State v. Childers
| Decision Date | 27 September 1991 |
| Docket Number | No. 65860,65860 |
| Citation | 830 P.2d 50,16 Kan.App.2d 605 |
| Parties | STATE of Kansas, Appellee, v. Grandle CHILDERS II, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. In determining whether a black plastic water pistol is a "dangerous weapon" within the meaning of the statute defining aggravated robbery, Kansas has adopted the subjective test.
2. The "subjective test" to determine a "dangerous weapon" within the meaning of the aggravated robbery statute depends upon the intent of the robber and the reasonable belief of the victim. If the robber intends for a victim to believe the item used in the robbery is a dangerous weapon and the victim reasonably believes such object to be a dangerous weapon, then the item is considered a dangerous weapon.
3. An item may be considered a dangerous weapon under the subjective test even though it is incapable of inflicting serious bodily harm on the victim.
4. An information which alleged that the defendant committed the crime of aggravated robbery by using the words "while armed with a dangerous weapon, to wit: a toy gun," properly charged the defendant with the crime of aggravated robbery.
5. Under the provisions of K.S.A.1989 Supp. 21-4603(3)(a), a trial court must modify a sentence if there is an unequivocal recommendation by the state reception and diagnostic center to do so unless it finds that the safety of the public will be jeopardized and that the welfare of the inmate will not be served by such recommendation. A failure to make both required findings when denying modification under those circumstances is error and requires a remand for reconsideration of the motion to modify.
6. Under the facts shown, the conviction of the defendant of the crime of aggravated robbery while armed with a black, plastic toy water pistol was not erroneous.
Jack Focht, of Focht, Hughey, Hund & Calvert, of Wichita, for appellant.
Jeffrey E. Goering, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before REES, P.J., and DAVIS and LEWIS, JJ.
This appeal is from the defendant's jury convictions of two counts of aggravated robbery. In addition to being convicted of aggravated robbery, the defendant pled nolo contendere to one count of robbery and one count of attempted robbery. As a result of these convictions, the defendant was sentenced to a controlling term of 12 to 42 1/2 years of incarceration.
The defendant raises several issues on appeal. The majority of these issues deal with whether aggravated robbery can be committed with a "toy gun" and with certain evidentiary issues related to that toy gun. The defendant also argues that, based on the recommendation of SRDC, the trial court erred in refusing to modify his sentence. After review, we affirm in part, reverse in part, and remand.
On the evening of October 11 and early morning hours of October 12, 1989, the defendant robbed a Kwik Shop in Wichita on two different occasions. These activities by the defendant are the bases of his convictions of aggravated robbery.
The evening's events began at approximately 11:30 p.m. on October 11, 1989. At that time, the defendant entered a Kwik Shop in Wichita, walked up to the counter, and told a clerk to hand over the money. In the process of committing the robbery, the defendant pulled up his shirt to reveal what appeared to be the butt of a gun in his pants. The defendant asked the two clerks in the shop if they valued their lives and instructed them to give him all of their $20 bills. One of the clerks advised the defendant that he had no $20 bills, whereupon the defendant stated that it did not matter, he would take any bills they had.
Accordingly, the clerk put the money in a paper sack, and the defendant took the money and ran.
The defendant was apparently satisfied with the service he received, because he returned to the same Kwik Shop approximately four hours later. On this occasion, one of the clerks from the earlier robbery was on the telephone when the defendant entered, and he immediately recognized the defendant from his earlier visit. The clerk promptly told his telephone companion to call the police. The defendant walked into the store, picked up a bag of chips and a case of beer, and put the items on the counter. The clerk then told the defendant that it was after hours, and he could not sell him any beer. The defendant, however, was not interested in buying anything. He again pulled up his shirt, revealing the butt of a gun he had placed under the waistband of his pants. While revealing that weapon, he told the clerk, "I don't give a damn about the beer, I want the money that's in the drawer, I'll blow your nuts off." Whereupon, the clerk gave the defendant what money he had left, and the defendant again took the money and left the store.
Within 15 minutes, the defendant was back in the Kwik Shop on a third occasion, although this time he was in the custody of the Wichita Police Department. The clerk promptly identified the defendant as the individual who had robbed him, and the defendant was then arrested and incarcerated.
The "gun" under the defendant's belt was, in fact, only a toy. It was a plastic water pistol that was designed to resemble a "Luger" handgun. We have examined the water pistol in question and find that it does resemble an authentic handgun.
During the course of the two robberies, the defendant did not remove the "gun" from his pants nor wave it around or point it at any occupant of the store. The defendant testified at trial that he did not remove the "gun" from his pants because he wanted his victims to believe that it was a real gun, as he felt such a belief would enhance the chances of a successful robbery.
The two victims testified that they did not know if the "gun" was real or not. One stated that he was "under the impression that [the defendant] had a weapon and he was intending to rob the store." The witness further testified, "I was gonna do as I was told to do." The other victim testified,
During the trial, the State conceded that it could not produce the toy gun in question. It developed that the evidence locker at the police station had had a roof collapse during a storm and the gun could not be found. The defendant moved for a mistrial, which was denied. The State moved to amend the information from using the words "while armed with a dangerous weapon, to wit: a handgun," to read, "while armed with a dangerous weapon, to wit: A toy gun." A stipulation was then read to the jury that the "gun" used during the robbery was a "black plastic water pistol."
After the defendant was convicted, the toy gun was, in fact, found at the police station among the defendant's personal belongings. Upon finding the gun, the defendant filed a motion for a new trial on the grounds of newly discovered evidence. This motion was denied.
The defendant's convictions of robbery and attempted robbery come from occurrences which took place after he was arrested and released on bond for the aggravated robberies discussed above. This defendant apparently favors Kwik Shops because, while out on bond awaiting trial, he robbed and attempted to rob a different Kwik Shop. On one occasion, he entered a Kwik Shop and demanded that he be given money from the cash register. The clerk obeyed and gave the defendant the money. On the second occasion, he chose a Coastal Mart, which he entered and demanded money. The Coastal Mart clerks, however, only gave him two packs of cigarettes.
We now turn to the issues raised by the defendant on this appeal.
The defendant raises two issues which will be discussed under this heading. During the trial, the defendant moved for acquittal. After his convictions, he filed a motion for arrest of judgment. He contends, in both instances, that the trial court erred in denying these motions because a toy gun does not meet the definition of a dangerous weapon. The defendant argues that, when the State amended the information to read "while armed with a dangerous weapon, to wit: A toy gun," the information no longer charged a crime since a toy gun is not a dangerous weapon.
The defendant also argues that the trial court erred in instructing the jury on the definition of a dangerous weapon.
Both of these contentions turn on whether a toy water pistol, such as that in the possession of the defendant at the time of the robberies, can be considered a dangerous weapon in the State of Kansas. We have reviewed the law and conclude that the question proposed must be answered in the affirmative.
There have been no cases in Kansas dealing with whether a toy water pistol can be considered a dangerous weapon. However, our Supreme Court has laid the groundwork for a conclusion that a toy weapon may be determined to be a dangerous weapon under our aggravated robbery statute.
The courts in the United States which have considered this issue have roughly divided themselves into two groups. One set of decisions uses an objective method to answer the question while others use a subjective method.
The objective test depends upon whether the object used in accomplishing the robbery was capable of inflicting serious or deadly harm upon another person. If it cannot do so, it is not considered to be a dangerous or deadly weapon in states utilizing the objective test. An example is State v. Luckey, 69 Ohio Op.2d 111, 322 N.E.2d 354 (Ct.App.1974), 81 A.L.R.3d 995. In that case, the Ohio court employed an objective test in holding that a .22 caliber blank starter pistol was not a dangerous weapon and would not support the defendant's conviction of a charge of armed robbery.
The subjective test depends on the intent of the robber and the reasonable belief of the victim. If, in fact, the robber intends...
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