1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 116,223

STATE OF KANSAS,

Appellee,

v.

TABITHA CARTER,

Appellant.

SYLLABUS BY THE COURT

1.

A district judge's written journal entry showing that a defendant is a violent 

offender subject to the Kansas Offender Registration Act because he or she used a deadly 

weapon in the commission of a person felony is an adequate finding under the Act. 

2.

A "deadly weapon," as that phrase is used in K.S.A. 2019 Supp. 22-4902(e)(2), 

means any firearm or other device, instrument, material, or substance that, from the 

manner in which it is used or is intended to be used, is calculated or likely to produce 

death. Substantial competent evidence supported the district judge's finding in this case 

that a Taser used by the aggravated robbery defendant was a deadly weapon. 

3.

A defendant who displays a weapon to the victim of an aggravated robbery after 

obtaining the money in a store safe, but before leaving the store, brandishes the weapon 

and thus "uses" it in the commission of the robbery, as required by K.S.A. 2019 Supp. 

22-4902(e)(2). 
2

4.

A district judge's finding that a defendant used a deadly weapon in the commission 

of a person felony does not violate the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 

S. Ct. 2348, 147 L. Ed. 2d 435 (2000). 

Review of the judgment of the Court of Appeals in 55 Kan. App. 2d 511, 419 P.3d 55 (2018).

Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed March 6, 2020.

Judgment of the Court of Appeals reversing the district court on the issue subject to review is reversed. 

Judgment of the district court is affirmed. 

Jennifer C. Roth, of Kansas Appellate Defender Office, argued the cause, and was on the briefs

for appellant. 

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, 

and Derek Schmidt, attorney general, were with him on the briefs for appellee.

PER CURIAM: Tabitha Carter robbed a Dollar General using a Taser. A jury 

convicted her of aggravated robbery. The district court judge found that Carter used a 

deadly weapon to commit a person felony and ordered her to register as a violent 

offender under the Kansas Offender Registration Act (KORA), K.S.A. 2019 Supp. 22-

4902(e)(2). Carter appeals, arguing that the registration requirement was procedurally 

unsound and not supported by the evidence. We reject these arguments and affirm 

Carter's registration requirement. 

FACTUAL AND PROCEDURAL BACKGROUND

An individual wearing a clown mask entered a Wichita Dollar General in May 

2015 and demanded the employees, Celia Reyes and Kaylan Sanders, hand over cash 

from the store's safe. While in the store, the robber displayed a Taser. The robber made 

away with over $3,000. 
3

The State charged Carter, a former Dollar General employee, with aggravated 

robbery in violation of K.S.A. 2011 Supp. 21-5420(b)(1). The State alleged that Carter 

robbed Kaylan Sanders "by force or threat of bodily harm . . . while [Carter] was armed 

with a dangerous weapon, to-wit: stun gun or Taser." The case proceeded to a jury trial, 

in which the State's theory was that Reyes was Carter's accomplice while Sanders was 

not.

At trial, Reyes denied that she was involved in the planning or execution of the 

crime and denied that Carter was the robber. Reyes testified that after the robber entered 

the store and was walking towards the safe, she noticed the robber "had something in his 

hands, but I wasn't sure what it was at the time." She said she was fearful the robber

would hurt her and Sanders if they did not give the robber the money. She said, 

"[E]specially after we did give him the money because he—I believe it was a Taser—

because, you know, at first I didn't know what it was. But once he got up close, I believe 

it was a Taser in a black box kind of." Later, she said that when the robber first came into 

the store, she "saw an object in his hand, and so [her] first thought was, is it a gun? And 

my second thought was, I'm really not trying to get shot." She agreed that she was 

"certain that the robber had a weapon" and that the robber showed it to her. 

Sanders testified that she did not see the Taser until after she and Reyes had

handed over the money from the store's safe. Once she and Reyes put the money in the 

robber's bag, she said, "[the robber] pulled out a Taser. And then [Reyes], she was like 

no, please. And then the robber just ran out." Sanders believed that the robber was going 

to tase her. She also testified that the robber pulled the Taser out "almost as if they were 

pulling it out to show us that they have it." 
4

After the jury convicted Carter of aggravated robbery, the district judge imposed a 

downward departure sentence of 36 months in prison. The district judge then asked, "Is 

there anything further we need on the record?" The State replied:

"[STATE]: Your Honor, I believe there would be a duty to register.

"THE COURT: Is there in this case? All right.

"[STATE]: With the finding of the dangerous weapon.

"THE COURT: Well, I do find that there was a dangerous weapon involved. I 

did not prepare—but I will have to prepare the Notice of Duty to Register.

"In that regard, Ms. Carter, there is a duty to register as a—under the Kansas 

Offender Registration Act." (Emphasis added.) 

The district judge checked a box on Carter's journal entry of sentencing form 

stating: "Offender committed the current crime with a deadly weapon as determined by 

the court." The journal entry also set out that the reason for Carter's registration

requirement was: "Any conviction of a person felony with court finding on the record 

that such felony was committed with a deadly weapon—K.S.A. 2012 Supp. 22-

4902(e)(2)." Nothing in the record shows Carter objected to the oral pronouncement or 

the journal entry's checked box. Carter's defense counsel signed off on the journal entry.

Carter appealed her conviction and the district judge's order that she register under 

KORA. A panel of our Court of Appeals affirmed Carter's conviction but held that she 

was not required to register under KORA because, the panel concluded, Carter did not 

use a deadly weapon during the robbery. State v. Carter, 55 Kan. App. 2d 511, 519, 419 

P.3d 55 (2018). 
5

Both parties petitioned for review. This court granted only the State's petition and 

ordered the parties to address whether, given this court's holding in State v. Thomas, 307 

Kan. 733, 750, 415 P.3d 430 (2018), the Court of Appeals had jurisdiction to address the 

registration requirement at all. 

DISCUSSION

As an initial matter, we agree with the parties that we have appellate jurisdiction 

over the registration issue under K.S.A. 2019 Supp. 22-3602(a). See State v. Marinelli, 

307 Kan. 768, 786, 415 P.3d 405 (2018) (defendant may appeal imposition of registration 

requirement as "judgment . . . decision . . . or intermediate order made in the progress of 

the case" under K.S.A. 2018 Supp. 22-3602[a]); Thomas, 307 Kan. at 750. 

KORA requires individuals convicted of certain crimes to register with the State. 

One category of individuals required to register are "violent offenders." KORA provides 

multiple ways in which a person may qualify as a "violent offender" and thus be subject 

to the Act's registration requirement. The relevant section here is K.S.A. 2019 Supp. 22-

4902(e)(2), which defines a violent offender as a person who "on or after July 1, 2006, is 

convicted of any person felony and the court makes a finding on the record that a deadly 

weapon was used in the commission of such person felony." (Emphasis added.)

Carter attacks her registration requirement in three ways. First, she argues that she 

was not required to register because the district judge found only that a dangerous

weapon was involved in her crime, not that she used a deadly weapon in the commission 

of the crime, which was the finding required by the applicable statute. Second, she argues 

there was no evidence in the record to support a finding that she used a deadly weapon.

Third, she argues that the district judge's fact-finding violated Apprendi v. New Jersey, 
6

530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). We address each argument in 

turn. 

Necessity of a Finding on the Record

Recent decisions of this court have made it clear that a district judge must make a 

finding on the record before a KORA obligation to register as a violent offender arises.

See Marinelli, 307 Kan. at 734; Thomas, 307 Kan. at 748-49.

In Thomas, decided the same day as Marinelli, a jury convicted Sheena Thomas of 

aggravated battery with a deadly weapon for attacking another woman with a stiletto 

heel. The district judge did not inform Thomas of a KORA registration requirement at the 

time of her conviction. At sentencing, the district judge told Thomas she must register, 

but at no time did the district judge make a finding on the record that Thomas used a 

deadly weapon in the commission of the crime. There was no oral pronouncement; nor 

did such a finding appear in the journal entry of sentencing. The Court of Appeals panel 

held that the district judge's failure to make the finding meant Thomas could not be 

required to register, and it vacated "that portion of [her] sentence" and remanded for the 

district judge to make the necessary finding. 307 Kan. at 746. 

A majority of this court decided in Thomas that the Court of Appeals remand order 

was error. That majority, building on earlier decisions holding that an obligation to 

register under KORA does not qualify as punishment, see, e.g., State v. Meredith, 306 

Kan. 906, 911, 399 P.3d 859 (2017), ruled that the necessary violent offender finding was 

not part of Thomas' sentence. Further, the district court lost jurisdiction to make the 

finding when the case was docketed for appeal; and that jurisdiction could not be 

resuscitated on remand for a belated finding. 307 Kan. at 749-50.
7

In this case governed by K.S.A. 2019 Supp. 22-4902(e)(2), the district judge made 

an oral finding on the record that there "was a dangerous weapon involved" in Carter's 

crime. This language differed from that required by the statute, but the judge's journal 

entry included a checked box stating that he found Carter used a deadly weapon in the 

commission of her crime. Carter's arguments on appeal entirely disregard the journal 

entry and do not explain why it should not qualify as an adequate KORA finding on the 

record. 

Although Carter might have asserted that a sentence pronounced from the bench 

typically controls over a differing journal entry, see Abasolo v. State, 284 Kan. 299, Syl. 

¶ 3, 160 P.3d 471 (2007), that rule is not applicable here because of the majority holding 

in Thomas that registration is not part of a defendant's sentence.

In the absence of any other argument from Carter to the contrary, we hold that the 

journal entry included in the record of this case shows the district judge made the 

necessary finding under K.S.A. 2019 Supp. 22-4902(e)(2). Thus Carter's first challenge 

to her registration requirement fails.

Substantial Competent Evidence to Support the District Judge's Finding

Carter contends that no evidence supports the district judge's finding that she used 

a deadly weapon in the commission of the robbery. She asks this court to interpret the 

meaning of "deadly weapon" and "used" in K.S.A. 2019 Supp. 22-4902(e)(2).

To the extent these arguments require us to engage in statutory interpretation, de 

novo review applies. State v. Buell, 307 Kan. 604, 606, 412 P.3d 1004 (2018). Insofar as 

Carter argues that the district judge's finding was unsupported, we examine the record to 

determine whether the finding was supported by substantial competent evidence. See 
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State v. Haskins, 262 Kan. 728, 731, 942 P.2d 16 (1997) ("Where the trial court has made 

findings of fact and conclusions of law, the function of an appellate court is to determine 

whether the findings are supported by substantial competent evidence and whether the 

findings are sufficient to support the trial court's conclusions of law.").

Kansas has no statutory definition of "deadly weapon." Instead, appellate courts 

have adopted common-law meanings of "deadly weapon" that vary depending on the 

crime at issue. While the definition of "deadly weapon" when used as an element of a 

crime is well-settled at this point, our Court of Appeals is split on the appropriate 

definition of "deadly weapon" as used in KORA.

The parties' arguments on the meaning of "deadly weapon" in K.S.A. 2019 Supp. 

22-4902(e)(2) frame the issue as one of diametrically opposed objective and subjective 

tests. The Court of Appeals panel embraced this dichotomy in this case by disagreeing 

explicitly with an earlier panel's rubric. See Carter, 55 Kan. App. 2d at 521-23

(discussing State v. Franklin, 44 Kan. App. 2d 156, 160, 234 P.3d 860 [2010]). 

The panel in this case applied what it termed "an objective definition of deadly 

weapon that includes ones calculated or likely to produce either death or serious bodily 

injury." 55 Kan. App. 2d at 518-19; see also Black's Law Dictionary 1909 (11th ed. 2019)

(deadly weapon is "[a]ny firearm or other device, instrument, material, or substance that, 

from the manner in which it is used or is intended to be used, is calculated or likely to 

produce death"); cf. Black's Law Dictionary 1908 (11th ed. 2019) (dangerous weapon is 

"object or device that, because of the way it is used, is capable of causing serious bodily 

injury").
9

The panel said "that the State presented no evidence at trial that a Taser is a deadly 

weapon" and that "[t]here's certainly no common knowledge that a Taser is a deadly 

weapon in the sense that it's likely to cause death." 55 Kan. App. 2d at 519. 

The panel therefore concluded that "Carter didn't use a deadly weapon when she 

committed the robbery." 55 Kan. App. 2d at 519. Accordingly, she could not be required 

to register as a violent offender under KORA. 

The panel forthrightly stated that its objective test contradicted a subjective test 

employed by the earlier panel in Franklin, 44 Kan. App. 2d at 160. Carter, 55 Kan. App. 

2d at 520-21.

In that case, defendant Wayne Franklin pleaded guilty to committing an 

aggravated robbery and attempted aggravated robbery using a BB pistol that the victims 

perceived to be a handgun. The district judge concluded the BB pistol constituted a 

deadly weapon under KORA and ordered Franklin to register. 44 Kan. App. 2d at 157.

Franklin appealed, arguing that the BB pistol was not a deadly weapon under 

KORA. He proposed the panel define "deadly weapon" as "an instrument which, from the 

manner in which it is used, is calculated or likely to produce death or serious bodily 

injury," the same definition of "deadly weapon" used under the aggravated battery statute. 

44 Kan. App. 2d at 158. The State advocated for use of a "subjective test" from the 

aggravated robbery statute: "If the robber intends for the 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." 44 Kan. App. 

2d at 159. The Franklin panel adopted the subjective test, writing it would be "tortured 

and illogical" to use a subjective standard to determine guilt and a different standard 

when considering KORA registration. 44 Kan. App. 2d at 160. 
10

The Franklin panel also noted that it would use the terms "dangerous weapon" and 

"deadly weapon" interchangeably because State v. Colbert, 244 Kan. 422, Syl. ¶ 2, 769 

P.2d 1168 (1989), held that the terms could be exchanged for one another in the context 

of the aggravated robbery statute. Franklin, 44 Kan. App. 2d at 158. Colbert was a jury 

instruction case distinct from the KORA controversy before us. 244 Kan. at 425.

In our view, both the Court of Appeals panel in this case and in Franklin focused 

on the wrong law to arrive at their contrary outcomes. As alluded to above, a majority of 

this court has repeatedly held that KORA is a "nonpunitive civil regulatory scheme" that 

does not inflict additional punishment on registrants. See, e.g., Meredith, 306 Kan. at 

911. In short, this makes KORA distinct from our criminal statutes. The definition of 

"deadly weapon" in a civil regulatory scheme is not tethered to the definitions of "deadly 

weapon" in separate criminal statutes. 

The meaning of "deadly weapon" as it appears in K.S.A. 2019 Supp. 22-

4902(e)(2) is not to be found by choosing between theoretical objective and subjective 

standards. Rather, we follow our usual statutory interpretation practice of giving effect to 

the plain meaning of clear statutory language. See State v. Spencer Gifts, 304 Kan. 755, 

761, 374 P.3d 680 (2016).

Black's Law Dictionary defines "deadly weapon" as "[a]ny firearm or other device, 

instrument, material, or substance that, from the manner in which it is used or is intended 

to be used, is calculated or likely to produce death." Black's Law Dictionary 1909 (11th 

ed. 2019). This is the same resource upon which the panel relied for its "objective" test, 

but we note that this definition actually includes both objective and subjective aspects. 
11

Under this definition, we hold that the district judge had substantial competent 

evidence to support his finding that Carter employed a deadly weapon in the aggravated 

robbery of the Dollar General. 

Carter's overall argument to the contrary is fairly perfunctory. She cites to the 

proprietary website of Axon, the company that manufactures Tasers, quoting its 

promotional statement that Tasers save lives "because lethal force [is] not used." Her 

more persuasive point is that the State put on no evidence of Tasers' lethal properties. 

This criticism is understandable, as it is a matter of common sense that the burden would 

fall to the State to put forth evidence allowing the district judge to conclude Carter used a 

deadly weapon. But, ultimately, the weight of growing common knowledge of Tasers' 

danger saves the State from its misstep.

The Supreme Court of Georgia has recently detailed the operation of Tasers, 

which have two modes, probe and drive-stun: 

"[I]n probe mode, two metal darts shoot out of the front of the TASER and lodge in the 

target's body. The TASER then emits a series of electrical pulses through wires 

connected to the darts over a cycle of five seconds that disrupts the target's central 

nervous system and causes involuntary muscle contractions. In drive-stun mode, two 

electrodes in the front of the TASER are placed in direct contact with, or extremely close 

to, the target's skin. This method also uses a series of electrical pulses over a period of 

five seconds, but it functions by inducing pain rather than involuntary muscle 

contractions." Eberhart v. State, __ Ga. __, 835 S.E.2d 192, 194 n.3 (2019). 

Certainly, Tasers are less likely to kill than firearms but "less lethal" is not the 

same as "not capable of causing death." Incidents from several jurisdictions throughout 

the country amply demonstrate this truth. See, e.g., Oliver v. Fiorino, 586 F.3d 898, 901

(11th Cir. 2009) (facts viewed in light most favorable to plaintiff decedent's estate show
12

police tased decedent "at least eight and as many as eleven or twelve times," causing 

decedent's death); Wilson v. City of Lafayette, 510 Fed. Appx. 775, 776 (10th Cir. 2013) 

(unpublished opinion) (police officer deployed Taser one time to subdue suspect; suspect 

became unresponsive, could not be revived; suspect died of cardiac arrhythmia; parties 

dispute extent to which Taser, preexisting heart condition, extreme exertion contributed 

to death); Kapuscinski v. City of Gibraltar, 2019 WL 1863867, at *1 (E.D. Mich. 2019) 

(unpublished opinion) ("Two police officers responding to a domestic violence call 

deployed their Tasers against David Kapuscinski . . . Mr. Kapuscinski died of cardiac 

arrhythmia shortly thereafter. The incident is an unfortunate reminder that Tasers are 

less-lethal, not non-lethal, weapons."); Eberhart, __ Ga. at __, 835 S.E.2d at 192-97 

(affirming conviction for felony murder predicated on aggravated assault after defendant,

accomplice tased handcuffed man 14 times); As Death Toll Keeps Rising, U.S. 

Communities Start Rethinking Taser Use, Reuters, February 4, 2019, 

https://www.reuters.com/article/us-usa-taser-deaths-insight/as-death-toll-keeps-rising-us-communities-start-rethinking-taser-use-idUSKCN1PT0YT (accessed January 3, 2020) 

(at least 1,081 United States deaths followed use of Tasers; Taser deemed cause,

contributing factor in 21 percent of 779 of the deaths).

In addition, particularly in the context of the commission of a crime, there is no 

reasonable assumption that a perpetrator will use a Taser according to the manufacturer's 

directions and in such a way that minimizes the risk of death of the target. While Tasers 

and stun guns are designed so that the user may apply nonlethal force, that does not mean 

they cannot be misused in a lethal way or with lethal intent. The purpose of a baseball bat 

is to hit line drives and the purpose of a chef's knife is to dice recipe ingredients, but it is 

obvious that a judicial finding that either is "deadly" when used in the commission of a 

person felony is supported by substantial competent evidence.
13

Carter's next argument is that there was no substantial competent evidence she 

"used" the Taser "in the commission of" the aggravated robbery. She pins her hopes to 

Sanders' testimony that she saw the Taser only after Carter had already had Sanders and 

Reyes give her the money from the Dollar General safe. This means, in her estimation, 

that she did not "actively employ the Taser to change the circumstances of the crime. She

did not use it to facilitate commission of the offense." 

Carter cites a 2013 Court of Appeals decision, State v. Dinneen, 48 Kan. App. 2d 

692, 702-03, 297 P.3d 1185 (2013). Charles Dinneen tried to kidnap his ex-girlfriend 

before leading police on a car chase and refusing to hand over his gun after he got out of 

the car. Police shot Dinneen in the leg after he raised his gun during the standoff. 

Dinneen pleaded guilty to attempted kidnapping, criminal threat, and fleeing and eluding. 

48 Kan. App. 2d at 695. The district judge found that Dinneen used a deadly weapon 

when he committed the crime of fleeing and eluding and thus ordered Dinneen to register 

as a violent offender under KORA. Dinneen appealed this finding. 

The Court of Appeals overturned the finding. The panel concluded that the crime 

of felony fleeing and eluding began when Dinneen refused to stop after police attempted 

to stop his car and was completed when he got out of his car. The record showed that 

police knew Dinneen had a gun with him in the car, but "no evidence [was] presented to 

show Dinneen touched, held, or in any manner manipulated the handgun while he was 

inside his vehicle." 48 Kan. App. 2d at 698. This meant that Dinneen did not actually use 

a deadly weapon in the commission of the felony fleeing and eluding. 

The Dinneen decision itself cites Bailey v. United States, 516 U.S. 137, 116 S. Ct. 

501, 133 L. Ed. 2d 472 (1995), which dealt with a federal statute criminalizing the use or 

carrying of a firearm while drug trafficking. The Court noted that "use" can be somewhat 

ambiguous: "Consider the paradoxical statement: 'I use a gun to protect my house, but 
14

I've never had to use it.' 'Use' draws meaning from its context." 516 U.S. at 143. 

Nevertheless, the Court held that the ban on "'use' of a firearm . . . did not reach 'mere 

possession' of the weapon." Abbott v. United States, 562 U.S. 8, 16, 131 S. Ct. 18, 178 L. 

Ed. 2d 348 (2010). Instead, to convict a defendant of "use" of a firearm, the State must 

produce "evidence sufficient to show an active employment of the firearm by the 

defendant, a use that makes the firearm an operative factor in relation to the predicate 

offense." Bailey, 516 U.S. at 143. The Court concluded that "[a]n evidentiary standard for 

finding 'use' that is satisfied in almost every case by evidence of mere possession does not 

adhere to the obvious congressional intent to require more than possession." 516 U.S. at 

144. The Court wrote: 

"The active-employment understanding of 'use' certainly includes brandishing, 

displaying, bartering, striking with, and, most obviously, firing or attempting to fire a 

firearm. We note that this reading compels the conclusion that even an offender's 

reference to a firearm in his possession could satisfy [the statute]. Thus, a reference to a 

firearm calculated to bring about a change in the circumstances of the predicate offense is 

a 'use,' just as the silent but obvious and forceful presence of a gun on a table can be a 

'use.'" 516 U.S. at 148.

Even if we treat Dinneen and Bailey as controlling, and we ignore Reyes' 

testimony about what she saw of the weapon in favor of Sanders' recollection that Carter 

displayed the Taser only after the money was handed over, there was substantial 

competent evidence in the record that Carter "used" the weapon in the commission of the 

crime of aggravated robbery. By taking the Taser out of her pocket and displaying it to 

Sanders, Carter brandished the weapon. The threat that action conveyed helped her to 

complete her crime. 
15

Apprendi

This leaves us with Carter's appellate challenge to the district judge's deadly 

weapon finding as a prohibited Apprendi fact-finding. A majority of this court has 

consistently held that district judges' deadly weapon findings under K.S.A. 2019 Supp. 

22-4902(e)(2) do not constitute impermissible judicial fact-finding prohibited by 

Apprendi. See State v. Perez-Medina, 310 Kan. 525, 539-40, 448 P.3d 446 (2019); State 

v. Huey, 306 Kan. 1005, 1006, 399 P.3d 211 (2017), cert. denied 138 S. Ct. 2673 (2018). 

We do not depart from that holding today.

CONCLUSION

For the foregoing reasons, we reverse the Court of Appeals' decision relieving 

Carter of her obligation to register under KORA as a violent offender. We affirm the 

judgment of the district court. 

PATRICK D. MCANANY, Senior Judge, assigned.1

* * * 

ROSEN, J., dissenting: I respectfully dissent from the majority's conclusion that 

Carter was not erroneously ordered to register under the Kansas Offender Registration 

 

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 

116,223 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the 

vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. 
16

Act (KORA). To begin with, I disagree with the majority's underlying premise that 

KORA is not a sentencing statute that increases the punishment for certain convictions. 

State v. Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127 (2016), reversed the then 

short lived majority in Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (2016), and held 

that Kansas' offender registration requirement does not constitute punishment. I believe 

Petersen-Beard was wrongly decided for all the reasons thoroughly set out by the court in 

Doe v. Thompson and Justice Lee A. Johnson's dissent in State v. Petersen-Beard. 

Starting from the position that KORA is a sentencing statute, the analysis in this 

case must ultimately follow a different path. Carter's offense of conviction, aggravated 

robbery, is not listed as an offense that automatically qualifies a person as a violent 

offender under KORA. See K.S.A. 2019 Supp. 22-4902(e). Instead, as the majority notes, 

Carter could only be required to register if (1) she was convicted of a person felony on or 

after July 1, 2006; and (2) "the court makes a finding on the record that a deadly weapon 

was used in the commission of such person felony." K.S.A. 2019 Supp. 22-4902(e)(2). 

The first requirement was fulfilled because Carter was convicted of aggravated robbery, a 

person felony, in 2012. See K.S.A. 2011 Supp. 21-5420.

As for whether the second requirement is fulfilled, here is where our paths 

diverge. At the sentencing hearing, the district court complied with the State's request to 

find that a dangerous weapon was involved in Carter's crime of conviction. But this is not 

what was required by statute in order to trigger Carter's duty to register. Under K.S.A. 

2019 Supp. 22-4902(e)(2), the court had to find Carter used a deadly weapon in the 

commission of the crime. As a result, the second requirement was not fulfilled by the 

court's finding at the sentencing hearing.

The majority sidesteps this problem by noting the district court made such a 

finding in the journal entry, but this does not fix the problem. Generally, sentencing in a 
17

criminal proceeding takes place when the district court pronounces the sentence from the 

bench. Abasolo v. State, 284 Kan. 299, 304, 160 P.3d 471 (2007). The journal entry is 

merely a record of the sentence imposed, and the district court has no jurisdiction to 

change the sentence after pronouncement. State v. Garcia, 288 Kan. 761, 766, 207 P.3d 

251 (2009). While mandatory conditions of a sentence may be an exception to this rule, 

special conditions, such as the provision of KORA requiring a judicial fact-finding, are 

not. See State v. Marinelli, 307 Kan. 768, 794-95, 415 P.3d 405 (2018) (Rosen, J., 

concurring). Here, the district court did not find at the sentencing hearing that Carter 

committed her crime of conviction using a deadly weapon, so the finding in the journal 

entry is of no effect. 

Moreover, the district court's failure to make the necessary finding at the 

sentencing hearing cannot be resolved by construing the district court's "dangerous 

weapon" finding as a "deadly weapon" finding for the purposes of KORA. Based on the 

plain language of the statute, the court must find the weapon was deadly. And, while a 

deadly weapon is certainly dangerous, a dangerous weapon is not always deadly. 

Compare American Heritage Dictionary 365 (College Edition, 2d, 1982) (defining 

"dangerous" as "[1] [i]nvolving or fraught with danger; perilous; [2] [a]ble or apt to do 

harm"), with American Heritage Dictionary 368 (College Edition, 2d, 1982) (defining 

"deadly" as "[c]ausing or tending to cause death; lethal"); see also Black's Law 

Dictionary 1909 (11th ed. 2019) (defining "deadly weapon" as "[a]ny firearm or other 

device, instrument, material, or substance that, from the manner in which it is used or is 

intended to be used, is calculated or likely to produce death.").

Even if the district court had properly made a deadly weapon finding at the 

sentencing hearing, that finding would still have been in error. Under Apprendi v. New 

Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), "[o]ther than the 

fact of a prior conviction, any fact that increases the penalty for a crime beyond the 
18

prescribed statutory maximum must be submitted to a jury, and proved beyond a 

reasonable doubt." Thus, any finding that Carter used a deadly weapon had to be made by 

a jury, not a judge. 

Finally, even if I were to agree with the majority's position that KORA is a 

nonpunitive civil regulatory scheme, I question whether substantial competent evidence 

would support a finding that Carter used a deadly weapon in the commission of her crime 

of conviction. Use of a deadly weapon is not an element of aggravated robbery. See 

K.S.A. 2011 Supp. 21-5420. And the State did not produce evidence showing Tasers to 

be deadly. 

The majority resolves this problem by relying on "the weight of growing common 

knowledge of Tasers' danger," noting several instances in which the use of a Taser 

resulted in someone's death. Slip op. at 11. But the question here is not whether Tasers 

can be lethal or whether the public knows they can be lethal under certain circumstances. 

Instead, the question is whether Tasers are designed to be lethal or that Carter used the 

Taser in a way that was likely to be lethal. And unlike a baseball bat or a kitchen knife, 

which were not designed to be weapons at all, the Taser was specifically designed as "a 

nonlethal alternative to the use of deadly force by law-enforcement officers." State v. 

Carter, 55 Kan. App. 2d 511, 519, 419 P.3d 55 (2018). And this design purpose is 

certainly common knowledge. As a result, I would hold the district court erred in 

ordering Carter to register under KORA, regardless of whether KORA is punitive or not.

BEIER, J., joins the foregoing dissent.