State v. Montes Flores, 428 P.3d 502

Montes Flores entered a convenience store, told the clerk "I have a gun," slid his hand beneath his shirt/waistband as if holding a weapon, demanded cash, and left in a stolen SUV; surveillance video captured the incident.
Police arrested him after a nearby crash; he was charged with armed robbery (A.R.S. § 13-1904), theft of a means of transportation, and related offenses.
The prosecution’s theory was that Montes Flores used his hand to simulate a deadly weapon (violating § 13-1904(A)(2)).
At trial the indictment alleged he was "armed with a simulated deadly weapon" (language aligned with § 13-1904(A)(1)), but jury instructions tracked § 13-1904(A)(2) ("used or threatened to use").
The jury convicted; Montes Flores appealed raising (1) a vagueness challenge to § 13-1904’s "simulated deadly weapon" language, (2) a constructive amendment/notice Sixth Amendment and Rule 13.5(b) claim based on the instruction/indictment mismatch, and (3) insufficiency of the evidence attacking the armed-robbery conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Vagueness of "simulated deadly weapon" in A.R.S. § 13-1904	Statute is constitutional; case law permits convicting for simulated weapons including concealed hands.	Montes Flores: statute vague as to whether a hand (not an object) can be a "simulated deadly weapon."	Statute not unconstitutionally vague; Bousley permits use of concealed hands to simulate a weapon.
Constructive amendment / Notice (indictment alleged "armed with" but jury told "used or threatened to use")	State: defendant had actual notice from 9-1-1 call, surveillance, pretrial statements, and prosecutor’s representations.	Montes Flores: instruction effectively amended the indictment, violating Rule 13.5(b) and Sixth Amendment.	No prejudicial fundamental error—defendant had actual notice and no shown prejudice to defense strategy.
Sufficiency of evidence for armed robbery under § 13-1904(A)(2)	Evidence (video, victim statement that robber said he had a gun and put hand in waistband) supports that defendant simulated a weapon and threatened use.	Montes Flores: victim didn’t see the simulated weapon at the moment and testified he did not feel threatened, so insufficient evidence.	Evidence sufficient. Conviction may rest on simulation of a weapon by concealed hand even if victim did not perceive it or testify to fear.

State v. Bousley, 171 Ariz. 166 (interpreting that positioning hands under clothing to appear armed can constitute a simulated deadly weapon)
State v. Garza Rodriguez, 164 Ariz. 107 (verbal threat alone, without an actual or simulated weapon, insufficient for armed robbery)
State v. Freeney, 223 Ariz. 110 (Rule 13.5(b) and Sixth Amendment notice analysis; amendments that change elements require actual notice to avoid prejudice)
State v. McDermott, 208 Ariz. 332 (standard of review for statutory vagueness challenges)