State v. Bousley
| Decision Date | 16 April 1992 |
| Docket Number | CR-91-0297-PR,Nos. CR-91-0156-P,s. CR-91-0156-P |
| Citation | 829 P.2d 1212,171 Ariz. 166 |
| Parties | STATE of Arizona, Appellee, v. Kirk Anthony BOUSLEY, Appellant. STATE of Arizona, Appellee, v. Samuel Henry ELLISON, Appellant. |
| Court | Arizona Supreme Court |
In this consolidated proceeding, we review two court of appeals opinions that addressed the same issue but reached opposite conclusions. State v. Bousley, 169 Ariz. 389, 819 P.2d 975 (App.1991); State v. Ellison, 169 Ariz. 424, 819 P.2d 1010 (App.1991). We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.
On January 5, 1990, a Maricopa County Grand Jury indicted codefendants Kirk Anthony Bousley and Samuel Henry Ellison on numerous counts of armed robbery. Bousley and Ellison later entered into separate written plea agreements. Both Bousley and Ellison now appeal the convictions that were based on their pleas.
Pursuant to his plea agreement, Bousley pleaded no contest to two counts of armed robbery under A.R.S. § 13-1904, each a class 2 felony, committed while on probation and with one prior felony conviction. At the time he entered his pleas, the court advised Bousley of all of his constitutional rights, which he waived. Based on his pleas, the court sentenced Bousley to an aggravated term of 15 years flat time on each count, the sentences to run concurrently with each other but consecutively to the sentence resulting from his probation violation.
On appeal, Bousley cited State v. Rodriguez, 164 Ariz. 107, 791 P.2d 633 (1990), and argued that the factual bases for his pleas did not support his convictions and sentences. The court of appeals agreed and vacated Bousley's pleas, reversed his convictions and sentences, and remanded the cause for further proceedings.
In vacating Bousley's plea, the court of appeals found insufficient the following factual bases provided by the state at the change of plea hearing. On December 27, 1989, Bousley entered a Circle K store while an accomplice waited in a getaway car. Bousley held his hand under his clothing in such a way that he appeared to have a handgun in his pocket and demanded money from the clerk. The clerk locked the register and Bousley left the store, grabbing $26 worth of cigarettes as he left.
Also on December 27, 1989, Bousley entered a second Circle K store, positioned his hand under his clothing in a way that made it appear as if he had a handgun under his shirt, and demanded that the clerk give him all the money in the register or he would "blast" her. The clerk opened the register and Bousley took $100. Bousley then left the Circle K store and got into a getaway car driven by Ellison, and the two left.
Pursuant to a written plea agreement, Ellison pleaded no contest to two counts of armed robbery under A.R.S. § 13-1904, each a class 2 felony. At the time he entered his pleas, the court advised Ellison of all of his constitutional rights, which he waived. Based on his pleas, the court sentenced Ellison to 7 years imprisonment on the first count, followed by a consecutive 5-year probationary term on the second count.
On appeal, Ellison argued that no factual basis existed for his pleas because the facts underlying his no contest pleas were indistinguishable from those presented in Rodriguez. The court of appeals distinguished Rodriguez and affirmed Ellison's convictions and sentences.
In affirming Ellison's convictions and sentences, the court of appeals relied on the following factual bases provided by the state at the change of plea hearing. On December 27, 1989, Ellison and Bousley demanded money from the clerk of a Texaco convenience store. When the clerk told them that he had no money, Ellison walked behind the counter and punched him. The clerk immediately opened the register and Ellison and Bousley took $74. During the course of the robbery, both Ellison and Bousley held their hands under their clothing in such a way that they appeared to have handguns in their pockets.
Also on December 27, 1989, Ellison's accomplice, Bousley, entered a Circle K store and, while positioning his hands under his clothing in a way that made it appear as if he had a handgun under his shirt, demanded money from the clerk. Bousley threatened to "blast" the clerk if she did not cooperate and open the register. The clerk opened the register and Bousley took $100. Following the robbery, Bousley jumped into a getaway car driven by Ellison.
We granted review in these cases to determine whether a defendant may be convicted of armed robbery under A.R.S. § 13-1904 when he commits robbery while positioning a part of his body under his clothing in such a way that he appears to have a deadly weapon. We agree with the Ellison opinion and hold that a defendant may be so convicted.
Both Ellison and Bousley rely on Rodriguez in arguing that their pleas have no factual basis. In Rodriguez, the defendant was convicted of armed robbery under A.R.S. § 13-1904, which reads,
A. 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.
The evidence in Rodriguez established that the defendant approached a gas station cashier and, keeping her right hand out of sight, demanded money. When the cashier smiled in disbelief, the defendant stated that she was serious and threatened to "shoot the smile off" the cashier's face. The cashier then gave the defendant money and cigarettes and the defendant fled. At trial, the cashier testified that although the defendant implied that she had a gun, he did not see the defendant's hands, nor did the defendant make any movements to indicate that she had a gun.
On review to this court, we concluded that "a weapon, whether it be an actual deadly weapon, a dangerous instrument or a simulated deadly weapon, must actually be present" to support a conviction for armed robbery under § 13-1904. Rodriguez, 164 Ariz. at 112, 791 P.2d at 638 (emphasis added). We held that the "simulation" required by law "is not that a...
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State v. Joyner
...with a simulated deadly weapon — and a "simulated deadly weapon" may be neither deadly nor dangerous. See, e.g., State v. Bousley, 171 Ariz. 166, 168, 829 P.2d 1212, 1214 (1992) (positioning hands to "simulate[ ] deadly weapons" supported armed robbery conviction); State v. Felix, 153 Ariz.......
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...purposes of § 13-1904(A). The parties agree that State v. Garza Rodriguez, 164 Ariz. 107, 791 P.2d 633 (1990) , and State v. Bousley, 171 Ariz. 166, 829 P.2d 1212 (1992), are the key cases on this issue.¶9 In Garza Rodriguez , the defendant was charged with two counts of armed robbery. 1......
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...one can be convicted of armed robbery by suggesting that one is armed with a hand under a piece of clothing. See State v. Bousley, 171 Ariz. 166, 167, 829 P.2d 1212, 1213 (1992). He does not address the grounds upon which the Court of Appeals found there was no Confrontation Clause violatio......
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