MEMORANDUM

TO: Chief Prosecuting Attorney

FROM: Anne Onimus
DATE: August 21, 2007
RE: Charging Joseph Haney with 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 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 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 and a 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 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 the robber 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.

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 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 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 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, indicates such a perception. For

one thing, Lopez admitted not knowing whether Haney had a weapon. Lopez

said he opened the cash register because he felt physically intimidated by

Haney's size, not because he feared Haney was armed. Haney's words, while
threatening, did not expressly suggest that he had a deadly weapon. Moreover,

Lopez stated that he watched Haney use both hands 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 holding the weapon would have

remained in his pocket and he would not have put cash there. These facts show

that Lopez never perceived the presence of a weapon, and therefore, Haney did

not create the life-threatening environment which is necessary to support a

prosecution under the armed robbery statute.

A legal memorandum is a document that attorneys use to analyze legal issues and
evaluate the facts of a given case. Law clerks or paralegals may also provide preliminary
research legal memoranda to attorneys for a legal question or to determine the viability of
a new case.

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This is a description of the legal issue or legal question to be researched and it should be
limited to one sentence. The issue may also be written in the form of a question.

 Write a "Short Answer" section. Directly answer the legal issue and briefly describe
the law upon which your answer is based. This section should be no longer than two or
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 Write a brief "Statement of the Facts" section. This section should describe in a
neutral, narrative form the facts that the client has provided. It should include only the
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you refer to a case law or other law, such as statutes and regulations. You should not
include any secondary resources, such as legal encyclopedias.
 Write a "Recommendations" section. If you must determine whether the client's case
is viable, discuss in this section why the client will prevail or lose based upon your
analysis. Base your recommendation solely on your analysis of the legal issue; the
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