State v. Mincey

945 P.2d 884, 24 Kan. App. 2d 418, 1997 Kan. App. LEXIS 157
CourtCourt of Appeals of Kansas
DecidedOctober 3, 1997
DocketNo. 75,599
StatusPublished

This text of 945 P.2d 884 (State v. Mincey) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mincey, 945 P.2d 884, 24 Kan. App. 2d 418, 1997 Kan. App. LEXIS 157 (kanctapp 1997).

Opinion

Lewis, J.:

Defendant was convicted of aiding and abetting attempted first-degree murder, conspiracy to commit first-degree murder, aiding and abetting aggravated robbery, and conspiracy to commit aggravated robbery. The trial court imposed presumptive sentences on each count and ordered the sentences to run consecutive to one another. Defendant is presently serving a controlling sentence of 206 months. She appeals her convictions on several grounds.

We affirm.

We do not intend to repeat in any detail the extreme violence of the crimes which led to defendant’s convictions. Defendant is the mother of Lewis Mincey, who, along with Everett Hayes, inflicted multiple acts of violence on a victim whose only mistake was to invite them into her home to use the telephone. While in the home, Lewis and Everett robbed the victim, raped her, and cut her throat. The victim feigned death, and the perpetrators at one [419]*419point dropped an 8-pound barbell on her chest to see if she was alive or dead.

Lewis and Everett were both convicted and sentenced for their crimes. Those convictions were upheld by this court in unpublished opinions filed September 13, 1996, and August 23, 1996, respectively.

As we understand the record in this case, defendant was charged with and convicted of the crimes in question based on evidence, highly condensed, that showed the following:

(1) Defendant knew substantially in advance of the crimes that Lewis and Everett were going to rob someone.

(2) Defendant counseled and advised Lewis and Everett to kill their victim if they thought they might be caught.

(3) Defendant loaned Lewis and Everett her van so that they could transport themselves to the scene of the crime.

Defendant raises several issues on appeal.'

MULTIPLICITY

Defendant argues that her convictions for aiding and abetting are multiplicitous with her conspiracy convictions.

We disagree. The question of multiplicity is a question of law over which this court can exercise unlimited review. See State v. Perry, 16 Kan. App. 2d 150, 151, 823 P.2d 804 (1991). Multiplicity was defined by the Supreme Court in State v. Edwards, 250 Kan. 320, 329, 826 P.2d 1355 (1992), as

“ ‘the charging of a single offense in several counts of a complaint or information.’ The concern with multiplicity is that it creates the potential for multiple punishments for the same offense, which is prohibited by the double jeopardy clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Bill of Rights. [Citations omitted.]”

The law on the subject is a bit murky due to conflicting Supreme Court decisions. However, we follow the latest decision of State v. Webber, 260 Kan. 263, 918 P.2d 609 (1996), cert. denied 117 S. Ct. 764 (1997). That decision holds, at Syl. ¶ 9: “Multiplicity exists if the State uses a single wrongful act as the basis for multiple charges. Charges are not multiplicitous if each charge requires [420]*420proof of a fact not required in proving the other.” (Emphasis added.)

The Webber court went on to decide the very issue raised in this case at Syl. ¶ 10: “Conspiracy and aiding and abetting another offense are not multiplicitous. Each offense requires proof of [an] element not required by the other: Conspiracy requires an agreement to commit a crime, while aiding and abetting requires actual participation in the act constituting the offense/’ (Emphasis added.)

“In the trial of a criminal case, multiplicity does not depend upon whether the facts proved at trial are actually used to support conviction of both offenses charged; rather, it turns upon whether the necessary elements of proof of the one crime are included in the other.” 260 Kan. 263, Syl. ¶ 11.

State v. Webber controls and requires that we affirm the trial court. It is obvious that proving the conspiracy charge required proof of an agreement to commit a crime and an overt act in furtherance of the agreement. The proof of the aiding and abetting charges required only proof of actual participation in the crime and an overt act towards the perpetration of the crime. In this case, the conspiracy offenses required proof of an element not required by the aiding and abetting offenses.

Under Webber, we hold that defendant’s multiplicity argument is without merit.

Defendant also argues that her two conspiracy convictions are multiplicitous because we only have one conspiracy statute in Kansas. Defendant advances from this position to argue there was only one agreement, albeit one to commit several crimes, but because there was only one agreement, she cannot be convicted of two separate counts of conspiracy.

We do not agree.

Conspiracy is defined by K.S.A. 21-3302(a) as follows: “A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator.”

[421]*421There is nothing in the Kansas definition of conspiracy to support the argument advanced by defendant. In addition, defendant acknowledges there are no Kansas cases which follow her theory.

There is no question that conspiracy to commit attempted first-degree murder and conspiracy to commit aggravated robbery are two separate crimes. We see nothing in our law that would criminalize the agreement to commit the first crime and forgive all subsequent crimes on which the parties conspire on the basis that they only entered into one agreement to commit several crimes.

Defendant’s argument is without support of our law and is without merit. We hold that when a defendant participates in an agreement to commit multiple separate statutory crimes, the defendant may be convicted of a count of conspiracy for each separate statutory crime involved. It is irrelevant that there may have been only one broad general agreement to commit the several crimes involved.

SUFFICIENCY OF THE EVIDENCE

Our standard of review on sufficiency of the evidence is well known:

“When the sufficiency of the evidence is challenged, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citations omitted.]” State v. Abel, 261 Kan. 331, 337, 932 P.2d 952 (1997).

We have examined the record in this case and conclude that the evidence is such that a rational factfinder could have found defendant guilty beyond a reasonable doubt. It is particularly damning to defendant that she advised Lewis and Everett to kill their victim if they thought they were going to be caught.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Perry
823 P.2d 804 (Court of Appeals of Kansas, 1991)
State v. Webber
918 P.2d 609 (Supreme Court of Kansas, 1996)
State v. Isley
936 P.2d 275 (Supreme Court of Kansas, 1997)
State v. Moncla
936 P.2d 727 (Supreme Court of Kansas, 1997)
State v. Prouse
767 P.2d 1308 (Supreme Court of Kansas, 1989)
State v. Edwards
826 P.2d 1355 (Supreme Court of Kansas, 1992)
State v. Abel
932 P.2d 952 (Supreme Court of Kansas, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
945 P.2d 884, 24 Kan. App. 2d 418, 1997 Kan. App. LEXIS 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mincey-kanctapp-1997.