State v. Garza Rodriguez
| Decision Date | 01 May 1990 |
| Docket Number | No. CR-89-0190-PR,CR-89-0190-PR |
| Parties | The STATE of Arizona, Appellee, v. Stella GARZA RODRIGUEZ, aka Stella Garza Gonzales, aka Blanca Estella Rodriguez, Appellant. |
| Court | Arizona Supreme Court |
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.
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.
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: 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 A person commits armed robbery if, in the course of committing robbery as defined in § 13-1902, such person or an accomplice:
[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:
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.
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 interpretation of the "plain meaning" of the statute. We do not think this statute is so easily interpreted.
In prior decisions, this Court and the court of appeals interpreted an earlier version of the armed robbery statute to require the actual presence of a weapon. See State v. Franklin, 130 Ariz. 291, 635 P.2d 1213 (1981) (). In 1983, however, the legislature modified the armed robbery statute. The basic question before us then is what effect the 1983 statutory modification had on the required elements of the crime of armed robbery. To answer this question, we must once again examine the history of the robbery statute and determine whether the legislature, in fact, changed the meaning of the phrase "threatens to use" when it modified the statute in 1983.
In 1975, the Arizona Criminal Code Commission filed a report in which it proposed a three-tiered classification for robbery. The legislature subsequently enacted this proposed code with some modification in 1977. One of the modifications, the legislature's decision to not enact the recommended elements for aggravated robbery in their entirety, affects the interpretation of legislative intent with respect to the armed robbery statute.
As first enacted in 1977, the armed robbery classification provided:
A. A person commits armed robbery if in the course of committing robbery as defined in section 13-190, such person or an accomplice:
1. is armed with a deadly weapon; or
2. uses or threatens to use a deadly weapon or dangerous instrument.
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.
Added by Laws 1977, ch. 142, § 73, eff. Oct. 1, 1978. The comments to this section explain that the actual presence of either a deadly weapon or dangerous instrument was a necessary element of the crime of armed robbery. 1
The report distinguished the various acts or circumstances comprising the armed robbery classification. In addition, the comments explained the term "threatens to use" within the context of the revised code. By way of illustration, the comments clarified that the threat to use a nonexistent pocketknife (a dangerous instrument under the term's definition) fell under aggravated robbery. The threat to use a concealed, present pocketknife, on the other hand, fell under armed robbery because the knife's actual presence gave rise to the greater penalty. Arizona Criminal Code Commission, Comment to Proposed Arizona Revised Criminal Code 189 (1975) (hereafter Code Commission Report).
In addition to the aggravated robbery element of commission of the robbery with the aid of an accomplice, the Commission recommended a second aggravating circumstance when the robbery was committed by a person representing "by word or gesture that he or she or an accomplice is armed with a deadly weapon or dangerous instrument." Code Commission Report at 186. The Commission noted:
The second aggravating circumstance ... covers two forms of dangerous conduct: the representation of a nonpresent deadly weapon or instrument, ... or the exhibition of a dummy weapon. Both merit more severe treatment because of the greater recourse to violence.
Id. at 188 (emphasis added). Robberies involving asserted but nonpresent weapons, therefore, were relegated to the lesser offense of aggravated robbery.
In adopting the statute in 1977, however, the legislature deleted the second aggravating circumstance. R. Gerber, Criminal Law of Arizona 273 (1978). Given the legislative record and the rationale behind the separate categories of the crime of robbery, this Court and the court of appeals interpreted the legislature's decision as one indicating that verbal threats to use nonpresent deadly weapons and the use of present "dummy" or simulated weapons fell under the simple robbery statute. State v. Franklin, 130 Ariz. 291, 292, 635 P.2d 1213, 1214 (1981); State v. Laughter, 128 Ariz. 264, 267, 625 P.2d 327, 330 (App.1981).
In State v. Laughter, the court of appeals interpreted the former version of the armed robbery statute as requiring the actual presence of a deadly weapon or dangerous instrument. The court found that the crime of armed robbery "is not satisfied by the defendant pretending to have a gun or even using a fake gun." 128 Ariz. at 267, 625 P.2d at 330. The court also noted that culpability was not based on the victim's belief, reasonable or otherwise, that a weapon was present. Id.
This Court agreed with the court of appeals' interpretation of the statute in State v. Franklin, 130 Ariz. at 292, 635 P.2d at 1214. Examining the rationale underlying the gradation of the crime, we said...
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