State v. Kurti

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. NICKOLA KURTI, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 12/07/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL 1 CA-CR 10-0080 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Coconino County Cause No. CR2009-0708 The Honorable Dan R. Slayton, Judge AFFIRMED ________________________________________________________________ Coconino County Attorney s Office By Stacy Lynn Krueger Attorneys for Appellee Flagstaff Law Office of Cynthia Leyh Tolleson By Cynthia A. Leyh Attorneys for Appellant ________________________________________________________________ G E M M I L L, Judge ¶1 Nickola Kurti appeals from the superior court s order affirming his conviction and $223 fine for violating Arizona Revised Statutes driving in ( A.R.S. ) excess misdemeanor. of 85 section miles 28-701.02(A)(3) per hour, a (2004), class three For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On January 31, 2009, Kurti was cited for driving approximately 87 miles per hour in a 65 miles per hour speed zone on Justice U.S. Court Highway found 89. Kurti On April guilty of 7, 2009, violating the Flagstaff A.R.S. § 28- 701.02(A)(3), which prohibits driving in excess of 85 miles per hour. The justice court ordered Kurti to pay a $223 fine. ¶3 Kurti appealed the judgment and fine to the superior court. In his memorandum to the superior court, Kurti argued that the state failed to disclose calibration records pertaining to the Radar and Tuning Forks used in the stop, in violation of Arizona Rule of Criminal Procedure 15.1. He also argued that the justice court abused its discretion by basing its guilty decision on Officer Weaver s testimony as to the calibration records, without the actual records being admitted into evidence. Kurti requested the court reverse the justice court s judgment and dismiss the case with prejudice. ¶4 denying On August 31, 2009, the superior court filed an order Kurti relief from justice court s judgment. the conviction and affirming the Kurti timely filed a delayed notice of appeal from the superior court s order. 2 We have jurisdiction pursuant to A.R.S. § 22-375(A) (2002). ANALYSIS ¶5 Kurti contends that A.R.S. § 28-701.02(A)(3) violates the United States Constitution s Due Process Clause because it is unconstitutionally vague on its face. Kurti, however, did not raise this argument before the justice court or the superior court, and usually issues considered fundamental error. raised to for be the waived first time unless on they appeal are constitute See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005)1; see also State v. Alvarez, 213 Ariz. 467, 469, ¶ 7, 143 P.3d 668, 670 (App. 2006) (noting that a hearsay objection does not preserve for appellate review a claim that admission of the evidence violated the Sixth Amendment Confrontation Clause); State v. Holder, 155 Ariz. 83, 85, 745 P.2d 141, 143 (1987) (stating that waiver applies to constitutional error ). the doctrine of On appeal, Kurti does not assert fundamental error and we consider his argument waived. ¶6 Even if his argument is not waived, we conclude that § 28-701.02(A)(3) is not unconstitutionally vague. 1 A statute is For an error to be deemed fundamental, the defendant must show that it goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial. Henderson, 210 Ariz. at 568, ¶ 24, 115 P.3d at 608. In addition, the defendant must show he was prejudiced by the error. Id. at 568-69, ¶ 26, 115 P.3d at 608-09. 3 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. State v. McMahon, 201 Ariz. 548, 551, ¶ 7, 38 P.3d 1213, 1216 (App. 2002) (citations omitted). In addition, due process requires only that the language of a statute convey a definite warning of the proscribed conduct. Fuenning v. Superior Court, 139 Ariz. 590, 598, 680 P.2d 121, 129 (1983). ¶7 Section 28-701.02(A), entitled Excessive speeds; classification, provides that a person shall not: 1. Exceed thirty-five miles per hour approaching a school crossing. 2. Exceed the posted speed limit in a business or residential district by more than twenty miles per hour, or if no speed limit is posted, exceed forty-five miles per hour. 3. Exceed eighty-five miles per hour in other locations. Section (A)(3) provides a clear and definite warning to persons of ordinary intelligence that driving in excess of 85 miles per hour in any location other than a school crossing, business district, or residential district, is prohibited. plain and unambiguous language of § Moreover, the 28-701.02(A)(3) provides clear instruction to law enforcement for its application, thus preventing arbitrary enforcement of the law. See State v. Cotton, 197 Ariz. 584, 590, ¶ 19, 5 P.3d 918, 924 (App. 2000) (stating that a statute is unconstitutionally vague if it is 4 drafted in a enforcement ). way that permits arbitrary and discriminatory We find no unconstitutional vagueness. CONCLUSION ¶8 For the above reasons, we affirm the decision of the superior court. ____/s/______________________________ JOHN C. GEMMILL, Judge CONCURRING: ___/s/_____________________________ DIANE M. JOHNSEN, Presiding Judge ___/s/_____________________________ MICHAEL J. BROWN, Judge 5

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