State v. Ellison

• Decision Date: 11 July 1991
• Docket Number: CA-CR,No. 1,1
• Citation: 819 P.2d 1010,169 Ariz. 424
• Parties: STATE of Arizona, Appellee, v. Samuel Henry ELLISON, Appellant. 90-971.
• Court: Arizona Court of Appeals

Page 1010

819 P.2d 1010

169 Ariz. 424

STATE of Arizona, Appellee, v. Samuel Henry ELLISON, Appellant.

No. 1 CA-CR 90-971.

Court of Appeals of Arizona Division 1, Department E.

July 11, 1991.

Review Granted Nov. 5, 1991.

[169 Ariz. 425] Grant Woods, The Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Div., Susanna C. Pineda, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Stephen R. Collins, Deputy Public Defender, Phoenix, for appellant.

OPINION

EHRLICH, Judge.

Samuel Henry Ellison, the defendant, appeals from his convictions for two counts of armed robbery and from the sentences imposed. We affirm the judgments.

FACTS

By indictment, the defendant was charged with five counts of armed robbery, each a class 2 felony. The indictment later was amended to allege that three of the counts were dangerous felonies and that a conviction from any one or more of the five counts would serve as a Hannah ¹ prior for any of the other convictions.

The defendant entered a written agreement to plead no contest to two counts of armed robbery, both class 2 and non-dangerous felonies. The agreement set forth the range of sentence, the maximum fine and the required payment of a felony assessment. The parties stipulated that the defendant would receive the presumptive term of seven years' imprisonment for one count followed by a five-year probationary term for the other count. The agreement also provided that the defendant would make restitution on each of the five counts in the indictment. The state agreed to dismiss the other three counts of armed robbery and its allegation of Hannah priors.

At the change-of-plea hearing, the prosecutor provided the factual basis as to one count of armed robbery: The defendant and an accomplice demanded money from a store clerk who told them that he had none. The defendant then went behind the counter and punched the clerk in the arm, at which time the clerk opened the cash register and the defendant and his companion took $74 before leaving the store. The two men "simulated that they had handguns in their pockets at the time that they were demanding the money."

The prosecutor also provided the factual basis as to the other count of armed robbery: The defendant's same companion entered another store and, "simulating a handgun under his shirt, demanded money from the clerk." The accomplice then took approximately $100 from the cash register, having "threatened to blast her [the clerk] if she did not open the register." The accomplice then left the store and got into a vehicle driven away by the defendant.

The trial court addressed the defendant personally and determined that the pleas were knowing, voluntary, intelligent and factually-based. Judgment and sentencing were postponed to permit preparation of a presentence report.

The presentence report subsequently submitted to the court provided as to one of the counts that "[b]oth of the men had their hands in their pockets, acting like they had weapons." It further stated that "according to the police reports, either the defendant or ... [his accomplice] carried a weapon or appeared to have a weapon."

At sentencing, the trial court accepted the defendant's pleas and sentenced him in accordance with the plea agreement. The defendant was given credit for 161 days of presentence incarceration and ordered to pay the requisite felony assessments and, as a term of probation, restitution in the amount of $432.53.

On appeal, the defendant relies on State v. Garza Rodriguez, 164 Ariz. 107, 791 P.2d 633 (1990), to argue that the factual bases were insufficient to support the pleas of no contest to armed robbery. The defendant claims that because he and his accomplice only pretended to have handguns, the statutory requirements for armed robbery were not met. The state maintains that a robbery committed with simulated deadly weapons is armed robbery.

Before a trial court may accept a defendant's plea, it must determine that the plea has a factual basis. Rule 17.3, A.R.Crim.P. The factual basis may be established by the extended record, including a presentence report. State v. Limpus, 128 Ariz. 371, 376-77, 625 P.2d 960, 965-66 (App.1981). Sufficient evidence must be presented as to each element of the offense to which a defendant pleads. State v. Johnson, 142 Ariz. 223, 224, 689 P.2d 166, 167 (1984); State v. Carr, 112 Ariz. 453, 455, 543 P.2d 441, 443 (1975). However, the court need only be satisfied that there is strong evidence of a defendant's guilt; it need not determine guilt beyond a reasonable doubt. State v. McGuire, 131 Ariz. 93, 95, 638 P.2d 1339, 1341 (1981).

A person commits armed robbery if, in the course of committing robbery, ² that person or an accomplice ³ is either "armed with a deadly weapon or a simulated deadly weapon" or "uses or threatens to use a deadly weapon or dangerous instrument or a simulated deadly weapon." A.R.S. § 13-1904(A). The trial court determined that the defendant on one occasion presented himself as armed with a deadly weapon, a handgun, and that, on the other occasion, had an accomplice who similarly posed as having a deadly weapon and, in fact, threatened the use of a handgun. Although on neither occasion was a deadly weapon shown, in each case, its existence was simulated.

In Garza, the defendant was convicted of armed robbery using a simulated deadly weapon. 164 Ariz. at 108, 791 P.2d at 634. The evidence established that the defendant approached a gas station cashier and, keeping her right hand out of sight, demanded money. Id. When the cashier smiled in disbelief, the defendant stated that she was serious and threatened to "shoot the smile off" the cashier's face. Id. The cashier then gave the defendant money and cigarettes and the defendant fled. Id. At trial, the cashier testified that although the defendant implied that she had a gun, he never saw the defendant's hands nor did the defendant make any movements to indicate that she had a gun. Id. On a subsequent petition for review, the Arizona Supreme Court found that the evidence as to the armed robbery was insufficient and reduced the offense to robbery. Id. at 112-13, 791 P.2d at 638-39.

Arizona's armed robbery statute was modified in 1983 to add the words "or simulated deadly weapon." The pre-1983 statute also had included an evidentiary presumption which considered any article fashioned or used in a deadly or dangerous manner as a deadly or dangerous weapon until proven otherwise. The legislature changed this to an element of the crime of armed robbery in order to prohibit a defendant from overcoming the presumption by proving that the article involved was unloaded, unworkable or a fake. Id. at 110-11, 791 P.2d at 636-37.

In Garza, the court held that the "simulation" required by law "is not that a robber feigns or pretends to have a weapon on their person but rather that the person commits the robbery with a pretend deadly weapon." Id. at 112, 791 P.2d at 638. The court referred to State v. Felix, 153 Ariz. 417, 419, 737 P.2d 393, 395 (App.1986), in which this court had held that the defendant's use of a nasal inhaler to simulate the barrel of a gun pressed against the victim's body constituted a "simulated deadly weapon" within the meaning of the revised armed robbery statute. Garza, 164 Ariz. at 112, 791 P.2d at 638. The distinguishing fact in Garza seemingly was that the victim never saw anything resembling a weapon; the defendant only implied that she had a gun when she threatened to "shoot the smile off" the victim's face. Id. A "weapon, whether it be an actual deadly weapon, a dangerous instrument, or a simulated deadly weapon, must actually be present and used in a threatening manner...." Id.

Here the...