IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

            OSCAR MANUEL MONTES FLORES, Appellant.

                         No. 1 CA-CR 17-0403
                           FILED 8-21-2018


          Appeal from the Superior Court in Maricopa County
                       No. CR2016-117755-001
          The Honorable Lauren R. Guyton, Judge Pro Tempore

                              AFFIRMED


                              COUNSEL

Arizona Attorney General's Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant



                              OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.
                        STATE v. MONTES FLORES
                           Opinion of the Court


J O H N S E N, Judge:

¶1           Oscar Manuel Montes Flores told the employee behind the
counter of a convenience store that he had a gun and moved his hand
beneath his shirt and waistband as if he was holding a weapon. He
demanded money, and the employee gave him what there was in the cash
register. A jury convicted Montes Flores of armed robbery and other
charges. We affirm, holding that it did not matter that the victim of the
robbery did not see him use his hand to simulate a weapon.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Montes Flores entered a convenience store before dawn one
morning, selected some sunflower seeds and a bottle of water and paid for
them at the front counter.1 His transaction complete, Montes Flores looked
toward the front door, then turned again in the direction of the assistant
manager behind the counter. Sliding his hand beneath his shirt and under
the waistband of his pants, Montes Flores leaned forward and demanded,
"Give me all your money, I have a gun." Not immediately understanding,
the victim responded, "Excuse me?" After Montes Flores repeated his
statement, the victim quickly opened the register and began to pull money
from the drawer. Montes Flores told him to put the money in a bag. As
soon as the victim handed him the bag, Montes Flores walked out of the
store and drove off in a stolen SUV. Surveillance cameras captured the
robbery in its entirety.

¶3            Police arrested Montes Flores after he crashed the SUV not far
away. The State charged him with armed robbery, theft of a means of
transportation and criminal damage caused in connection with the theft of
the SUV. The State also alleged aggravating circumstances and that Montes
Flores had historical prior felony convictions.

¶4           The jury found Montes Flores guilty as charged. At
sentencing, he admitted two historical prior felony convictions. The
superior court sentenced him to concurrent terms of incarceration, the
longest of which was 14 years. Montes Flores timely appealed, and we have


1      On appeal, Montes Flores challenges only his armed-robbery
conviction. We view the evidence at trial in the light most favorable to
sustaining the verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).




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                        STATE v. MONTES FLORES
                           Opinion of the Court

jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018), 13-
4031 (2018), and -4033(A)(1) (2018).2

                                DISCUSSION

A.     Constitutional Validity of A.R.S. § 13-1904.

¶5           Montes Flores was convicted under A.R.S. § 13-1904(A)
(2018), which provides that an armed robbery occurs when one who
commits robbery:

       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.

¶6              Nothing in the record suggests that Montes Flores used an
actual deadly weapon to commit the robbery. The theory of the prosecution
was that he used his hand to simulate a deadly weapon. Montes Flores
argues the statute is unconstitutionally vague because it is unclear whether
it applies to a robber who uses his hand, not an object, to simulate a weapon.

¶7            We review the constitutionality of a statute de novo. State v.
McDermott, 208 Ariz. 332, 335, ¶ 12 (App. 2004). "When a statute is
challenged as vague, we presume that it is constitutional," and the
complaining party bears the burden of "demonstrating the statute's
invalidity." Id. at 335-36, ¶ 12.

¶8             "A statute is void for vagueness if it fails to give the person of
ordinary intelligence a reasonable opportunity to know what is prohibited,
so that he [or she] may act accordingly." State v. Burbey, 243 Ariz. 145, 149,
¶ 15 (2017) (quotations omitted) (alteration in original). "Such laws violate
due process because they fail to provide fair warning of criminal conduct
and do not provide clear standards to law enforcement to avoid arbitrary
or discriminatory enforcement." Id. "Due process does not require,
however, that a statute be drafted with absolute precision." State v. Burke,
238 Ariz. 322, 326, ¶ 6 (App. 2015) (quotation omitted). "It requires only
that the language of a statute convey a definite warning of the proscribed
conduct." Id. (quotation omitted). Accordingly, a "statute is not void for

2      Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.


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                       STATE v. MONTES FLORES
                          Opinion of the Court

vagueness because it fails to explicitly define a term or because it can be
interpreted in more than one way." McDermott, 208 Ariz. at 336, ¶ 13.

¶9            Arizona statutes do not define the term "simulated deadly
weapon." See A.R.S. §§ 13-105 (2018), -1901 (2018), -1904. Citing State v.
Bousley, 171 Ariz. 166 (1992), and State v. Garza Rodriguez, 164 Ariz. 107
(1990), Montes Flores contends case authorities have created confusion by
interpreting the term inconsistently.

¶10            The defendant in Garza Rodriguez was convicted of two armed
robberies even though, like Montes Flores, she carried no weapon. 164
Ariz. at 108. In the first robbery, she approached the cashier's booth of a
self-serve gas station, demanded money and threatened to "shoot the smile
off" the cashier's face. Id. She neither brandished an actual weapon nor
used any object as a simulated weapon. In the second, she demanded
money from a clerk at a convenience store while claiming to possess a gun.
When the clerk challenged her to show the gun, the defendant "began
moving her hands back and forth under the serape she was wearing," but,
as in the first episode, she showed no weapon. Id. The supreme court
reversed both convictions, holding "that a mere verbal threat to use a deadly
weapon, unaccompanied by the actual presence of a deadly weapon,
dangerous instrument or simulated deadly weapon, does not satisfy the
statutory requirement for a charge of armed robbery." Id. at 112.

¶11            In Bousley, the supreme court faced an issue not present in
Garza Rodriguez: "[W]hether a defendant may be convicted of armed
robbery under A.R.S. § 13-1904 when he commits robbery while positioning
a part of his body under his clothing in such a way that he appears to have
a deadly weapon." 171 Ariz. at 167. Distinguishing the prior case, the
Bousley court observed that "[t]he crucial fact in Rodriguez was that nothing
resembling a weapon was actually present; the defendant simply implied
that she had a gun when she threatened to 'shoot the smile off' the cashier's
face." Id. at 168. By contrast, the Bousley court reasoned that when robbers
"positioned their hands" to make it appear they are carrying weapons,
"simulated weapons were actually present." Id. In such circumstances,
Bousley announced, Garza Rodriguez "is not controlling." Id.

¶12          Contrary to Montes Flores's argument, Bousley leaves no
doubt that use of one's concealed hands to create the appearance of a
weapon may satisfy the element of a "simulated deadly weapon" in § 13-
1904. Because the term "simulated deadly weapon," as used in the statute
and interpreted by controlling case law, adequately describes the
proscribed conduct, the statute is not unconstitutionally vague.


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                        STATE v. MONTES FLORES
                           Opinion of the Court

B.     Constructive Amendment to the Indictment.

¶13          Montes Flores also argues the superior court erred by
impliedly amending the indictment through the instructions it gave the
jury. He argues the resulting amendment was not a mere correction of a
mistake or defect, but a substantive change to the charge against him, in
violation of Arizona Rule of Criminal Procedure 13.5(b) and the Sixth
Amendment.

¶14          As relevant here, the indictment charged Montes Flores with
"taking property of another . . . while . . . armed with a . . . simulated deadly
weapon." Although those words describe a crime charged under subpart
(A)(1) of § 13-1904, the superior court's instructions to the jury instead
mirrored subpart (A)(2) of the statute by informing jurors they could
convict Montes Flores if they found he "used or threatened to use a
simulated deadly weapon" in the robbery.

¶15           Because Montes Flores failed to object in the superior court,
we review only for fundamental, prejudicial error. See State v. Henderson,
210 Ariz. 561, 567-68, ¶¶ 19-20 (2005); see also State v. Freeney, 223 Ariz. 110,
114, ¶ 23 (2009) (violations of Rule 13.5(b) "do not fall into [the] category" of
structural error). "Fundamental error is limited to those rare cases that
involve error going to the foundation of the case, error that takes from the
defendant a right essential to his defense, and error of such magnitude that
the defendant could not possibly have received a fair trial." State v. Valverde,
220 Ariz. 582, 585, ¶ 12 (2009) (internal quotation omitted). A defendant
arguing fundamental error also must prove "that the error caused him
prejudice." Id.

¶16           An indictment "limits the trial to the specific charge or
charges" alleged. Ariz. R. Crim. P. 13.5(b). "Unless the defendant consents,
a charge may be amended only to correct mistakes of fact or remedy formal
or technical defects." Id. When an indictment is amended to allege an
offense with materially different elements – "even if the two [crimes] are
defined in subsections of the same statute" – the result is a "change in the
nature of the offense" that violates Rule 13.5(b). Freeney, 223 Ariz. at 113,
¶¶ 16-17.

¶17           Separate from Rule 13.5(b), the Sixth Amendment requires
that a defendant receive "actual notice" of the pending charges. Freeney, 223
Ariz. at 114, ¶ 24. But not every violation of Rule 13.5(b) infringes a
defendant's Sixth Amendment right to notice. Freeney, 223 Ariz. at 114, ¶
25. Even when the nature of the offense is changed, if the defendant



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                        STATE v. MONTES FLORES
                           Opinion of the Court

receives "constitutionally adequate notice" of the modification, he is not
prejudiced and the Sixth Amendment is not violated. See id. at ¶ 26. In this
inquiry, the issue is whether the defendant "received actual notice of the
charges" from any source. Id. at 114-15, ¶¶ 24-29 (citing pretrial disclosures,
prosecution's notice of intent to call specific witness, joint pretrial statement
and allegation of dangerousness).

¶18            Here, as Montes Flores argues, the indictment alleged he
possessed a simulated deadly weapon, but the jury was instructed on use or
threatened use of a simulated deadly weapon. Assuming for purposes of
argument that the jury instruction amounted to a material change in the
indictment, see id. at 111, 113, ¶¶ 2, 4, 6, 15-17, we conclude Montes Flores
was not prejudiced by the violation of Rule 13.5(b).3 Viewed in its entirety,
the record reflects Montes Flores knew the State was alleging and intending
to prove that he threatened to use a simulated deadly weapon during the
commission of the robbery.

¶19           In the recorded 9-1-1 call, the store's assistant manager
reported that a man had approached him, "said he had a gun," and
demanded money. When the emergency operator inquired whether the
victim had seen a gun, he stated he had not, but explained he had seen the
robber place "his hand in his waistband." Surveillance video likewise
shows that Montes Flores moved his hand under his shirt and inside his
waistband as he leaned across the counter toward the victim. In addition,
at a settlement conference nearly five months before trial, the prosecutor
asserted that the State would prove that Montes Flores used a simulated
deadly weapon and threats of force to commit the robbery. The
prosecutor's recitation of the requisite elements of the charge referenced §
13-1904(A)(2), not subsection (A)(1). Moreover, the State alleged in the joint
pretrial statement that Montes Flores "committed an armed robbery by
simulating a deadly weapon and coercing the cashier to give him the cash
from the drawer." The use of the verb "simulate" meant that the State was
not going to try to prove that Montes Flores committed armed robbery

3      The issue in Bousley was whether the defendants' pleas were
supported by sufficient factual bases. In that context, the court held the
defendants could be convicted of violating § 13-1904(A)(1) for using their
concealed hands to simulate guns during the robbery and could be
convicted of violating § 13-1904(A)(2) by orally threatening to "blast" a store
clerk as they used their hands to simulate weapons during the robbery. 171
Ariz. at 167-68. As relevant here, the court reasoned that one violates § 13-
1904(A)(1) (robbery while "armed with a . . . simulated deadly weapon") by
committing a robbery while pretending that one's hand is a weapon.


                                       6
                       STATE v. MONTES FLORES
                          Opinion of the Court

while in possession of ("armed" with) a simulated deadly weapon under §
13-1904(A)(1), but that he simulated a deadly weapon during the robbery,
in violation of § 13-1904(A)(2). Thus, Montes Flores had actual notice before
trial that the State intended to prove he used or threatened to use a
simulated deadly weapon in violation of § 13-1904(A)(2).

¶20           Further, Montes Flores has not shown any prejudice from the
purported change in the charge. He has not argued that the amendment
affected his litigation strategy, trial preparation or examination of
witnesses. See Freeney, 223 Ariz. at 115, ¶ 28. Instead, he only argues that
his lawyer focused in closing argument on the absence of an actual weapon
and failed to address any threatened use of a simulated weapon. Although
defense counsel asserted the State had failed to show that Montes Flores
"presented" a deadly simulated weapon to the victim, she also argued that
a robbery does not become armed robbery when the robber claims to have
a gun and places his hand underneath his shirt if he does not expressly
threaten to use a weapon. Thus, Montes Flores's counsel argued the State
failed to prove he committed armed robbery under either (A)(1) or (A)(2).

¶21           On this record, Montes Flores had actual notice of the charges
against him and so suffered no prejudice from the Rule 13.5(b) violation
and no infringement of his rights under the Sixth Amendment. See Freeney,
223 Ariz. at 114, ¶ 26.

C.     Evidence to Support the Conviction.

¶22          Finally, Montes Flores contends the superior court
improperly denied his motion for judgment of acquittal on the armed-
robbery charge.

¶23            We review de novo a superior court's ruling on a motion made
under Arizona Rule of Criminal Procedure 20. State v. West, 226 Ariz. 559,
562, ¶ 15 (2011). "[T]he relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt." Id. at ¶ 16 (quotation omitted) (emphasis omitted). The
evidence may be direct or circumstantial. Id. A judgment of acquittal is
appropriate only when "there is no substantial evidence to support a
conviction." Ariz. R. Crim. P. 20(a)(1). In reviewing the sufficiency of the
evidence, "we do not weigh the evidence; that is the function of the jury."
State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004).

¶24          Under A.R.S. § 13-1902(A) (2018), a person "commits robbery
if in the course of taking any property of another from his person or


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                        STATE v. MONTES FLORES
                           Opinion of the Court

immediate presence and against his will, such person threatens or uses
force against any person with intent either to coerce surrender of property
or to prevent resistance." The court instructed the jury that it could convict
Montes Flores if it found that, in the course of committing robbery, he "used
or threatened to use a simulated deadly weapon." See A.R.S. § 13-
1904(A)(2). A "[t]hreat" means "a verbal or physical menace of imminent
physical injury to a person." A.R.S. § 13-1901(4).

¶25           The victim testified that Montes Flores twice told him, "I have
a gun." Garza Rodriguez, however, held that one may not be convicted of
armed robbery for threatening to use a gun if there is no evidence of an
actual or simulated deadly weapon. 164 Ariz. at 112. Montes Flores argues
there was no evidence he simulated a weapon; he contends his hands were
never hidden beneath his clothing. But the store surveillance video, which
was admitted in evidence and played for the jury, belies Montes Flores's
description of his conduct at the convenience store. The video shows that
in committing the robbery, Montes Flores slipped his hand under his shirt
and the waistband of his pants, then shifted his obscured hand slightly
toward the center of his waistband. By shifting his hand beneath his shirt
and waistband, he created the appearance that he was clutching an object.

¶26            Montes Flores further argues, however, that there was
insufficient evidence the victim was threatened by his words and acts.
While the victim responded to Montes Flores's demand by opening the cash
register and handing him the money, he testified he did not "feel
threatened" by Montes Flores. And, although the victim saw Montes
Flores's hand in his waistband, the video shows that at the moment Montes
Flores shifted his hand beneath his shirt and waistband as if to simulate a
weapon, the victim was not looking at him, but was looking instead in the
direction of the cash register.

¶27            Montes Flores offers no legal authority in support of his
contention that a conviction under § 13-1904(A)(2) for using or threatening
to use a simulated deadly weapon requires proof the victim of the robbery
felt threatened by or even perceived the simulated weapon. The statute
itself contains no reference to the victim's reaction to the defendant's threat
or use of a weapon. Subpart (A)(1) ("armed with" a deadly weapon or
simulated weapon) likewise does not refer to the victim's reaction to the
defendant's weapon or simulated weapon, and Garza Rodriguez expressly
rejected the argument that a conviction under (A)(1) requires proof the
victim saw the weapon or the simulated weapon. 164 Ariz. at 111; see State
v. Snider, 233 Ariz. 243, 246, ¶ 8 (App. 2013) (same). In the absence of
statutory text requiring proof of a particular reaction or response by the


                                      8
                        STATE v. MONTES FLORES
                           Opinion of the Court

victim, we will not impose such a requirement. See In re Ryan A., 202 Ariz.
19, 22, 23, ¶¶ 9, 13 (App. 2002) (conviction for "threatening or intimidating"
under A.R.S. § 13-1202(A)(1) (2018) does not require proof that victim felt
scared or threatened).

¶28            By contrast, in another criminal context, the legislature has
made plain that the victim's response to the defendant's act is a required
element of one variety of the crime of assault. A.R.S. § 13-1203(A)(2) (2018)
("person commits assault by . . . intentionally placing another person in
reasonable apprehension of imminent physical injury"). Consistent with
the text of that statute, we have held that an assault conviction under § 13-
1203(A)(2) requires proof of the victim's mental state. See State v. Garza, 196
Ariz. 210, 211, ¶ 4 (App. 1999) (proof of "apprehension of imminent physical
injury" may be found in victim's demeanor while testifying about the
incident as well as acts victim took in response to defendant's conduct);
State v. Baldenegro, 188 Ariz. 10, 13 (App. 1996) (evidence sufficient to allow
jury to "infer that [victim] acted out of fear or apprehension").

¶29            Further, although subpart (A)(2) of the simple assault statute
directly implicates the victim's response, the same is not true with § 13-
1204(A)(2), under which a person commits aggravated assault by
committing assault using "a deadly weapon or dangerous instrument."
A.R.S. § 13-1204(A)(2). That statute, like § 13-1904(A), does not reference
the victim's perception of or reaction to the use of a weapon, and we have
held that when a defendant uses a deadly weapon to commit an assault
under § 13-1203(A)(2), the State need not prove the victim was placed in
reasonable apprehension of harm by a deadly weapon. See State v. Torres, 156
Ariz. 150, 152 (App. 1988) ("There must be an actual, subjective
apprehension of injury, but the apprehension need not extend to fear of the
gun.") (citations omitted).

¶30           We conclude that, just as aggravated assault by use of a
deadly weapon may be proved without evidence the victim perceived a
deadly weapon, armed robbery under § 13-1904(A)(2) does not require
proof the victim perceived or felt threatened by the defendant's weapon or
simulated weapon. Accordingly, the record contains sufficient evidence
from which a reasonable jury could find that Montes Flores took property
from the victim's immediate presence and against his will, and while
committing that robbery, threatened to use a simulated deadly weapon.
The superior court did not err when it denied Montes Flores's motion for
judgment of acquittal.




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                     STATE v. MONTES FLORES
                        Opinion of the Court

                           CONCLUSION

¶31          For the foregoing reasons, we affirm the convictions and
sentences.




                        AMY M. WOOD • Clerk of the Court
                         FILED: AA




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