State v. Garcia

32 P.3d 188, 272 Kan. 140, 2001 Kan. LEXIS 598

• Court: Supreme Court of Kansas
• Decided: September 28, 2001
• Docket: 79,948
• Status: Published

Opinions

The opinion of the court was delivered by

Davis, J.:

This case comes before us on the State’s petition for review concerning the limited issue of whether the defendant’s conviction for aggravated kidnapping and his conviction of one of two counts of rape or the one count of aggravated criminal sodomy are multiplicitous as found by the Court of Appeals in an unpublished opinion filed December 17, 1999.

In the afternoon of December 7, 1996, defendant Ray F. Garcia visited the home of A.L.R., age 56, and her husband LeRoy, age 65. The defendant had previously visited their home on “many occasions” to see LeRoy, who repaired and sold bicycles in his spare time.

During the early morning hours of the following day, A.L.R. was awakened when she felt something brush up against her arm. The room was dark and A.L.R. could only make out shadows. A.L.R. turned on a light and saw a person bending over at the foot of the bed. The intruder told A.L.R. to turn off the light and pull the covers over her head. A.L.R. testified that she recognized Garcia’s voice immediately.

The intruder asked LeRoy where his money was. When LeRoy did not reply, A.L.R. told the intruder that it was on the bedside table. The intruder then asked about A.L.R.’s money. She told him it was in her purse out in the hall. The intruder instructed A.L.R. to get out of bed and retrieve her purse. LeRoy remained in the bed. A.L.R. returned to the bedroom with her purse and the intruder pulled her up against him. The intruder began feeling A.L.R.’s breasts and buttocks while removing her pajamas. The intruder told A.L.R: to get on her knees at the foot of a twin bed that was in the room. The intruder knelt down behind A.L.R. and penetrated her vagina with his penis. The intruder then entered A.L.R.’s rectum, and finally reentered her vagina.

A.L.R. was ordered to return to bed. The intruder proceeded to remove personal property from the bedroom. The intruder asked A.L.R. if she had any tape. She told him where it was located. The intruder returned and taped the hands and feet of A.L.R. and LeRoy. The defendant was in the house for approximately 2 hours before he took A.L.R.’s car and left.

The defendant was charged with one count of aggravated burglary, two counts of rape, one count of aggravated criminal sodomy, two counts of aggravated robbery, one count of aggravated kidnapping, and one count of kidnapping. He was found guilty on all charges.

The Court of Appeals reversed one count of aggravated robbery, vacated the defendant’s conviction for aggravated kidnapping, remanded the case to the trial court for sentencing on kidnapping, and affirmed all other convictions. The defendant’s case was remanded for resentencing. We denied the defendant’s petition for review but granted the State’s petition on the limited issue of whether the Court of Appeals was correct in its determination that the defendant’s convictions for aggravated kidnapping and one of the rape or aggravated sodomy convictions were multiplicitous and in vacating the defendant’s aggravated kidnapping conviction.

Multiplicity

In concluding that multiplicity existed the Court of Appeals stated:

“The evidence which supports tire bodily harm element of aggravated kidnapping is die commission of two rapes and a sodomy. The State charged each act of violence as a separate crime, resulting in two convictions for rape and one for sodomy. There is no other evidence of bodily harm to support die aggravated nature of die kidnapping. Under the facts of diis case, based on the allegations of the complaint and die evidence which the State was required to present, the crime of aggravated kidnapping was multiplicitous with one of die counts of rape or the sodomy.”

There is no dispute that rape (State v. Peltier, 249 Kan. 415, 418, 819 P.2d 628 [1991], cert. denied 505 U.S. 1207 [1992]) and sodomy (State v. Chears, 231 Kan. 161, 165, 643 P.2d 154 [1982]) constitute the infliction of bodily harm.

The State argues that the Court of Appeals erred in finding that multiplicity existed. The State contends that the proper test for multiplicity is based on a comparison of the elements of the crimes, and that when such a comparison is made, multiplicity is not found.

In order to examine the State’s contention, it is necessary to set forth in some detail the law in Kansas with regard to multiplicity. This has been a highly confusing subject in Kansas law, and our prior cases have not always been clear. However, when our prior cases are comprehensively examined, several rules with regard to multiplicity become apparent.

Multiplicity is the charging of a single offense in several counts of a complaint or information. The primary concern with multiplicity is that it creates the potential for multiple punishments for a single offense. State v. Vontress, 266 Kan. 248, 255, 970 P.2d 42 (1998). Such multiple punishments are prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977); State v. Edwards, 250 Kan. 320, 329, 826 P.2d 1355 (1992). However, the Double Jeopardy Clause’s protection against multiple punishments extends only to prevent the sentencing court from prescribing greater punishment than the legislature intended, and where a legislature specifically authorizes cumulative punishment under two statutes for the same offense, the Double Jeopardy Clause is not violated. Missouri v. Hunter, 459 U.S. 359, 366-69, 74 L. Ed. 2d 535, 103 S. Ct. 673 (1982). The question in determining whether convictions of certain crimes are multiplicitous, therefore, necessarily hinges on what the legislature has provided. Even though certain crimes may in fact be traditionally multiplicitous, this does not prevent the legislature from specifically authorizing cumulative punishment if it chooses to do so.

The concept of multiplicity in Kansas comes from two sources. The first is the traditional “common-law” multiplicity concept. This exists where the State attempts to use a single wrongful act as the basis for multiple charges and is based on the merger of the charges. State v. Garnes, 229 Kan. 368, 372, 624 P.2d 448 (1981). This concept has been a part of Kansas law since at least our decision in State v. Colgate, 31 Kan. 511, 515, 3 Pac. 346 (1884), wherein we stated: “[U]pon general principles a single offense cannot be split into separate parts, and the supposed offender be prosecuted for each of such separate parts, although each part may of itself constitute a separate offense.” The test for whether the offenses merge and are, therefore, multiplicitous is whether each offense charged requires proof of a fact not required in proving the other; if so, then the offenses do not merge and are not multiplicitous. Garnes, 229 Kan. at 373. Offenses also do not merge if they are committed separately and severally at different times and at different places. 229 Kan. at 373.

The defendant’s conviction for aggravated kidnapping and either one of the rape convictions or the aggravated criminal sodomy conviction are not multiplicitous under the traditional “common-law” multiplicity concept, as both rape charges and the aggravated criminal sodomy charge require an element not found in the aggravated kidnapping charge. See State v. Chears, 231 Kan. at 163 (holding that aggravated kidnapping and sodomy were not multiplicitous, even though sodomy was used to supply the element of bodily harm required for aggravated kidnapping); State v. Brown, 181 Kan. 375, 389-90, 312 P.2d 832 (1957) (holding that rape, even though supplying the essential element of bodily harm required for first-degree kidnapping, was a separate and distinct offense, and the offenses were not multiplicitous).

However, the legislature added another layer to the multiplicity analysis with the passage of K.S.A. 21-3107. See State v. Freeman, 236 Kan. 274, 281, 689 P.2d 885 (1984) (noting that 21-3107 “formulates the limitations upon unfair multiplicity of convictions or prosecutions”). K.S.A. 21-3107(1) provided:

“When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.”

Thus, under K.S.A. 21-3107(1), a prosecutor is free to charge multiplicitous crimes. State v. Edwards, 250 Kan. at 329. The mere charging of multiplicitous crimes and prosecution of them is not a violation of the Double Jeopardy Clause so long as the defendant is not punished more than once for the same crime. State v. Mincey, 265 Kan. 257, 262, 963 P.2d 403 (1998).

The-version of K.S.A. 21-3107(2) in effect at the time the defendant committed the crimes we now consider provided in pertinent part: “Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both.” Thus, K.S.A. 21-3107(2) adds another layer to the traditional merger test for multiplicity by providing that a defendant may not be convicted of both the offense charged and an included offense. See State v. Rinck, 256 Kan. 848, 849-50, 888 P.2d 845 (1995).

In Rinck, we refused to apply earlier law limiting the test for multiplicity to the traditional common-law elements test, choosing instead to follow recent law incorporating the test for included offenses under K.S.A. 21-3107. 256 Kan. at 850; see State v. Warren, 252 Kan. 169, 180-82, 843 P.2d 224 (1991) (using the included crimes framework as a test for multiplicity); see also State v. Mincey, 265 Kan. at 262-63 (recognizing that the same test is used in determining whether offenses charged in a complaint or information constitute lesser included offenses and multiple charges).

Thus, under Kansas law, crimes are multiplicitous where: (1) the crimes merge, that is, they constitute a single wrongful act, or the same evidence is required to prove both crimes; but if each offense requires proof of a fact not required in proving the other, the offenses do not merge; and (2) one offense is an included offense of the other as provided under K.S.A. 21-3107(2). As a result, the defendant’s convictions must be analyzed not only under the traditional elements test as set forth in Games but also under the legislative test for determining whether one offense is an included offense of the other.

At the time the offenses were committed, K.S.A. 21-3107(2) provided:

“An included crime may be any of the following:

(a) A lesser degree of the same crime;

(b) an attempt to commit the crime charged;

(c) an attempt to commit a lesser degree of the crime charged; or

(d) a crime necessarily proved if the crime charged were proved.”

It is clear that neither rape nor aggravated criminal sodomy is a lesser degree, attempt, or attempt to commit a lesser degree of aggravated kidnapping. Therefore, the sole question is whether one of the rapes or the aggravated criminal sodomy is “a crime necessarily proved if the crime charged (aggravated kidnapping) were proved.” See K.S.A. 21-3107(2)(d).

Bodily harm is an essential element of aggravated kidnapping. The record supports the conclusion that in proving this element the State relied upon one of the rapes or tire aggravated criminal sodomy. In order to prove the aggravated kidnapping, the State necessarily proved that one of the rapes or the aggravated criminal sodomy occurred. In accordance with the provisions of K.S.A. 21-3107, one of the rapes or the aggravated criminal sodomy had to be proved if the crime charged, aggravated kidnapping, was to be proved. Thus, one of the rapes in this case or the aggravated criminal sodomy provided proof of the bodily harm element of aggravated kidnapping. Under these circumstances, one of the rapes or the aggravated criminal sodomy was a crime necessarily proved if the crime of aggravated kidnapping was proved and is, therefore, an included crime under K.S.A. 21-3107(2)(d).

We agree with the Court of Appeals’ determination that the aggravated kidnapping and either one of the rape convictions or the aggravated criminal sodomy conviction were multiplicitous. Under the clear provisions of K.S.A. 21-3107, the defendant’s convictions of aggravated kidnapping, as the crime charged, and one of the included crimes of either rape or aggravated criminal sodomy may not stand. Our decision finds support in two recent cases decided by this court: State v. Warren, 252 Kan. 169, and State v. Vontress, 266 Kan. 248.

In Warren, the defendant argued that his conviction for aiding and abetting aggravated battery was multiplicitous with his conviction for aiding and abetting aggravated robbery. As in the case we now consider, there was no dispute in Warren that a single wrongful act provided the basis for both charges. After a thorough analysis of the traditional multiplicity test, we concluded “that aggravated robbery and aggravated battery are multiplicitous if . . . the same act of violence provided the basis for each conviction.” 252 Kan. at 182.

In Vontresá, the defendant argued that his convictions of aggravated robbery and aggravated battery were multiplicitous in violation of the constitutional protection against double jeopardy. He argued, as does the defendant in this case, that “proof of the same act of violence, the infliction of bodily harm upon [the victim], was necessary to prove both the aggravated robbery and aggravated battery counts.” 266 Kan. at 255. In concluding that the convictions were multiplicitous and that the punishment for both crimes, was a violation of double jeopardy, we noted that the State, in order to prove the bodily harm element of the aggravated robbery, had to prove that the defendant shot the victim, and this same fact also was required to prove the great bodily harm element of aggravated battery. Thus, under the information and instructions, the aggravated battery count required proof of the fact which was also required to prove the aggravated robbery charge, and the convictions were multiplicitous. 266 Kan. at 257.

In the case at hand, the bodily harm needed to prove aggravated kidnapping was the same bodily harm supplied by one of the rape convictions or the aggravated criminal sodomy conviction. Consistent with the Court of Appeals’ decision and our decisions in Warren and Vontress, we conclude that the aggravated kidnapping conviction and one of the rape convictions or the aggravated criminal sodomy conviction are multiplicitous. We, therefore, affirm the Court of Appeals’ decision reversing the defendant’s conviction for aggravated kidnapping and remanding for resentencing on the lesser offense of kidnapping.

It should be noted that in 1998, the Kansas Legislature amended K.S.A. 21-3107 to essentially remove the former K.S.A. 21-3107(2)(d). See L. 1998, ch. 185, § 1. In its place, the legislature inserted a new version, K.S.A. 2000 Supp. 21-3107(2)(b), which provides that an included crime is one where “all of the elements of the lesser crime are identical to some of the elements of the crime charged.” This will necessarily change the multiplicity analysis for cases which occur under the new statute and signifies a return to the identity of the elements standard that this court used prior to the enactment of K.S.A. 21-3107. Such a change, while allowing convictions for crimes which would have been multiplicitous under the statute at issue here, does not violate constitutional prohibitions against double jeopardy as it does not subject defendants to punishments greater than those intended by the legislature. See Missouri v. Hunter, 459 U.S. at 366-69.

The judgment of the Court of Appeals affirming in part and reversing in part the district court is affirmed; the judgment of the district court is affirmed in part and reversed in part, and the case is remanded for resentencing.