791 P.2d 633 (Ariz. 1990), CR-89-0190, State v. Garza Rodriguez

Docket Nº:CR-89-0190-PR.
Citation:791 P.2d 633, 164 Ariz. 107
Opinion Judge:[9] Gordon
Party Name:The STATE of Arizona, Appellee, v. Stella GARZA RODRIGUEZ, aka Stella Garza Gonzales, aka Blanca Estella Rodriguez, Appellant.
Attorney:[7] Robert K. Corbin, The Attorney General, Mark E. Dwyer, Assistant Attorney General, Phoenix, Arizona, Attorneys for Appellee. [8] De Concini McDonald Brammer, Yetwin & Lacy, By: Wayne E. Yehling, Tucson, Arizona, Attorneys for Appellant.
Case Date:May 01, 1990
Court:Supreme Court of Arizona
 
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Page 633

791 P.2d 633 (Ariz. 1990)

164 Ariz. 107

The STATE of Arizona, Appellee,

v.

Stella GARZA RODRIGUEZ, aka Stella Garza Gonzales, aka Blanca Estella Rodriguez, Appellant.

No. CR-89-0190-PR.

Supreme Court of Arizona.

May 1, 1990

In Banc.

Page 634

[164 Ariz. 108] Robert K. Corbin, Atty. Gen., and Mark E. Dwyer, Asst. Atty. Gen., Phoenix, for appellee.

DeConcini McDonald Brammer Yetwin & Lacy by Wayne E. Yehling, Tucson, for appellant.

GORDON, Chief Justice.

Defendant, Stella Garza Rodriguez, petitions for review of the court of appeals decision affirming her conviction for armed robbery pursuant to A.R.S. § 13-1904. We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24. We granted review to consider whether, under A.R.S. § 13-1904, an armed robbery conviction may be sustained if one committing a robbery threatens to use a weapon but no evidence is offered that a deadly weapon, dangerous instrument, or simulated deadly weapon was present. We conclude that such a conviction may not be sustained.

FACTS AND PROCEDURAL HISTORY

Defendant was charged by indictment with two counts of armed robbery. Each count alleged that defendant committed the robberies while armed with a simulated deadly weapon, in violation of A.R.S. § 13-1904(A), the armed robbery statute.

The evidence adduced at trial showed that in the early morning hours of February 23, 1988, defendant and two others drove to a self-service gas station in Tucson. Defendant exited the automobile and walked to the cashier's booth. Defendant approached the counter and, keeping her right hand out of sight, told the cashier to give her all of his money. Initially, the cashier smiled in disbelief but, after defendant said she was serious and would "shoot the smile off" his face, he gave her about $40 and ten cartons of cigarettes. Defendant instructed the cashier to lie down and then fled. The cashier testified that, although defendant implied she had a gun, he never saw her right hand nor did she make any movements indicating she had a gun.

Defendant and her two friends then proceeded to an all-night convenience store a short distance from the gas station. Defendant approached the clerk and told him to give her his money. After the clerk challenged defendant's authority to take the money, defendant stated she had a gun. The clerk then said: "I don't see a gun. If you've got one, show the darn thing." The clerk testified that defendant began moving her hands back and forth under the serape she was wearing. The clerk then said: "Well, never mind, don't get excited before you start shooting." The clerk then placed about $30 on the counter; defendant walked forward, scooped up the money and left. The clerk could not recall if he saw both hands at the same time.

At the close of the State's case-in-chief, defendant moved for a directed verdict of acquittal on the armed robbery charges pursuant to Rule 20, Arizona Rules of Criminal Procedure. Defendant argued that the State failed to produce substantial evidence to warrant a conviction under the indicted charges. According to defendant, the armed robbery statute requires at least some simulation of a deadly weapon; use of mere words, such as "I have a gun," or shuffling hands under a serape, is insufficient simulation. The State argued that the armed robbery statute only requires a threat to use a deadly weapon. The State asserted that the statutory requirements were met in the first incident when defendant stated she would "shoot the smile off" the clerk's face and in the second incident when she told the victim she had a gun while moving her hands under the serape.

The trial court denied the Rule 20 motion and submitted both counts to the jury. The jury found defendant guilty of armed robbery of the first victim, but guilty of only simple robbery of the second victim.

Defendant filed a timely appeal, contending insufficient evidence was presented to sustain the conviction for armed robbery. The court of appeals disagreed and affirmed,,

Page 635

[164 Ariz. 109] stating that a plain reading of the statute leads to the conclusion that "[t]here is no requirement that a weapon or simulated weapon be actually present at the time of the offense." 162 Ariz. 606, 785 P.2d 126 (App.1989). The court of appeals found that defendant's threat to shoot the victim satisfied the elements of armed robbery set forth in A.R.S. § 13-1904(A), which reads:

A person commits armed robbery if, in the course of committing robbery as defined in § 13-1902, such person or an accomplice:

1. Is armed with a deadly weapon or a simulated deadly weapon; or

2. Uses or threatens to use a deadly weapon or dangerous instrument or a simulated deadly weapon.

Defendant petitioned for review from the court of appeals decision. We granted review pursuant to Rule 31.19, Arizona Rules of Criminal Procedure.

DISCUSSION

This case requires us to interpret the meaning of the phrase "threatens to use" within the context of the armed robbery statute. The court of appeals affirmed the conviction in this case based on its...

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