Return to Top of DocumentSECTION 1 - COLQUITT
FALL, 2002
791 P.2d 633 (Ariz. 1990)
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 granted review to consider whether, under [the statute] 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 * * * 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: "I don't see a gun. If you've got one, show the darn thing." 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 * * *. 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 instance 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.
* * * The court of appeals * * * affirmed, stating that a plain reading of the statute leads to the conclusion that "[t]here is not requirement that a weapon or simulated weapon be actually present at the time of the offense." * * * The court of appeals found that defendant's threat to shoot the victim satisfied the elements of armed robbery set forth in [the statute], which reads:
"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."
* * *
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. * * * 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. * * *
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[1], 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."
* * * 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.
* * *
We presume that the legislature knows the existing laws when it enacts or modifies a statute. Additionally, we presume that by amending a statute, the legislature intends to change the existing law. Applying these principles and comparing the former and modified statutory language leads us to conclude that the 1983 statutory modification, at a minimum, changed the armed robbery statute by elevating the former evidentiary presumption regarding articles fashioned or used like deadly weapons to an element of the crime of armed robbery. A person charged with armed robbery, therefore, can no longer overcome the presumption in favor of the State with proof that the article involved in the robbery was unloaded, unworkable, or a fake.
We must next determine whether, in addition to elevating the former presumption, the legislature also intended to change the requirement that the robbery be committed with an actually present weapon. To assist in this determination, we consider the policies underlying the armed robbery statute as originally enacted and the entire system of related statutes.
* * *
Unless some physical act, including a verbal threat, was used to coerce the surrender of property, a person can only be found guilty of theft. Once force or a threat of imminent physical injury sufficient to overpower the party robbed is used, the crime becomes simple robbery. Something even more in the way of dangerousness is needed to elevate the crime from simple robbery to a great felony. 2 W. FaFave and A. Scott, Substantive Criminal Law § 8.11, at 456 (1986). For example, aggravated robbery, one committed with the aid of an accomplice, is deemed an intermediate offense because it "reflects greater planning and a greater readiness for violence than appears in a solo performance."
Within the armed robbery statute, several variable elements call for heightened punishment if the circumstances exist at the time of the robbery. The element of "uses a deadly weapon or dangerous instrument" in [the statute], for example, is self-defining and reflects the legislature's determination that those who use deadly weapons or dangerous instruments deserve a greater punishment.
The [statutory] elements of "armed with a deadly weapon" or "armed with a simulated weapon" are satisfied if the State establishes that such an instrument was within the immediate possession or available for use of the accused. Both elements reflect the policy that the greater punishment is reserved to deter the dangerous person actually capable of inflicting death or serious bodily harm or intending to create a life endangering environment by carrying a deadly or simulated deadly weapon. The weapon, therefore, need not be displayed by the accused nor seen by the victim to satisfy these elements of the armed robbery statute.
The final element of the armed robbery statute, "threatens to use a deadly weapon or a dangerous instrument or simulated deadly weapon," is not as easily interpreted. Through the enactment of the original statute in 1977, the legislature advanced the policy that greater punishment is reserved for the person who creates the potential for increased danger to, or sudden and violent reaction by, the victim or bystanders. * * * Thus, threatening to use an actually present deadly weapon or dangerous instrument was incorporated as one of the original elements of armed robbery because such a threat creates a more dangerous situation. The type of threat calling for heightened punishment, however, was more than the threat necessary to overpower the victim as in a simple robbery; it was one that increased danger to others.
* * *
[W]e interpret the effect of the added language "or a simulated deadly weapon" as indicating that a simulated deadly weapon is an alternative to a deadly weapon. In other words, the "simulation" 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. * * *
We conclude that 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 to satisfy the "threatens to use" element of the armed robbery statute. * * *
In reaching this conclusion, we admittedly are influenced by the policy implication of holding otherwise. If it makes no difference whether a weapon is present, and an unarmed person faces the same penalty as a person actually armed with a weapon, use of weapons, by implication, is encouraged or at least not discouraged. We do not believe the legislature could have intended such a result. If we are wrong, however, the legislature may certainly correct our interpretation by clarifying the statutory language.
[T]he judgment is ordered revised to reflect convictions for simple robbery on both counts. The matter is remanded to the trial court for re-sentencing in accordance with this decision.
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