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MEMORANDUM

TO: Chief Prosecuting Attorney FROM: Anne OnimusDATE: August 21, 2007RE: Charging Joseph Haneywith Commission of Armed Robbery

Question Presented

Did Joseph Haney effectively simulate a deadly

weapon and create a life-threatening environment,

sufficient to satisfy the Arizona armed robbery statute,

by thrusting his hand into a pocket and telling the store

clerk that it was a "holdup" and to "[l]ie still if you want

to live," when the victim was unsure whether Haney had

such a weapon, when Haney used both hands to grab

money from the cash register, and when the only objects

found in Haney's possession were the stolen cash and a package of mints?

Brief Answer

No. Mere words and threats to use a deadly weapon

are insufficient to support such a charge, because under


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Arizona law, the victim must reasonably perceive that

the robber is armed with a deadly weapon, even if the

robber is merely simulating the presence of the weapon.

The ambiguity of Haney's actions and the fact that

Haney's victim did not perceive that he was armed do not

satisfy the requirements of the Arizona armed robbery

statute.

Statement of Facts

This office is considering whether to prosecute Joseph

Haney for armed robbery. Haney was arrested on August

12, 2007, for robbing Albert's Quik-Stop, a convenience

store in Tempe. According to the store clerk, Richard

Lopez, Haney entered the store at approximately 10:30

p.m. No other customers were in the store. Haney, who

was visibly nervous, approached Lopez, thrust his right

hand into the pocket of his windbreaker, and shouted,"Can't you tell this is a holdup? Give me the money in

the register, man! Don't make me hurt you!"

Lopez stated he was unsure whether Haney had a

weapon in the pocket. He described Haney as being large


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and muscular, and he said that Haney's physical size

persuaded him to cooperate by opening the register.

When Lopez did so, Haney jumped over the counter and

knocked Lopez to the ground, saying, "Lie still if you

want to live." Haney grabbed money from the register

with both his hands and placed the bills in the pockets of

his jeans and windbreaker. Haney then leaped back over

the counter and fled from the store. A patrol car had just

pulled up to the Quik-Stop's gas pumps, and the officer

driving it observed Haney running from the store. The

officer pursued and captured Haney and, upon a search

of the suspect's pockets, discovered the stolen money anda cylindrical package of mints in the windbreaker pocket.

He did not find any type of weapon.

Discussion

It is unlikely that Joseph Haney will be convicted of armed robbery because the State will not be able to

establish that the victim of the robbery perceived Haney

to be armed with a deadly weapon.

In order to successfully prosecute Joseph Haney for


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armed robbery, the State must prove that he was armed

with or that he used or threatened to use a deadly or a

simulated deadly weapon. Ariz. Rev. Stat. Ann. 13-

1904(A) (West 1984). Because Haney did not have an

actual weapon when he committed the robbery, the issue

here is whether Haney's victim reasonably perceived

Haney to be armed with a deadly weapon.

Mere words indicating the presence of a deadly

weapon are not enough to satisfy the statute. In one case,

the court found that a robber's verbal threats to use a

deadly weapon were not enough to support the

perception that she was armed. State v. Rodriguez , 791

P.2d 633, 638 (Ariz. 1990). In the Rodriguez robbery, the

defendant kept her right hand out of sight and threatened

to "shoot the smile off" the victim's face if he did not

cooperate with her. Id. at 634. In concluding that therobber did not simulate a deadly weapon, the Rodriguez

court found it significant that her hand was not visible

and that she did not make any physical movement to

indicate that she had a deadly weapon.


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Any object may suffice as a simulated deadly weapon,

provided that the victim reasonably perceives it to be an

actual weapon. State v. Felix , 737 P.2d 393, 394 (Ariz.

App. 1986). The defendant in Felix pressed a nasal

inhaler against his victim's back, declaring that he had a

gun. Based on what he felt, the victim perceived that a

gun was pressed against his back. Id. On these facts, the

court had no difficulty in finding that the defendant had

simulated a deadly weapon. Id .

In another decision focusing on the victim's

perception, the court upheld the armed robbery

conviction of a man who used his hand under his

clothing to simulate a gun during a robbery. State v.

Ellison , 819 P.2d 1010, 1013 (Ariz. App. 1991). The

court found it significant that the defendant simulated a

weapon with his hand, observing that "[t]he victim's perception is the same whether the weapon appears to be

or is in fact real." Id . at 1012. In the court's view, the

defendant's act posed the same potential for harm to or

reaction from the victim and any bystanders. Id. at 1013.

Because the victims in Ellison could reasonably have


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believed that the shape they saw under the defendant's

clothing was a gun, rather than his hand, the defendant

created the life-threatening environment which the armed

robbery statute seeks to punish. The court distinguished

this case from Rodriguez by noting that in Rodriguez ,

"the victim never saw anything resembling a weapon; the

defendant only implied that she had a gun when she

threatened to 'shoot the smile off' the victim's face." Id . at

1012 (citing Rodriguez , 791 P.2d at 633).

While these distinctions are small, they are supported

by the policy behind the armed robbery statute. In

passing the armed robbery statute, the Arizona legislature

meant to punish more severely those who used deadly or

simulated deadly weapons in the course of a robbery and

who thus created "[t]he potential for increased danger to,

or sudden and violent reaction by, the victim or bystanders." Rodriguez , 791 P.2d at 637. Indeed, the

Rodriguez court observed that if the penalty were the

same for those who possessed a weapon and those who

were unarmed, there would be no deterrent to the use of

weapons. Id . Taken together, these cases suggest that, in


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ambiguous circumstances, it is important to determine

whether the victim could have reasonably believed that

the robber had a deadly weapon.

In the present case, the question is whether the store

clerk could reasonably have perceived that Haney was

armed. Haney's words were not enough. Like the robber

in the Rodriguez case, Haney verbally threatened his

victim with harm, shouting, "Don't make me hurt you!"

and instructing him to "[l]ie still if you want to live."

Unlike that robber, however, Haney accompanied his

words with action, thrusting his hand into his pocket.

Although the arresting officer found a cylindrical

package of mints in Haney's pocket, nothing in Lopez's

account suggests that Haney used the package to

simulate a weapon in the way the defendant in Felix used

the nasal inhaler to approximate the barrel of a gun. And

although the Ellison case established that a person's

hands could be perceived to be a deadly weapon, this

analysis does not fit the facts of the Haney case. Haney

simply thrust his hand into his pocket. Had he


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simultaneously claimed that he had a gun, or had he used

more definitive gestures to suggest a gun, such as poking

his finger into the fabric of his windbreaker pocket or

simulating the barrel of a gun with the package of mints,

there might be a basis for prosecution.

Nothing in the victim's statement, however, indicatessuch a perception. For one thing, Lopez admitted notknowing whether Haney had a weapon. Lopez said heopened the cash register because he felt physicallyintimidated by Haney's size, not because he feared Haneywas armed. Haney's words, while threatening, did notexpressly suggest that he had a deadly weapon.Moreover, Lopez stated that he watched Haney use bothhands to scoop the cash into his pockets, including the

windbreaker pocket. Had Haney been holding a weapon,it is unlikely he would have let it go; the hand holdingthe weapon would have remained in his pocket and hewould not have put cash there. These facts show thatLopez never perceived the presence of a weapon, andtherefore, Haney did not create the life-threateningenvironment which is necessary to support a prosecution

under the armed robbery statute.

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