State v. Carter

• Decision Date: 27 April 2018
• Docket Number: No. 116,223,116,223
• Citation: 419 P.3d 55,55 Kan.App.2d 511
• Parties: STATE of Kansas, Appellee, v. Tabitha CARTER, Appellant.
• Court: Kansas Court of Appeals

55 Kan.App.2d 511

419 P.3d 55

STATE of Kansas, Appellee,

v.Tabitha CARTER, Appellant.

No. 116,223

Court of Appeals of Kansas.

Opinion filed April 27, 2018.

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 for Sanders, so Reyes led Carter to the cash register. Sanders came with Reyes.

Carter told the women, "Give [me] all of the money," and said that she wasn't playing. Even so, there was a brief wait by the cash register and an accompanying safe because the safe compartment was designed to open only after setting a timer. While waiting for the safe to open, Reyes and Sanders gave Carter the money from the store's cash-register drawers. Once the safe opened, Reyes and Sanders helped put the remaining money into the bag Carter had placed on the floor.

Carter pulled out what the witnesses later described as a Taser shortly after Reyes had emptied the safe. Until that point, Sanders said she hadn't known Carter had a weapon. After seeing the weapon, the women put their hands up. Reyes pleaded, "No, please," and Sanders said at trial that she had feared that she and Reyes were about to be tased. Carter instead ran from the store, taking $3,440 in cash.

At trial, Carter claimed to have been babysitting at the time of the crime, and a friend of Carter's corroborated that claim. But a sheriff's deputy who was Carter's long-time friend testified that Carter had confessed to her, and the jury convicted Carter of aggravated robbery. The district court sentenced Carter to 36 months in prison. The court also found that Carter had used "a dangerous weapon," which triggered a registration requirement for violent offenders under the Kansas Offender Registration Act.

Carter has appealed to our court. She challenges both the conviction and the finding that she must register under the Kansas Offender Registration Act.

ANALYSIS

I. The State Presented Enough Evidence to Convict Carter of Aggravated Robbery.

Carter's first claim is that the State didn't present enough evidence to convict her of aggravated robbery. When the defendant challenges the sufficiency of evidence in a criminal case, we look to see whether the evidence, when viewed in the State's favor, was enough so that a reasonable fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Robinson , 306 Kan. 1012, 1022-23, 399 P.3d 194 (2017). We look at the evidence in the light most favorable to the State because the fact-finder (here, a jury) has already found in the State's favor. Our job on appeal, of course, is not to reweigh the evidence; we simply decide whether it was enough to support the fact-finder's conclusion. 306 Kan. at 1022-23, 399 P.3d 194.

Let's start by considering Carter's argument that a Taser isn't a dangerous weapon. Carter argues that Tasers were designed not to cause death or serious bodily injury. Even so, as Carter recognizes in her brief, we are considering whether a Taser is a dangerous weapon in the context of an aggravated-robbery charge. And Kansas courts have applied a subjective test when determining whether something is a dangerous weapon under the aggravated-robbery statute. That's because of what makes the crime an aggravated robbery.

A simple robbery is (1) the taking of property from the person or presence of another (2) by force or by threat of bodily harm. It becomes an aggravated robbery if (1) the taking of property (2) by force or by threat of bodily harm (3) came when the defendant was armed with a dangerous weapon or the defendant inflicted bodily injury on someone while carrying out the robbery. See K.S.A. 2014 Supp. 21-5420. In Carter's case, the State charged that Carter took the property from Sanders' presence by threat of bodily harm and charged an aggravated robbery because it alleged Carter had been armed with a dangerous weapon.

When the robbery is carried out by threat of force, the crime necessarily involves both a threat and the response of a victim—from whom the property is taken by threat. So when considering whether a defendant was armed with a dangerous weapon, we apply a subjective test (how the object appeared to the victim) rather than an objective one (whether the weapon truly was dangerous). State v. Colbert , 244 Kan. 422, Syl. ¶ 3, 769 P.2d 1168 (1989). Under that test, Kansas courts have found a starter pistol, an unloaded BB pistol, and a defective gun that couldn't be fired to be dangerous weapons that made an otherwise ordinary robbery an aggravated one because of the victim's perception that the weapon was dangerous. See State v. Davis , 227 Kan. 174, 177, 605 P.2d 572 (1980) (starter pistol); State v. Prince , 227 Kan. 137, 141, 605 P.2d 563 (1980) (unloaded BB pistol); Colbert , 244 Kan. at 425-26, 769 P.2d 1168 (defective gun that couldn't be fired).

The State presented sufficient evidence to show that Sanders, who was listed in the criminal charge and the jury instructions as the victim, viewed Carter's weapon as a dangerous one. A store video showed that Sanders (and Reyes) both raised their hands right away once Carter pulled the Taser out. Sanders told a 911 operator that there was a weapon but she didn't know what it was. Sanders and Reyes both answered yes when the 911 operator asked whether the person had threatened them with the weapon.

Even before showing the weapon, Sanders said the robber had been "yelling in like an aggressive tone," "[t]elling us to give [her] all of the money, and that [she wasn't] playing, and to hurry up." That too would have led Sanders to believe the weapon, once displayed, was a dangerous one. The jury could have reasonably concluded that Sanders perceived the weapon Carter displayed to be a dangerous one.

Carter has a second argument that the evidence didn't prove an aggravated robbery. Under Kansas law, the difference between theft and robbery is whether the property had already been taken before the force or threat occurred. Unless the force or threat precedes or is contemporaneous with the taking of the property, it's just a theft, not a robbery. State v. Bateson , 266 Kan. 238, Syl. ¶ 2, 970 P.2d 1000 (1998). Here, of course, the charge was aggravated robbery, so the State had to show that the use of a dangerous weapon—through which the threat of force was enhanced—took place before or during Carter's taking of the money.

Carter argues that the Taser didn't come out until the money was already in the bag—and that putting the money in the bag completed the robbery. In her appellate brief, she provides a timeline from the store video, suggesting that the last money was put in the bag at 10:01:53. She says that the video then shows Reyes and Sanders putting their hands up at 10:02:08—15 seconds later. Presumably, under Carter's view of the evidence, the Taser came out sometime during those 15 seconds but after the last money was put into the bag. And she cites Sanders' own testimony that it was only "[o]nce we put everything in" the bag that Carter "pulled out a Taser."

But there was some evidence that a weapon was displayed much earlier. Reyes testified that she saw something that she had thought might be a gun shortly after Carter entered the store.

Carter suggests that we should disregard Reyes' testimony because the State suggested at trial that it was likely that Reyes helped Carter commit the robbery. If we were to disregard Reyes' testimony, that would eliminate the only testimony saying that Carter appeared to have something in her hands—perhaps a gun—even before she demanded the store's cash.

We need not disregard Reyes' testimony altogether, but Carter is right that we must consider it within the...