State v. Neal

120 P.3d 366, 34 Kan. App. 2d 485, 2005 Kan. App. LEXIS 973
CourtCourt of Appeals of Kansas
DecidedSeptember 30, 2005
DocketNo. 92,522
StatusPublished
Cited by1 cases

This text of 120 P.3d 366 (State v. Neal) 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. Neal, 120 P.3d 366, 34 Kan. App. 2d 485, 2005 Kan. App. LEXIS 973 (kanctapp 2005).

Opinion

Hill, J.:

In this case Patrick C. Neal punched his rape victim in the face several times. As a result, he was convicted of aggravated battery as well as rape. He now seeks to overturn the aggravated battery conviction. Because a single offense may not be divided into separate parts and the striking of the victim here occurred during a continuous series of events, we reverse Neal’s conviction for aggravated battery.

We also examine other claimed trial errors of improper rebuttal testimony, prosecutorial misconduct during closing argument, and cumulative trial error, but we reject them.

Case History

This crime was committed in Lawrence. The victim, D.G., agreed to give Neal a ride home from a bar in June 2003. On the way, they stopped at a Kwik Shop to use the restroom and get gas. When they arrived at Neal’s apartment, he asked D.G. to give him a “stand-up hug.” D.G. got out of the car and gave Neal a hug. According to D.G., Neal lifted her off of the ground and carried her into a grassy area on the side of the apartment building where it was more concealed from the street. He then pinned her on the ground and raped her. D.G. testified that during the rape, Neal choked her and punched her in the face. D.G. denied consenting to the sexual encounter and fought her assailant with all the might she could muster. After she was allowed to leave, D.G. drove to [487]*487the first open place she could find — a Walgreens drugstore — and told the clerks she needed help.

Neal’s version of the events differs. He contended that they went to his apartment to “hang out with each other.” According to Neal, the sexual activity was consensual. But when D.G. bit him on the shoulder, he “lost [his] temper” and hit D.G. in the face three times and grabbed her around the neck.

A jury convicted Neal of rape and aggravated battery. He was acquitted of aggravated sodomy and aggravated kidnapping charges. The district court sentenced Neal to 267 months for rape and a concurrent 12 months for aggravated battery.

Multiplicity

Neal argues that his aggravated battery and rape convictions are multiplicitous because the force that formed the basis of his aggravated battery conviction was the same force the State used to support his rape conviction. Multiplicity is a term Kansas courts use to describe the illegal practice of prosecuting a single wrongful act as several crimes.

Our rule of review is clear. “Whether convictions are multiplicitous is a question of law subject to unlimited review. [Citation omitted.]” State v. Groves, 278 Kan. 302, 304, 95 P.3d 95 (2004). While Neal failed to raise the multiplicity issue at trial, a claim of multiplicity may be raised for the first time on appeal when necessary to serve the ends of justice and prevent a denial of fundamental rights. 278 Kan. at 303-04.

“ ‘ “Multiplicity is the charging of a single offense in several counts of a complaint or information. The reason multiplicity must be considered is that it creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Constitution Bill of Rights.” ’ [Citation omitted.]” Groves, 278 Kan. at 304.

This means that the State may not split a single offense into separate parts where there is a single wrongful act which does not furnish the basis for more than one criminal prosecution. However, where the criminal conduct of the defendant supports convictions for more than one crime, K.S.A. 21-3102 provides statutory au[488]*488thority for multiple convictions even though the criminal conduct of a defendant consists of a single transaction. State v. Mincey, 265 Kan. 257, 262, 963 P.2d 403 (1998).

“ ‘[U]nder Kansas law, crimes are multiplicitous where: (1) the crimes merge, that is, they constitute a single wrongful act, and 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 [State v. Garnes, 229 Kan. 368, 372-73, 624 P.2d 448 (1981),] but also under the legislative test for determining whether one offense is an included offense of the other.’ [Citation omitted.]” State v. Winters, 276 Kan. 34, 42, 72 P.3d 564 (2003).

Neal maintains that because, under the State’s theoiy, the rape and aggravated battery were “one continuing unbroken act of force,” the convictions are multiplicitous.

Analysis

Whether Neal’s convictions are multiplicitous depends to a great extent on the facts. Neal testified that the entire encounter lasted 15-25 minutes. But when D.G. bit him on the shoulder, he “lost [his] temper.” Neal claimed he grabbed the back of D.G.’s necklace and pulled her down; she then slapped him. Neal “got mad” and hit her. Neal admitted that he hit D.G. in the face three times but claims that during this, D.G. began hitting him back. Neal admitted to grabbing D.G. around the neck when she bit him to calm her down and stop her from hitting him. According to Neal, the batteiy was “[f]airly quick” and then he felt bad and apologized. His attorney argued to the juiy that Neal may be guilty of batteiy, but not rape.

On the other hand, D.G. testified that Neal carried her into the grassy area on the side of the apartment building and dumped all of his weight on her body, pinning her down on the ground. Because she was screaming, Neal wrapped his right hand around her throat and squeezed so she would stop. He then pulled her pants off and ripped off her underwear. Every time Neal would take his hands off of D.G.’s neck, she would scream. According to D.G., Neal “started sticking his fingers in [her] vagina” and she started [489]*489screaming so he “grew very angry that [she] was screaming” and hit her in the eye with a closed fist.

Neal again inserted his fingers into D.G.’s vagina; she screamed and tried to fight back. Neal pulled his right hand back in a clenched fist and said, “ ‘Do you want me to beat you again?’ ” He then continued raping D.G. and had his hands around her throat and slammed her head into the ground several times. D.G. testified that she lost consciousness twice because Neal was squeezing her throat so tightly. According to D.G., at one point Neal turned her over and made her get on her hands and knees. Neal then inserted something into D.G.’s vagina and anus.

D.G. testified that she distinctly remembered Neal hitting her in the face at least twice. When asked by the State what Neal was doing prior to hitting her, she said, “[H]e had his hands inside of me.” According to D.G., after a while Neal stopped attacking her. Neal then asked D.G.

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Related

State v. Holley
175 A.3d 514 (Supreme Court of Connecticut, 2018)

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Bluebook (online)
120 P.3d 366, 34 Kan. App. 2d 485, 2005 Kan. App. LEXIS 973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-neal-kanctapp-2005.