State v. Suniville
In State v. Suniville, 741 P.2d 961 (Utah 1987), there was evidence that the appellant robbed a credit union with his right hand concealed inside his coat pocket (which he lifted over the bank counter during the incident). See id. at 962.
An eyewitness testified that the appellant stated, "This is a robbery, don't turn it into a homicide" and "If anyone tries to follow me, I will blast you." Id.
Yet no gun was ever found, and there was no testimony that anyone actually saw a gun during the course of the robbery. See id.
On those facts, the Supreme Court of Utah vacated appellant's aggravated robbery conviction because his "menacing gesture accompanied by verbal threats were not sufficient evidence alone to establish the use of a firearm or a facsimile thereof." Id. at 965.
In State v. Suniville, the defendant pointed his concealed hand at a bank teller and demanded that she give him all her money to prevent the robbery from turning "into a homicide."
Under the prior version of the aggravated robbery statute, which did not include the term "representation," this court ruled that a "defendant's menacing gesture accompanied by verbal threats is not sufficient evidence alone to establish the use of a firearm or a facsimile of a firearm."
The legislature responded to that ruling by adding the term "representation" to the statute, evincing its intent that gestures, at least those accompanied by verbal threats, should be covered by the aggravated robbery statute.