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Click here for the full text of this decision FACTS:Brenda Thaxton was convicted for injury to a child connected to the beating death of her child at the hands of Thaxton’s boyfriend. The jury included a deadly weapon finding, though Thaxton in no way participated in the beating: She was present and did nothing to stop her boyfriend, but she did not encourage, aid or assist in the beating. Thaxton on appeal challenges the deadly weapon finding. HOLDING:Affirmed as modified. Though the court rejects Thaxton’s first argument that a person can never, as a matter of law, use a deadly weapon when performing crimes of omission, the court accepts Thaxton’s second argument: that she cannot have been found to have used a deadly weapon when the weapon contemplated was actually wielded by another and the state did not ask the trial court for a party-charge. It was incumbent upon the state to prove beyond a reasonable doubt that Thaxton herself used or exhibited a deadly weapon. The state could have satisfied this burden by illustrating Thaxton as employing, applying or utilizing the weapon, or possessing it if its possession facilitated the felony. There is no evidence like that here. “In sum, when the State charges one as a principal (as opposed to a party) and tries one for personally using or exhibiting a deadly weapon, it must prove, beyond reasonable doubt, that the accused personally used or exhibited the weapon. And, while the State undertook the former here, it failed in the latter.” OPINION:Quinn, CJ; Quinn, CJ, Reavis and Campbell, JJ.

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