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State v. Carter

Court of Appeals of Kansas

April 27, 2018

State of Kansas, Appellee,
v.
Tabitha Carter, Appellant.

         SYLLABUS BY THE COURT

         1. Under the Kansas aggravated-robbery statute, the defendant commits an aggravated robbery when the taking of property by force or by threat of bodily harm comes when the defendant is armed with a dangerous weapon or the defendant inflicts bodily injury on someone while carrying out the robbery.

         2. To determine whether a defendant was armed with a dangerous weapon for purposes of the aggravated-robbery statute, Kansas courts apply a subjective test that looks at whether the victim perceived the weapon as dangerous.

         3. In this case, in which the victim raised her hands when the defendant pulled out a Taser, the victim told a 911 operator that she had been threatened with a weapon, and the jury reviewed a videotape of the events, sufficient evidence supports the defendant's conviction for aggravated robbery.

         4. Under the Kansas Offender Registration Act, a deadly weapon is a firearm or other device, instrument, material, or substance that, from how it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.

         5. In a case in which no evidence showed that a Taser is a deadly weapon, the defendant's use of a Taser when committing an aggravated robbery does not trigger the registration requirement applicable to a violent offender under the Kansas Offender Registration Act.

          Appeal from Sedgwick District Court; Benjamin L. Burgess, judge.

          Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

          Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Arnold-Burger, C.J., Leben and Powell, JJ.

          Leben, J.

         Tabitha Carter brought a Taser with her when she robbed a Wichita Dollar General store. That led to her conviction for aggravated robbery under a statute that applies when the robber is "armed with a dangerous weapon." And it led to a requirement that she periodically register her residence with authorities under a statute that applies when a person "use[s]" a "deadly weapon" when committing a felony against a person. On appeal, Carter contests both her conviction and the registration requirement.

         Carter argues that she wasn't armed with a dangerous weapon because a Taser isn't truly dangerous and she didn't show the weapon until she had already gotten the money from the store safe. But the Kansas Supreme Court has held that-to support a charge for aggravated robbery-the weapon used need only appear dangerous if the robber deploys it in a manner intended to convince the victim it's dangerous and the victim reasonably believes that it is. See State v. Colbert, 244 Kan. 422, Syl. ¶ 3, 769 P.2d 1168 (1989). That was true here, and the weapon was shown as Carter was still gathering the money. So we affirm her conviction for aggravated robbery.

         But Carter's argument against the registration requirement is a good one. What's important for that purpose is whether Carter used a deadly weapon, not whether the weapon might have appeared to be one. And although deaths can result from Taser use, that's usually not an intended or likely result. So we conclude that a weapon is a deadly one only when, as used, the weapon is likely to cause death. We therefore vacate the registration requirement.

         Factual and Procedural Background

         Carter wore a clown mask when she robbed the Dollar General store, so for a time the police didn't know who had committed the crime. But in this appeal Carter's not contesting that she was the robber, so we start with the knowledge that she was the person behind the mask.

         Two women, Kaylan Sanders and Celia Reyes, were working the closing shift that night. Reyes testified at trial that she saw something in Carter's hands and wondered whether it might be a gun. Reyes said she did not want to be shot and was also concerned ...


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