinion of the Court

remainder of the court’s analysis.”), declined to follow on other grounds by
Sourcecorp, Inc. v. Norcutt, 229 Ariz. 270, 274 P.3d 1204 (2012).

¶9             Burke also argues that the phrase “wilfully fail” is a clear
contradiction in terms and encompasses acts of inevitable necessity. Again,
Burke’s argument hinges on the idea that the statute lacks a mens rea
requirement. Contrary to Burke’s assertion, the statute does not punish
individuals for a mere failure to obey; instead, it requires a wilful, or knowing
refusal or failure to comply, which is tantamount to an affirmative act of
rejection. See Kaiser, 204 Ariz. at 518, ¶ 11, 65 P.3d at 467 (“To refuse an
order is an affirmative act of rejection, not a bare failure to obey but a
knowing and deliberate decision to not obey.” (emphasis added)).
Accordingly, the terms “wilful” and “wilfully fail,” as used in the statute,
are not so indefinite as to be considered constitutionally invalid.

¶10           Burke’s argument also fails because he must show that under
no set of circumstances is the statute constitutional for purposes of
vagueness. Although Burke posits hypothetical examples of situations
when a defendant cannot physically obey an order, there are myriad
examples of wilful refusals to obey an order directing action or inaction that
a defendant can physically obey, such as a police officer ordering a driver
to move his vehicle into a parking lot or to stop and the driver simply
continues to drive until the police can stop him. Burke has not shown that
the statute’s use of “wilfully fail” or “refuse to comply” is void for
vagueness on its face.

              2.      LAWFUL ORDER OR DIRECTION

¶11             Next, Burke argues that the phrase “lawful order or direction”
in A.R.S. § 28-622(A) lacks sufficient definiteness such that it is
unconstitutionally vague. To support his argument, Burke relies on City of
Seattle v. Rice, in which the Washington Supreme Court found a municipal
ordinance prohibiting criminal trespass to be unconstitutionally vague. 612
P.2d 792, 731 (Wash. 1980), impliedly overruled by State v. Smith, 759 P.2d 372,
375 (Wash. 1988), as recognized in State v. Harrington, 333 P.3d 410, 423
(Wash. Ct. App. 2014). The court specifically found that the term “lawful
order” was not sufficiently specific to satisfy the due process requirements
of the void for vagueness doctrine. Id. The Washington Supreme Court,
however, has since repudiated the reasoning on which Rice was based, by
determining:

       People of common intelligence need not always guess at what
       a statute means by ‘lawful.’ Presumptively available to all



                                       6
                             STATE v. BURKE
                            Opinion of the Court

       citizens are the statements of law contained in statutes and in
       court rulings. Our cases make clear the important relevance
       of statutory and common law to the meaning of the concept
       of ‘lawfulness’ as used in legislative enactments.

Smith, 759 P.2d at 375. Other jurisdictions have also rejected the holding in
Rice, finding no unconstitutional vagueness in the term “lawful order” or
similar phrases in criminal trespass statutes. See, e.g., State v. Lyons, 802
S.W.2d 590, 592 (Tenn. 1990) (“The term ‘lawful order’ while general in
nature is not vague.”); Johnson v. State, 739 P.2d 781, 783 (Alaska Ct. App.
1987) (“We believe that any possible vagueness that the phrase, ‘after being
lawfully directed [to leave the premises] personally by the person in
charge,’ imports into the statute is cured by literally reading the statute in
light of the applicable mens rea.” (alteration in original)).

¶12            Because the term “lawful order” is not statutorily defined,
“we must follow the plain and natural meaning of the language of the
statute to discover what the legislature intended.” State v. Arthur, 125 Ariz.
153, 155, 608 P.2d 90, 92 (App. 1980); see also State v. Mahaney, 193 Ariz. 566,
568, ¶ 12, 975 P.2d 156, 158 (App. 1999) (“Unless the legislature clearly
expresses an intent to give a term a special meaning, we give the words
used in statutes their plain and ordinary meaning.”); State v. Takacs, 169
Ariz. 392, 395, 819 P.2d 978, 981 (App. 1991) (“A statute is not
unconstitutionally vague because one of its terms is not explicitly
defined.”). The word “lawful” is defined as including “[n]ot contrary to
law” or “permitted by law.” Black’s Law Dictionary 902 (8th ed. 2004); see
also Webster’s II New Riverside University Dictionary 680 (1994) (defining
“lawful” as including “[a]llowed by law,” and “[e]stablished, sanctioned,
or recognized by law.”). “Order” is generally defined as including “[a]
command, direction, or instruction.” Black’s Law Dictionary at 1129; see
also Webster’s II New Riverside University Dictionary at 827 (providing
that the definition for “order” includes “[a]n authoritative indication to be
obeyed” or a “command”). Ultimately, when A.R.S. § 28-622(A) is
interpreted in accordance with the plain and ordinary meaning of its terms,
it requires the individual to comply with a police officer’s instructions that
are, at the time they are issued, authorized by law. Because we believe this
meaning would be evident to a person of reasonable intelligence, we find
the term “lawful order” to be constitutional as written. Because many
police orders can be deemed lawful (e.g., “step out of the car with your
hands up,” or to the person exiting the vehicle, “put down your weapon”),
the facial attack here must fail.




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                             STATE v. BURKE
                            Opinion of the Court

              3.     LIMITING LANGUAGE

¶13           Burke further argues that even if the statute’s terms were
sufficiently definite to make it constitutionally understood by reasonable
persons, its fatal flaw is the lack of specific temporal language regarding
how quickly one must act to comply with the statute’s terms. We agree
with the State that A.R.S. § 28-622(A) does not need a temporal limit to give
persons of ordinary intelligence a reasonable understanding of what the
statute prohibits. To include a time frame would inject rigidity into a law
that requires flexibility for the law to function as intended.

¶14          Furthermore, even if the omission of a temporal limit left
some citizens uncertain about the scope of the proscribed conduct, mere
uncertainty does not rise to the level of unconstitutional vagueness.

       The root of the vagueness doctrine is a rough idea of fairness.
       It is not a principle designed to convert into a constitutional
       dilemma the practical difficulties in drawing criminal statutes
       both general enough to take into account a variety of human
       conduct and sufficiently specific to provide fair warning that
       certain kinds of conduct are prohibited.

Colten v. Kentucky, 407 U.S. 104, 110 (1972). Ultimately, “[i]f a statute gives
notice of prohibited conduct, it is not void for vagueness ‘simply because it
may be difficult to determine how far one can go before the statute is
violated.’” State v. McLamb, 188 Ariz. 1, 5, 932 P.2d 266, 270 (App. 1996)
(quoting State v. Phillips, 178 Ariz. 368, 370, 873 P.2d 706, 708 (App. 1994)).
Ultimately, we find A.R.S. § 28-622(A) is not void for vagueness as its terms
are sufficiently definite and the statute provides persons of ordinary
intelligence with notice of what conduct is proscribed.

       B.     SUFFICIENT GUIDELINES FOR ENFORCEMENT

¶15            Finally, Burke argues that A.R.S. § 28-622(A) is
unconstitutionally vague because it fails to establish minimal guidelines for
enforcement. Burke argues that the omission of a temporal limit provides
individual law enforcement officers with unlimited discretion, opening up
the possibility of discriminatory and arbitrary enforcement. We disagree.

¶16           “When the language is clear, an ordinance ‘is not rendered
unconstitutionally vague because there is a theoretical potential for
arbitrary enforcement’ and ‘some assessment by a law enforcement officer’
may be required.” State v. Putzi, 223 Ariz. 578, 579, ¶ 5, 225 P.3d 1154, 1155
(App. 2010) (quoting McLamb, 188 Ariz. at 6, 932 P.2d at 271). As we have


                                      8
                             STATE v. BURKE
                            Opinion of the Court

previously noted, “[e]ven a clearly worded statute may be susceptible to
selective prosecution.” In re Moises L., 199 Ariz. 432, 434, ¶ 12, 18 P.3d 1231,
1233 (App. 2000). Consequently, “[t]he significant question is whether the
statute defines what is prohibited with reasonable clarity. If it does so, it
will not be reversed over the possibility that it might be arbitrarily
enforced.” Id. at 434-35, ¶ 12, 18 P.3d 1233-34; see also McLamb, 188 Ariz. at
5, 932 P.2d at 270 (“The Constitution only requires that language convey a
sufficiently definite warning as to proscribed conduct when measured by
common understanding and practices. That there will be marginal cases in
which it is difficult to determine the side of the line on which a particular
fact situation falls is no sufficient reason to hold the language too
ambiguous to define a criminal offense.” (quoting State v. Cota, 99 Ariz. 233,
236, 408 P.2d 23, 26 (1965)). “Further, it must be supposed that public
officers will act fairly and impartially and in accordance with their best
judgment, and a statute will not be held unconstitutional because of a
supposed possibility they will not do so.” State v. McDermott, 208 Ariz. 332,
336, ¶ 15, 93 P.3d 532, 536 (App. 2004) (quoting McLamb, 188 Ariz. at 6, 932
P.2d at 271).

¶17            Burke relies on United States ex rel. Newsome v. Malcolm, 492
F.2d 1166 (2d Cir. 1974), Derby v. Town of Hartford, 599 F. Supp. 130 (D. Vt.
1984), and Coates v. City of Cincinnati, 402 U.S. 611 (1971), to support his
argument that the alleged temporal deficiency in A.R.S. § 28-622(A) renders
the statute vague and devoid of guidance to law enforcement and law-
abiding citizens. Because those cases deal with the language and
application of loitering statutes, which are sufficiently different from the
failure to comply with a lawful order statute at issue here, these cases are
unpersuasive. Furthermore, the statutes challenged in those cases dealt
with restrictions on constitutional rights. See Coates, 402 U.S. at 615 (“The
ordinance also violates the constitutional right of free assembly and
association.”); Malcolm, 492 F.2d at 1172 (“Moreover, because the crime
prevention components of loitering statutes are aimed at suspected or
potential rather than incipient or observable conduct, they may conflict
with the deeply rooted Fourth Amendment requirement that arrests must
be predicated on probable cause.”); Derby, 599 F. Supp. at 135 (dealing with
restrictions on the right of freedom of movement). Because Burke does not
argue that A.R.S. § 28-622(A) restricts a constitutional right, and because we
have found that the text of the statute provides reasonably intelligent
individuals with notice of the prohibited conduct, see supra ¶¶ 7-14, we will
not hold it unconstitutionally vague based on a theoretical potential for
arbitrary enforcement.




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                   Opinion of the Court

                     CONCLUSION

¶18   For the foregoing reasons, we affirm.




                         :ama




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