State v. Franklin, 5232

• Citation: 635 P.2d 1213,130 Ariz. 291
• Decision Date: 22 October 1981
• Docket Number: No. 5232,5232
• Parties: STATE of Arizona, Appellee, v. Kenneth Robert FRANKLIN and Leonard George Malatare, Appellants.
• Court: Supreme Court of Arizona

Page 1213

635 P.2d 1213

130 Ariz. 291

STATE of Arizona, Appellee, v. Kenneth Robert FRANKLIN and Leonard George Malatare, Appellants.

No. 5232.

Supreme Court of Arizona, In Banc.

Oct. 22, 1981.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, and Michael D. Jones, Asst. Attys. Gen., Phoenix, for appellee.

Jose A. De La Vara, Yuma, for appellants.

HAYS, Justice.

Appellants, Kenneth Robert Franklin and Leonard George Malatare, were charged with and indicted for the crime of armed robbery, A.R.S. § 13-1904. After a trial by jury, Malatare was found guilty of theft and was sentenced to three months in the Yuma County Jail. Franklin was found guilty of robbery and received a three-year suspended sentence. As a condition of probation, Franklin was required to serve a period of seven months in the Yuma County Jail. Both jail terms commenced on March 18, 1980. We take jurisdiction of this appeal pursuant to 17A A.R.S. Supreme Court Rules, rule 47(e)(5).

The primary question presented is whether the trial court erred when it denied appellants' motions for judgment of acquittal on the charge of armed robbery.

The pertinent facts are as follows. On March 18, 1980, appellant Franklin entered Joe Hands' Liquor Store in Yuma, Arizona, and approached the clerk, Betty Taylor. Taylor asked if she could help him, and Franklin answered by stating "I don't want to shake you up-this is a holdup." Taylor responded by saying "You're kidding" at which point Franklin said "No, I'm not," and made a motion inside his coat pocket as if he had a gun. Taylor testified, however, that she never saw a gun in Franklin's hand nor did Franklin say he had a gun or make any verbal threats concerning the use of a gun. While these events were occurring, Malatare was standing at the entrance of the liquor store. After Taylor gave Franklin approximately $70, appellants left the store and drove away in Franklin's vehicle. As the two left, they were observed by William Farrell. Farrell's suspicions were aroused when appellants' vehicle ran a red light. Farrell followed the vehicle and obtained its license plate number which he reported to the Yuma Police Department along with a description of the vehicle. Farrell testified he did not see either of the two men carrying anything in their hands.

The appellants were apprehended and arrested a short time later by an Arizona Department of Public Safety Highway Patrolman. Subsequent searches of the appellants and the vehicle failed to produce any weapons.

Both appellants testified. Franklin did not deny committing the robbery but did deny that he used a weapon or had a gun in his pocket at the time of the robbery. He also denied making any gestures which were intended to give the impression that he had a weapon in his coat pocket. Malatare testified that he did not have a gun nor did he see Franklin with one.

At the end of the State's case, appellants moved for a judgment of acquittal based on the lack of substantial evidence to warrant a conviction for the crime of armed robbery on which appellants were indicted. The trial court denied this motion, stating that a reasonable person would have believed that Franklin had a gun in his pocket. Appellants renewed this motion after the State and appellants rested their cases. The trial court again denied the motion. Appellants maintain the trial court erred in denying these motions and that the denials constituted reversible error.

A judgment of acquittal prior to verdict is appropriate only where there is no substantial evidence to warrant a conviction. 17 A.R.S. Rules of Criminal Procedure, rule 20(a); State v. Jones, 125 Ariz. 417, 610 P.2d 51 (1980). In State v. Jones, supra, we said, " '(s)ubstantial evidence' is evidence that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." (citations omitted). Id. at 419, 610 P.2d at 53.

In order to establish guilt for the crime of armed robbery, the facts must show that the defendant or accomplice was armed with a deadly weapon or dangerous instrument in the course of committing the robbery. A.R.S. § 13-1904(A). "Deadly weapon" is defined as "anything designed for lethal use," A.R.S. § 13-105(9), and "dangerous instrument" is defined as "anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury." A.R.S. § 13-105(7).

In State v. Laughter, 128 Ariz. 264, 625 P.2d 327 (App.1981), the Court of Appeals stated that the crime of armed robbery as defined in A.R.S. § 13- 1904(A) "is not satisfied by the defendant pretending to have a gun or even using a fake gun." Id. at 267, 625 P.2d at 330. The court went on to observe that the victim's belief that a weapon is present, even if justified by an objective standard, is insufficient to establish guilt. See also State v. Moore, 126 Ariz. 251, 614 P.2d 332 (App.1980). We believe this to be a correct interpretation of the statute.

Arizona's robbery statutes are broken down into three categories with the most severe punishment prescribed for armed robbery because the presence or threatened use of a weapon reflects "a premeditated readiness for violence and possible injury or death." Gerber, Criminal Law of Arizona, 275 (1978). However, where no weapon is actually present and the robber merely simulates the presence of a weapon by gesturing with a hand in the pocket, the rationale behind the greater punishment for armed robbery no longer exists. Put another way, "(t)he robber with the ... toy gun (or with the hand in the pocket simulating a gun) is not nice ... but he is not the dangerous type for whom the greater penalty is reserved." LaFave and Scott, Handbook On Criminal Law, § 94, 703 n.67 (1972). ¹

Examined in this light, the trial court's stated reason for denying the motion for judgment of acquittal was clearly erroneous. The State argues, however, that Taylor's observation of what appeared to be a gun in Franklin's coat pocket was sufficient evidence of an "article" to give rise to the presumption contained in A.R.S. § 13-1904(B) which provides:

B. For the purposes of this chapter, exhibition in the course of committing armed robbery of an article fashioned or used in a manner to lead any reasonable person to believe it to be deadly or dangerous is presumed evidence of its deadly or dangerous character. (emphasis added).

This presumption, the State contends, coupled with Taylor's testimony that Franklin appeared to have a gun inside his coat pocket which he pointed at her in a threatening manner, was substantial evidence indicating appellants' guilt of armed robbery. We do not agree.

As was pointed out by the Court of Appeals in State v. Moore, supra, 126 Ariz. at 254-55, 614 P.2d at 334-35, the purpose of the presumption created by § 13-1904(B) is to aid the State in establishing a weapon was not fake in cases where the robber claims he brandished an unworkable or simulated weapon during the commission of the robbery. ² In the present case Taylor never saw a weapon, fake or otherwise, nor did Franklin tell her he had one at the time of the offense. These facts were insufficient to raise the presumption.

Based upon these facts, we hold that the evidence was insufficient to support the charge of...