Opinion
105,603.
10-10-2014
STATE of Kansas, Appellee, v. Monh SUADY, Appellant.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J. McANANY and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Monh Suady was convicted of aggravated robbery, attempted aggravated robbery, and intentional aggravated battery. On appeal we reversed Suady's conviction of aggravated robbery, finding insufficient evidence to support it. State v. Suady, No. 105,603, 2012 WL 6734503 (Kan.App.2012) (unpublished opinion). Suady also claimed his convictions for aggravated robbery and attempted aggravated robbery were multiplicitous, but we did not address that claim because the reversal of his aggravated robbery conviction rendered the claim moot.
Our Supreme Court granted the State's petition for review. On review, the Supreme Court reversed this court and reinstated Suady's conviction of aggravated robbery and remanded the case to us to consider Suady's claim that his convictions for the aggravated robbery of Price's Durango and the attempted aggravated robbery of Price's wallet are multiplicitous. State v. Suady, 299 Kan. 1001, ____, 327 P.3d 466 (2014).
We need not recount the facts. They are well known to the parties and are set forth in detail in our original opinion and in the Supreme Court's opinion.
Suady contends that because the acts occurred at or near the same time and at the same location—and because there was no intervening event or fresh impulse motivating some of the conduct—the conduct was unitary. The State responds that the taking of Price's Durango and the attempted taking of Price's wallet constitute two separate offenses and do not arise from the same conduct.
Whether convictions are multiplicitous presents an issue of law over which we exercise unlimited review. State v. Sellers, 292 Kan. 346, 356, 253 P.3d 20 (2011). Allegations of multiplicity may be addressed for the first time on appeal in order to serve the ends of justice and prevent a denial of fundamental rights. State v. Colston, 290 Kan. 952, 971, 235 P.3d 1234 (2010).
Multiplicity is the charging of a single offense in several counts of a complaint or information. Multiplicity creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights. Thus, a defendant may not be charged in several counts of a complaint for a single offense. See State v. Sprung, 294 Kan. 300, 306, 277 P.3d 1100 (2012) ; State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006).
Here, the jury was presented with two separate charges for aggravated robbery and attempted aggravated robbery for the events that took place on Interstate 35 on August 26, 2009. The statute at issue here, K.S.A. 21–3427, defines aggravated robbery as robbery “committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” Robbery is “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21–3426.
The jury was instructed that Suady was charged with aggravated robbery for the taking of Price's Durango by force or threat of bodily harm while armed with a dangerous weapon or by inflicting bodily harm on any person in the course of such conduct. The jury also was instructed that Suady was charged with attempted aggravated robbery for attempting to take property from the person or presence of another by force or threat of bodily harm while armed with a dangerous weapon or by inflicting bodily harm on any person in the course of such robbery. The instruction for attempted aggravated robbery did not specify what property Suady was attempting to take, and it also did not identify Price as the victim of the crime. However, in closing argument, the prosecutor identified the count of attempted aggravated robbery as the charge associated with Suady's failed attempt to take Price's wallet.
Suady argues that the convictions are multiplicitous because he had only one motivating impulse—his desire to take Price's money. He asserts that his temporary assertion of control over the Durango was merely incidental to his desire to take Price's money. The State claims that taking Price's Durango was a distinct action which was completed prior to Suady's subsequent pursuit of Price on the interstate and the attempt to take control over Price's wallet.
In our Supreme Court's opinion in Suady, the court rejected Suady's argument that there was insufficient evidence to sustain his conviction for aggravated robbery for the taking of Price's Durango. The majority rejected Suady's argument that he never formed the specific intent to take Price's Durango and that his use of the vehicle was merely incidental to his failed attempt to rob Price of money. The court found that the robbery statute does not contain a requirement of specific intent; the statute requires a taking without distinguishing between intentional and incidental conduct. 299 Kan. at ____, 327 P.3d at 468.
In resolving a multiplicity claim, we must first determine whether the convictions arose from unitary conduct. If so, this court then determines whether, by statutory definition, that conduct constitutes one offense or two. If the conduct constitutes only one offense, then both components are met and there is a double jeopardy violation. State v. Weber, 297 Kan. 805, 809, 304 P.3d 1262 (2013).
The Shoonover court set forth several factors to consider when deciding whether conduct is unitary:
“(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.” 281 Kan. at 497.
Applying those factors to this case, the taking of the Durango happened at the same time and at the same place as the attempted taking of Price's wallet. The State argues that there was an intervening event, and the attempted taking of Price's wallet occurred after Price had jumped out of the Durango. The testimony at trial indicates that Suady demanded Price's money and told him to keep driving. Rather than complying with Suady's request, Price jumped out of the vehicle and attempted to escape. At this point, Suady backed the Durango up 40 to 50 feet and abandoned the Durango in order to facilitate his pursuit of Price's wallet. When Suady's attempt to obtain control over Price's wallet failed, Suady ran up the embankment to escape.
There is an intervening event and fresh impulse present in this case, Suady demanded money from Price while he was driving down the interstate. Price resisted and jumped out of the vehicle rather than turn over his wallet and money to Suady. At this point, Suady's demand for money had failed. Rather than abandoning pursuit, Suady chose to back up the Durango on the interstate and subsequently jump out of the Durango in order to make another attempt to rob Price. When Suady got out of the vehicle, his aggravated robbery for the taking of Price's vehicle was complete. At this point in time, Suady exhibited a fresh impulse in his pursuit of Price. He grabbed at Price's arms and his clothing, again demanding money.
Our Supreme Court has focused on whether an intervening event breaks the chain of causality and provides the defendant with an opportunity to reconsider his or her criminal actions. In Sellers, 292 Kan. at 346, the court was faced with the question of whether two counts of aggravated indecent liberties with a child were multiplicitous. In that case, the defendant touched the victim on her breast until he was interrupted by the family dog making noise in the other room. The defendant left the room for 30 to 90 seconds to check on the dog. When he returned to the room, he touched the victim again, this time in the pubic area. Our Supreme Court found that the defendant's act of leaving the room broke the chain of causality and provided the opportunity for the defendant to reconsider his actions. The court concluded that the defendant's conduct was not unitary, and it affirmed both counts of aggravated indecent liberties with a child. 292 Kan. at 359–60.
Here, though the entire incident lasted a minute or 2, the intervening event was Suady's decision to abandon the vehicle after the aggravated robbery of Price's vehicle was complete. Price's unanticipated jump from the vehicle was an intervening event which provided Suady with the opportunity to reconsider his decision to rob Price. Suady could have abandoned his pursuit of Price after Price jumped from the vehicle. Instead, a fresh impulse motivated Suady to abandon the vehicle on the interstate in order to pursue Price by foot and attempt to rob him of his wallet and money. The aggravated robbery involved the taking of the vehicle. After the taking of the vehicle was complete, Suady attempted to rob Price of his money.
Suady's two convictions for aggravated robbery and attempted aggravated robbery did not arise from the same act or transaction. An analysis under the second component of the multiplicity analysis is not necessary. Accordingly, we find no multiplicity and affirm Suady's convictions.
Affirmed.