What Is Considered a Deadly Weapon for Aggravated Battery?
Answer: an instrument that, in the manner used, is calculated or likely to produce death or serious bodily injury. The determination that an instrument is a deadly weapon is based upon an objective standard; in other words, an instrument is a deadly weapon if the instrument is used in a manner which a reasonable person would believe likely to produce death or serious bodily injury.
The answer to this question can be found by reading: In re J.A.B., 2003, 77 P.3d 156, 31 Kan.App.2d 1017
In this case a juvenile was adjudicated guilty of aggravated battery and simple assault. The conviction was subsequently appealed.
On April 17, 2002, C.P., the victim, was walking to a friend’s house along with her friend, L.C., and L.C.’s younger brother, W.W. As the group passed the home of D.M., the respondent ran around the house from the backyard carrying a plastic pellet gun, and D.M. closely followed. The respondent ordered the victim, L.C., and W.W. not to move or they would be shot. Id. at 157. The respondent pointed the gun at the victim, who hid behind W.W. The respondent told W.W. to move. When W.W. did not move out of the way, the respondent cocked the gun before saying: “I have to shoot it now.” The respondent turned the gun towards L.C., who jumped behind a tree. The respondent then again aimed the gun at the victim and shot her in the leg. Id. at 157.
The victim shouted when the pellet hit her leg, rubbed her leg where the pellet had stung her, and joined L.C. behind the tree. When the victim peeked out from behind the tree, she noticed that the respondent had handed the gun to D.M., who was reloading it. The victim ran towards L.C.’s house, hearing pellets zinging past her as D.M. continued to shoot at her. Id. at 158. A finding of guilt under K.S.A. 21–3414(a)(2)(B) is a severity level 8-person felony. In order to reach such a finding, the finder of fact must find either that the respondent recklessly inflicted bodily harm on another person with a deadly weapon or recklessly inflicted bodily harm upon another in a manner whereby great bodily harm, disfigurement, or death can result. Id. at 1022.
Here, the weapon used was a hand-held, spring-loaded handgun which fired synthetic nylon pellets. The respondent contends that the district court properly found that the pellet gun cannot be categorized as a deadly weapon. However, the respondent also argues that the manner in which the gun was used could not possibly have caused C.P. great bodily harm, disfigurement, or death. Id. In the context of the aggravated battery statute, a deadly weapon is an instrument that, in the manner used, is calculated or likely to produce death or serious bodily injury. See State v. Whittington, 260 Kan. 873, 878, 926 P.2d 237 (1996). The determination that an instrument is a deadly weapon is based upon an objective standard; in other words, an instrument is a deadly weapon if the instrument is used in a manner which a reasonable person would believe likely to produce death or serious bodily injury. Id. at 1023.
Because the determination of whether an instrument is a deadly weapon is so tied to the circumstances in which the instrument is used, this determination is generally a question reserved to the finder of fact. See State v. Colbert, 244 Kan. 422, 427, 769 P.2d 1168 (1989). Here, the district court made a negative finding concerning the deadly nature of the pellet gun. Id. However, the district court found that the respondent’s actions constituted aggravated battery under the provision which defined the crime as the reckless infliction of bodily harm upon another in a manner whereby great bodily harm, disfigurement, or death can result. Id. When reviewing the sufficiency of the evidence, this court must interpret disputed facts in a light most favorable to the petitioner. See In re B.M.B., 264 Kan. at 433, 955 P.2d 1302. “Given our standard of review, we are satisfied that the record demonstrates a sufficient potential for great bodily harm to the victim to support the district court’s finding that the respondent was guilty of aggravated battery.” Id.
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