State v. Flores, 082118 AZAPP1, 1 CA-CR 17-0403

Docket Nº:1 CA-CR 17-0403
Opinion Judge:JOHNSEN, JUDGE
Party Name:STATE OF ARIZONA, Appellee, v. OSCAR MANUEL MONTES FLORES, Appellant.
Attorney:Arizona Attorney General's Office, Phoenix By Eliza C. Ybarra Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Mark E. Dwyer Counsel for Appellant
Judge Panel:Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.
Case Date:August 21, 2018
Court:Court of Appeals of Arizona
 
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STATE OF ARIZONA, Appellee,

v.

OSCAR MANUEL MONTES FLORES, Appellant.

No. 1 CA-CR 17-0403

Court of Appeals of Arizona, First Division

August 21, 2018

Appeal from the Superior Court in Maricopa County No. CR2016-117755-001 The Honorable Lauren R. Guyton, Judge Pro Tempore

Arizona Attorney General's Office, Phoenix By Eliza C. Ybarra Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix By Mark E. Dwyer Counsel for Appellant

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.

OPINION

JOHNSEN, JUDGE

¶1 Oscar Manuel Montes Flores told the employee behind the counter of a convenience store that he had a gun and moved his hand beneath his shirt and waistband as if he was holding a weapon. He demanded money, and the employee gave him what there was in the cash register. A jury convicted Montes Flores of armed robbery and other charges. We affirm, holding that it did not matter that the victim of the robbery did not see him use his hand to simulate a weapon.

FACTS AND PROCEDURAL BACKGROUND

¶2 Montes Flores entered a convenience store before dawn one morning, selected some sunflower seeds and a bottle of water and paid for them at the front counter.[1] His transaction complete, Montes Flores looked toward the front door, then turned again in the direction of the assistant manager behind the counter. Sliding his hand beneath his shirt and under the waistband of his pants, Montes Flores leaned forward and demanded, "Give me all your money, I have a gun." Not immediately understanding, the victim responded, "Excuse me?" After Montes Flores repeated his statement, the victim quickly opened the register and began to pull money from the drawer. Montes Flores told him to put the money in a bag. As soon as the victim handed him the bag, Montes Flores walked out of the store and drove off in a stolen SUV. Surveillance cameras captured the robbery in its entirety.

¶3 Police arrested Montes Flores after he crashed the SUV not far away. The State charged him with armed robbery, theft of a means of transportation and criminal damage caused in connection with the theft of the SUV. The State also alleged aggravating circumstances and that Montes Flores had historical prior felony convictions.

¶4 The jury found Montes Flores guilty as charged. At sentencing, he admitted two historical prior felony convictions. The superior court sentenced him to concurrent terms of incarceration, the longest of which was 14 years. Montes Flores timely appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018), 13-4031 (2018), and -4033(A)(1) (2018).2

DISCUSSION

A. Constitutional Validity of A.R.S. § 13-1904.

¶5 Montes Flores was convicted under A.R.S. § 13-1904(A) (2018), which provides that an armed robbery occurs when one who commits robbery: 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.

¶6 Nothing in the record suggests that Montes Flores used an actual deadly weapon to commit the robbery. The theory of the prosecution was that he used his hand to simulate a deadly weapon. Montes Flores argues the statute is unconstitutionally vague because it is unclear whether it applies to a robber who uses his hand, not an object, to simulate a weapon.

¶7 We review the constitutionality of a statute de novo. State v. McDermott, 208 Ariz. 332, 335, ¶ 12 (App. 2004). "When a statute is challenged as vague, we presume that it is constitutional," and the complaining party bears the burden of "demonstrating the statute's invalidity." Id. at 335-36, ¶ 12.

¶8 "A statute is void for vagueness if it fails to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he [or she] may act accordingly." State v. Burbey, 243 Ariz. 145, 149, ¶ 15 (2017) (quotations omitted) (alteration in original). "Such laws violate due process because they fail to provide fair warning of criminal conduct and do not provide clear standards to law enforcement to avoid arbitrary or discriminatory enforcement." Id. "Due process does not require, however, that a statute be drafted with absolute precision." State v. Burke, 238 Ariz. 322, 326, ¶ 6 (App. 2015) (quotation omitted). "It requires only that the language of a statute convey a definite warning of the proscribed conduct." Id. (quotation omitted). Accordingly, a "statute is not void for vagueness because it fails to explicitly define a term or because it can be interpreted in more than one way." McDermott, 208 Ariz. at 336, ¶ 13.

¶9 Arizona statutes do not define the term "simulated deadly weapon." See A.R.S. §§ 13-105 (2018), -1901 (2018)...

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