Opinion
Nos. 106,494 106,495 106,514.
2013-02-15
STATE of Kansas, Appellee, v. Tremain R. THOMPSON, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
In a consolidated case, a jury convicted Tremain R. Thompson of 1 count of aggravated burglary, 12 counts of aggravated robbery, and 2 counts of aggravated kidnapping for crimes occurring in September 2009. On appeal, Thompson claims: (1) The district court erred in consolidating the charges for trial; (2) the district court erred in denying his motion to suppress witness identifications; (3) the district court violated his constitutional rights to testify or remain silent; (4) two of his aggravated robbery convictions were multiplicitous; (5) there was insufficient evident to support several of his convictions; and (6) he was denied a fair trial based on cumulative error. We find that each of Thompson's claims are without merit, and we affirm the district court's judgment.
On September 12, 2009, Toni Reazin was home with her children. Robert Gann, her ex-boyfriend, called to come and pick up some of his things. Shortly thereafter, Gann and a friend arrived. After moving some things into a taxi, Gann and his friend had sports drinks and smoked cigarettes in Reazin's kitchen. They threw the bottles in the trash and left the cigarette butts in Reazin's ashtray. Afterwards, Gann's friend walked Reazin outside and told her she had to pay him $80 that Gann owed him. Reazin refused. She went back into the kitchen and argued with Gann over the debt, telling both Gann and his friend to leave her house. The friend quickly pulled a knife, put it to Reazin's throat, demanded money, and threatened to kill Reazin's kids if she refused. She gave the friend $420 out of her purse as Gann took her television. Then, the friend took Reazin to her bedroom, had her lay down on her stomach, and he bound her feet. Law enforcement officers showed Reazin a photo array and she identified Thompson as the man who held the knife to her throat. She also identified him at trial. DNA analysis showed Thompson as a likely contributor to the DNA sample taken from a cigarette butt in Reazin's ashtray.
On September 22, 2009, John Kellogg, owner of Hatman Jack's hat store, said a man came in about 15 minutes before the store closed. Kellogg was suspicious because the man acted a bit erratic. The man stacked up a couple of hats and mentioned buying something for his wife. But when the man came up to the counter, he slipped behind Kellogg and pulled out a knife. The man told another employee to pull his pants down and lie on the ground. Kellogg opened the register as the man demanded, and the man took the money. Kellogg also gave the man the money from his wallet. Officers showed Kellogg a photo array and he identified Thompson as the robber. Kellogg also identified Thompson at trial, as well as the knife in evidence.
On September 23, 2009, at around 9:30 a.m., Tim Smith was alone working the register at Battery Mart. A man came up to the counter and asked about a battery located behind Smith. As Smith turned around, something hit him on the back of the head, knocking him unconscious. When he came to, he saw a man running from the store and realized that $250 was missing from the register, as was the money in his wallet. Although police showed him a photo array, Smith could not identify anyone because he did not get a good look at his assailant. Furthermore, Smith could not be sure at trial that Thompson was his attacker.
Jennifer Elezalda testified that on the same date she was riding around with a man she knew as “DC.” He stopped at a Battery Mart and told her to wait in the car. When “DC” came back, Elezalda said he told her that he hit some guy over the head and thought he killed him. She also said “DC” had something like $500 in cash. Elezalda later identified Thompson as the man she knew as “DC,” and officers were aware that “DC” was an alias of Thompson.
On September 28, 2009, around 2:50 p.m., Edith Valencia was working at La Pasadita, a bridal shop. A man came in and said he was looking for a dress for his daughter. He picked out a dress, so Valencia took it to the register to look up the price. As she looked up the price, the man pulled out a large knife and put it to her neck. The man took about $260 from the register and told her to get on the ground, but he fled before she did. Valencia later identified Thompson in a photo array, and she identified the knife and Thompson at trial. Additionally, a security camera captured the entire incident, and the State played the video for the jury.
A little bit after 3 p.m. on September 28, Mira Lira arrived to work at Patty's Too, a clothing store. A man came in and first said he was looking for clothes for his daughter, but they did not sell children's clothing, so he said he was looking for clothes for his girlfriend. Lira and the owner of the store, Patty Haas, attempted to help the man find some clothes. As Lira turned from the register to pull down some clothes, the man pulled out a large knife and demanded money from the register. He told Lira and Haas to lie on the ground on their stomachs, and he took money from the register and from both Lira's and Haas' purses. Officers showed Lira and Haas a photo array, Lira identified Thompson, but Haas did not. At trial, both Lira and Haas identified Thompson as the robber and recognized the knife in evidence.
Around 3:30 p.m. on September 28, Manuela Wilkins was working at Nightcrawlers Bait and Tackle. A man came in and asked her for some lures. When she turned around, the man pulled out a large knife and put it to her throat, demanding money from the register and from her purse. She gave him $132 from the register and $50 from her purse. The man told her to pull down her pants but left before she could. Wilkins did not recognize Thompson in the photo array that officers showed to her, but she did identify Thompson at trial as the man who robbed her. Wilkins also did not recognize the knife in evidence; however, she said that she was too afraid at the time of the robbery to get a good look at the weapon.
The next day, September 29, 2009, at around 11:15 a.m., Darrell Hull was working at Al's Clip Joint. A man walked in and asked for a haircut and also asked if Hull had change for a $50 bill. Hull said he did not have change, so the man went to a woman in a car, apparently to see if she had change. The man came back in and said that he “got it,” then he quickly pulled out a large knife and put it to Hull's throat. He demanded Hull's money, which Hull gave him, and then the man ordered Hull to remove his pants and lie on the ground. Hull saw the man leave in a dull colored car. When shown a photo array, Hull identified a man that was not Thompson, but he identified Thompson at trial and maintained that the person in the photo array was Thompson too, only thinner. Hull testified that the knife in evidence looked like the knife the man had used in the robbery.
Around this time, Lindsey Shephard was in her truck near Al's Clip Joint. She testified that she saw a man running from the business. A car pulled up slowly and the man jumped into the car. Suspicious, Shephard took a mental note of the vehicle's plate number. When she later found out about the robbery, she contacted law enforcement and gave them the plate number: CJJ 330.
Sometime after 11 a.m. on September 29, Angela Maneth was working the cash register at The Sewing Center. A man came in and asked her to cut some fabric. Maneth complied, and when she began to ring up the purchase, the man pulled out a large knife and put it to her neck, demanding money. He took the money from the register, and at some point, a $20 bill the man had in his mouth fell out and onto the floor. As he took the money, another employee came up behind the robber and put a screwdriver in his back. The robber said, “[F]uck this,” and ran. Maneth did not point out Thompson in the investigating officer's photo array, but she was sure at trial that Thompson was the man that robbed her. Although investigators swabbed the $20 bill for DNA, analysis of the swab excluded Thompson as the contributor of the sample.
Around lunchtime on September 29, Karen Strawder was working at New Beginnings Thrift Store. A man walked in, “acting kinda weird,” and asked for men's shirts. Strawder told him they were in the first aisle, and the man walked over and looked at the shirts briefly. He quickly returned to Strawder and asked if she had any men's watches. As Strawder walked back to the jewelry case, she felt someone come up behind her. When she turned around, the man had pulled out a knife and he put it to her side. He told her to open the register, which she did, and he took the money. He then ordered her to lie on the floor and he ran away. Strawder identified Thompson in the investigator's photo array, and at trial, she was sure Thompson was the man that robbed her. She did not, however, recognize the knife in evidence.
A bit later on September 29, Norman Stiles was at his home. A man came to his door between 4:30 and 5 p.m. and asked for a ride to get his brother's car. Stiles liked to help people, so he agreed to give the man a ride. Stiles took him where he requested, but the man changed his mind and told Stiles to take him somewhere else. Stiles complied, and as they were driving, the man told Stiles to pull over so he could get out. The man turned to Stiles and said, “I want to give you something for doing this,” and he then reached into a yellow plastic bag, pulled out a large knife, and put it to Stiles' side. The man then told Stiles to take him to a Commerce Bank ATM and ordered Stiles to withdraw all the money in his account. Stiles did, and he gave the man the $80 from his account and $10 from his pocket. Stiles then took the man to another location, and as the man exited the car, he wiped down the door handles. Stiles did not identify Thompson when he viewed photo arrays, but he identified Thompson at trial. Stiles was not sure the knife in evidence was the same knife the man had used in the robbery.
In the evening of September 29, around 8, a man walked into Lamar's Liquor, where Martha Riggs was working. The man grabbed a single can of Camo black beer, walked up to the register, and put some change on the counter. As Riggs opened the register, the man pulled out a large knife and put it to her neck. The man told her to back up, and when she did, he jumped over the counter and took all the money from the register, about $500 to $600. The man then ordered her onto the ground before he fled out the door and into a dark colored car.
Around 9 p.m., Officer Karen Goebel and her partner, Officer Janette Griggs, were about to head in for the night. They had an active pickup request for Thompson's arrest for robbery and noticed a car that matched the description of the suspected vehicle. The officers followed the car. The car proceeded at a high rate of speed, and when Goebel caught up, she noticed the plate number was 330 CJJ, which was the reverse of what Shephard had reported after the Al's Clip Joint robbery. Goebel turned on the sirens and the car slowed to a stop.
Goebel and Griggs each placed one foot out of their car, and the other car took off. The officers pursued the other vehicle. The car in front slowed, and the driver and passenger jumped out while the car was still moving. Goebel chased the passenger, a male, with her gun drawn because she was worried about the knife. Goebel eventually lost track of the suspect during the foot chase, but another officer found a man hiding. At the same time, Griggs chased the driver of the car, a female. The suspect turned and yelled that she had a gun, so Griggs hit her with a taser and brought her down. The woman had $2,168.67 in her pockets.
Goebel turned Thompson over to Officer Chris Welsh, who found $230 in Thompson's pocket. Welsh took Thompson back to Riggs at Lamar's Liquor Store. Riggs was sitting in another officer's car, and the officer asked if she would let them know if someone they picked up was the man that had robbed her. She agreed. Officer Jason Kimminau, Welsh's partner, took Thompson out of the car and Riggs immediately identified him as the person that robbed her. Meanwhile, Officer Larry Carlson located the suspect vehicle, which had crashed into a parked car. He looked into the car on the floorboard and saw what looked like a knife lying underneath a towel. Carlson also noticed a still-cold can of Camo beer lying next to the rear passenger tire.
The State charged Thompson with numerous crimes in different cases. Prior to trial, the State filed a motion to consolidate all the counts together for a single trial. The district court held a hearing and found that the crimes were of similar character and granted the State's motion to consolidate.
Thompson filed a motion to suppress the witness identifications that arose from law enforcement officers' photo arrays. The district court held a hearing the day before the trial. Thompson's counsel argued that the photo arrays and the show-up identification were highly suggestive and improper. The district court found that the photo arrays were not impermissibly suggestive. Accordingly, the district court denied the motion to suppress and the case proceeded to jury trial.
Before the State closed its case, Thompson's counsel told the district court that Thompson may want to testify, but only to some counts. Thompson's counsel asked the district court if cross-examination would be limited only to the counts about which Thompson testified. The district court replied that once Thompson waived his right not to testify, the State “very likely, could ask questions involving all of the various cases.” The district court said nothing was “set in stone” and that counsel was free to research the issue and present her findings. The next day, however, Thompson's counsel said that regardless of the research, Thompson did not wish to testify. The district court addressed Thompson and inquired whether he understood his rights to testify and to remain silent. The district court advised Thompson that the decision whether to testify was his alone, and Thompson said he did not wish to testify. Thompson did not object to the colloquy.
Thompson did not present any evidence at trial. The district court instructed the jury, including an instruction that each count constituted a separate and distinct offense and that the jury should decide each charge separately. The parties presented their closing arguments. The jury returned verdicts of guilty on 1 count of aggravated burglary, 12 counts of aggravated robbery, and 2 counts of aggravated kidnapping. On May 26, 2011, the district court sentenced Thompson to a total term of 377 months' imprisonment. Thompson timely appealed his convictions.
Consolidating Charges for Trial
Thompson first claims the district court erred in consolidating the charges for trial. K.S.A. 22–3202(1) provides:
“Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
On appeal for a claim of improper joinder, an appellate court makes several inquiries in which it gives different levels of deference to the district court. See State v. Gaither, 283 Kan. 671, Syl. ¶ 4, 156 P.3d 602 (2007). First, the appellate court must determine on which of the conditions precedent of K.S.A. 22–3202(1) the district court relied. Then, the court must decide whether substantial competent evidence supported the district court's findings of fact. Next, the appellate court must conduct a de novo review as to whether those facts were sufficient to meet the particular condition precedent. Lastly, the court reviews the district court's decision to allow joinder for an abuse of discretion, which Thompson bears the burden of proving. See Gaither, 283 Kan. at 684–85;State v. Bunyard, 281 Kan. 392, Syl. ¶ 2, 133 P.3d 14 (2006).
A district court can join multiple crimes together in a single trial if one or more of the following conditions precedent is met: (1) the crimes are of the same or similar character; (2) the crimes are based on the same act or transaction; or (3) the crimes are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. K.S.A. 22–3202(1); State v. Coburn, 38 Kan.App.2d 1036, 1042–43, 176 P.3d 203,rev. denied 286 Kan. 1181 (2008). Where appropriate, “joinder is the rule and severance the exception.” Bunyard, 281 Kan. at 403. The district court joined the charges in this case based on their similar character. To determine whether that decision was correct, the first inquiry is whether substantial competent evidence supported the district court's findings of fact. Gaither, 283 Kan. at 684–85.
The district court determined that the crimes were of similar character because they were all robberies of a person with a knife occurring very close in time. The district court noted that although one crime occurred in a home rather than a business, it was still primarily a robbery of a person with a knife. The district court was correct that 11 out of the 12 robberies were committed with a knife; however, the robbery of Smith at the Battery Mart did not involve the use of a knife. But the crime was still an aggravated robbery because Smith had been struck on the back of the head, knocking him unconscious. Furthermore, in many of the robberies, the assailant ordered the victims to lay on the floor as he fled the scene. While there were some differences in the robberies, substantial competent evidence supported the district court's findings of fact regarding the similarity of each of the crimes.
For the next inquiry, this court reviews de novo whether the facts the district court found were sufficient to establish the similar-character condition precedent for joinder. Gaither, 283 Kan. at 684–85. Crimes are of a similar character when proof will require “ ‘ “the same mode of trial, the same kind of evidence, and the same kind of punishment.” ‘ “ Bunyard, 281 Kan. at 397 (quoting State v. Barksdale, 266 Kan. 498, 507, 973 P.2d 165 [1999] ). Each count in this case required the same mode of trial. For each count the State presented the victim of the robbery, the officers that investigated the crime, and the forensic experts that analyzed the scene. All the robberies occurred within the month of September 2009, most counts within a 2–day period. As the State noted, this was a string of robberies where the primary issue was the identity of the perpetrator.
Review of the record shows marked similarities between each crime. The attacker initially interacted with the victim calmly. Then he pulled a knife (except for one robbery) after distracting the victim. The attacker put the knife to the victim's body and demanded money. After receiving money, the attacker usually demanded that the victim lie on the floor as he fled the scene. Without detailing every encounter, the crimes were not distinct enough that severance—the exception to joinder—was necessary. See, e.g., Barksdale, 266 Kan. at 509 (joinder not abuse of discretion where incidents occurred within a month, attacker was similarly dressed, committed similar crimes, and made similar demands); State v. Bagby, 231 Kan. 176, 178–79, 642 P.2d 993 (1982). We also note with significance that the district court instructed the jury that each count constituted a separate and distinct offense and that the jury should decide each charge separately. Based on the record, we conclude the district court did not abuse its discretion in consolidating the charges for a single trial.
Motion to Suppress Witness Identifications
Thompson argues that the district court should have suppressed several of the witnesses' identifications because the procedures officers used to elicit them were impermissibly suggestive. He raises three primary concerns: (1) one photo array showed Thompson wearing a prison uniform; (2) in another photo array, Thompson's head appeared larger than the other individuals pictured; and (3) the show-up identification was impermissibly suggestive by its nature.
The admissibility of eyewitness identifications is subject to a bifurcated review. This court first reviews the district court's factual findings for substantial competent evidence. State v. Corbett, 281 Kan. 294, 304, 130 P.3d 1179 (2006). Evidence is substantial and competent when it is legal and relevant such that a reasonable person could accept it as adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). When reviewing factual findings this court does not reweigh the evidence or pass on witness credibility. State v. Reed, 45 Kan.App.2d 372, 378, 247 P.3d 1074,rev. denied 292 Kan. 968 (2011). Next, this court determines whether those factual findings support the district court's legal conclusion to admit the identifications, which is a question of law subject to unlimited review. Corbett, 281 Kan. at 304.
To analyze whether the district court should have excluded an eyewitness identification, this court uses a two-part test. This court first determines “whether the procedure used for making the identification was impermissibly suggestive.” If it was impermissibly suggestive, this court moves on to analyze whether the suggestive procedure “led to a substantial likelihood of misidentification.” Corbett, 281 Kan. at 304. If, under the totality of the circumstances, the identification “bears some indicia of reliability and there is not a substantial likelihood of irreparable misidentification,” then the court should not suppress the evidence. Instead, the jury should assess the weight and credibility of the identification. See 281 Kan. at 305;Reed, 45 Kan.App.2d at 378.
A photo array is impermissibly suggestive if officers highlight an individual or suggest which photo a witness should select. State v. Trammell, 278 Kan. 265, 273, 92 P.3d 1101 (2004). Moreover, a photo array is impermissibly suggestive if the defendant's picture is somehow grossly disproportionate from the other photos. 278 Kan. at 273. As to photo arrays, Thompson makes no contention that officers made any suggestions to witnesses. Rather, Thompson makes an unsupported assertion that depicting him wearing a prison uniform was impermissibly suggestive. Thompson may have been wearing a prison uniform in the photos, but all that is viewable appears to be the collar of an orange shirt. While Thompson's claim that his head is slightly larger than the other individuals depicted is debatable, it cannot be said his picture was grossly disproportionate from the others. After review, the photo arrays do not appear impermissibly suggestive.
As to the show-up identification, Thompson cites Reed to support for his contention that a “one man show up ... is a procedure that is inherently suggestive and impermissible.” In Reed, this court found that there was substantial competent evidence to support the district court's conclusion that the show-up identification was impermissibly suggestive in that particular case. 45 Kan.App.2d at 380–81. But Thompson misconstrues Reed's holding. Here, the district court never found the show-up identification to be impermissibly suggestive. Thompson makes no other substantive argument regarding the suggestive nature of the show-up identification. Although the courts do not favor show-up identifications, they are permissible given that they occur close in time to the crime and help speed up the investigation process. State v. Maybin, 27 Kan.App.2d 189, 202–03, 2 P.3d 179,rev. denied 269 Kan. 938 (2000).
In summary, Thompson has failed to show that the witness identifications in his case were impermissibly suggestive. Thus, this court need not address whether there was a substantial likelihood of misidentification.
Thompson's Right to Testify or Remain Silent
Next, Thompson claims the district court violated his rights under the Fifth and Sixth Amendments to the United States Constitution during its colloquy with Thompson on whether he would testify. A claim that the district court interfered with the constitutional right to present a defense is subject to unlimited review. State v. Carter, 284 Kan. 312, 318–19, 160 P.3d 457 (2007).
At trial, Thompson's counsel asked the district court whether Thompson would be subject to cross examination on all counts if he chose to testify to specific counts. The judge replied that once Thompson waived his right not to testify, the State “very likely, could ask questions involving all of the various cases.” The court advised Thompson's counsel that its conclusion was not “set in stone” and counsel was free to research the issue and present her findings to the court. The next day, Thompson's counsel said she looked at the research and, regardless, Thompson did not wish to testify. Thereafter, the district court addressed Thompson, inquiring whether he understood his rights to testify and to remain silent. The district court advised Thompson that the decision regarding these rights was his alone. Thompson raised no objection to the inquiry.
“Constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review.” State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). Thus, Thompson has probably failed to preserve this issue for appeal. Even if Thompson did preserve the issue, his claim is without merit.
Thompson alleges that the district court's colloquy with him and his defense counsel infringed on his right to present a defense. Thompson makes the conclusory assertion that any inquiry by the district court into a defendant's right to testify is error. To support his argument, Thompson cites Taylor v. State, 252 Kan. 98, 843 P.2d 682 (1992). In Taylor, a prisoner raised a collateral attack on his conviction, arguing that the district court has an obligation to inquire into a defendant's desire to testify. The Kansas Supreme Court rejected imposing such an obligation on the district court. The Supreme Court found that imposing an obligation on the district court to inquire into a defendant's desire to testify may sometimes unintentionally influence a defendant to testify. 252 Kan. at 105–06. But a finding that the district court has no obligation to inquire into the defendant's right to testify does not lead to the conclusion that any inquiry by the district court into the defendant's right to testify is error.
Moreover, the record does not lend support to Thompson's allegation that the court's comments made him change his mind about testifying. To reiterate, Thompson's counsel advised the district court that “regardless [of the research on the cross-examination issue], my client does not wish to testify at this point in time.” After this statement, the district court advised Thompson of his rights and asked if it was his decision not to testify. Thompson said he understood his rights and chose not to testify. Given the discussion between the district court and counsel, it was reasonable that the district court wanted to ensure that it was Thompson's own decision not to testify rather than his attorney's. Thompson fails to establish that the district court violated his constitutional rights to testify or remain silent.
Multipliticous Convictions
Next, Thompson argues that his convictions under counts 8 and 9 involving the robberies of Haas and Lira at Patty's Too clothing store were multipliticous and violated the prohibition on double jeopardy. Thompson argues that because he took money from Haas and Lira during the course of robbing a single business, he committed only one offense.
“Multiplicity is the charging of a single offense in several counts of a complaint or information.” State v. Schoonover, 281 Kan. 453, Syl. ¶ 11, 133 P.3d 48 (2006). Whether convictions are multiplicitous is a question of law subject to unlimited review. 281 Kan. at 462.
The Kansas Supreme Court has decided this argument against Thompson. When a defendant forcibly takes property from the person of two different people, the defendant's actions support two distinct robberies. State v. Pham, 281 Kan. 1227, 1251, 136 P.3d 919 (2006) (quoting State v. Shoemake, 228 Kan. 572, 577, 618 P.2d 1201 [1980] ). This court is duty bound to follow Kansas Supreme Court precedent. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. ____ (May 4, 2012). Thompson's convictions for counts 8 and 9 were not multiplicitous because he forcibly took money from both Haas and Lira.
Sufficiency of the Evidence
Thompson complains there was insufficient evidence to support several of his convictions. On review for sufficiency of the evidence, an appellate court looks at all the evidence in the light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In conducting this review, the appellate court does not reweigh evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
Thompson contends there was no evidence to support the aggravated burglary of Reazin because there was no evidence he remained in her house without authority. But Reazin testified she told Thompson to leave her house after arguing about paying Thompson $80 that her ex-boyfriend apparently owed him. At that point, Thompson remained in her house without authority and continued to lack authority to be in her house when he robbed her at knifepoint. Thompson's argument on this point fails.
As to the robberies of Haas, Valencia, Kellogg, and Riggs, Thompson simply rehashes his argument that the photo array and show-up identification procedures were impermissibly suggestive. But we have concluded that the witness identifications were not impermissibly suggestive and the evidence was sufficient to support the robberies on each of these counts. See State v. Smith & Miller, 224 Kan. 662, 664–65, 585 P.2d 1006 (1978), modified on other grounds,225 Kan. 199, 588 P.2d 953,cert. denied441 U.S. 964 (1979); State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011) (noting that even the gravest offenses can be supported by circumstantial evidence) cert. denied132 S.Ct. 1594(2012).
Additionally, Thompson complains that because Wilkins could not identify him in the photo arrays and did not believe the knife in evidence looked like the knife her attacker used, there was insufficient evidence on this count. However, Wilkins did identify Thompson as her attacker at trial. And although she said the knife in evidence did not look the same, she said she was afraid and did not look at the knife too closely. Again, her identification was a credibility issue that this court does not reweigh, and other circumstantial evidence supported the conviction on this count. See Hall, 292 Kan. at 859;Ward, 292 Kan. at 581.
As to the robbery of Hull, Thompson again complains that Hull was unable to positively identify him in a photo array. But Hull did identify Thompson at trial, and he thought Thompson was the same man he picked in the photo array, only heavier. They were not the same person. Yet again, Hull's identification was a credibility issue for the jury to weigh and determine. See Hall, 292 Kan. at 859. And other circumstantial evidence linked Thompson to the crime scene, namely, another witness saw a person run from Hull's business and get into a car that had the same plate numbers (although reversed) as the car Thompson later jumped from while trying to elude police.
Regarding the robbery of Maneth, Thompson again stresses that Maneth did not identify him in a photo array. But Maneth did identify Thompson in court. Also, Thompson contends that DNA evidence on the $20 bill excluded him as the person that committed the crime. It is true that Thompson was excluded as the individual that contributed the DNA to the sample. But the DNA analyst testified that because so many people touch money, it is not a good source of DNA. Moreover, simply because Thompson was excluded as a contributor of the DNA sample does not mean he did not touch the $20 bill. He may have touched it in a location that investigators did not swab.
Thompson also alleges that because Stiles described his attacker a bit differently than other witnesses, there was insufficient evidence on this count. But Stiles did identify Thompson in court. Given the timing of the crime and its similarity to the other crimes, circumstantial evidence supported the conviction on this count. See Ward, 292 Kan. at 581.
In summary, Thompson is asking this court to reweigh evidence, which we are unable to do. See Hall, 292 Kan. at 859. After reviewing the extensive record and considering the evidence in the light most favorable to the State, we conclude there was sufficient evidence to support Thompson's convictions on all counts.
Cumulative Error
Thompson argues that multiple errors in his case entitle him to reversal of his convictions. To determine whether there has been cumulative error, an appellate court reviews “ ‘whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial.’ “ State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010). A single error cannot constitute cumulative error. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010). Because we are finding no error committed by the district court, Thompson's claim based on cumulative error fails.
Affirmed.