State v. Adams

• Decision Date: 30 October 1987
• Docket Number: No. 59297,59297
• Citation: State v. Adams, 242 Kan. 20, 744 P.2d 833 (Kan. 1987)
• Parties: STATE of Kansas, Appellee, v. Everett L. ADAMS, Appellant.
• Court: Kansas Supreme Court

Page 833

744 P.2d 833

242 Kan. 20

STATE of Kansas, Appellee, v.Everett L. ADAMS, Appellant.

No. 59297.

Supreme Court of Kansas.

Oct. 30, 1987.

Syllabus by the Court

1.A lesser offense is considered a lesser included offense under K.S.A. 1986 Supp. 21-3107(2)(d) when all elements necessary to prove the lesser offense must be present to establish the elements of the greater offense.

2.Under K.S.A. 1986 Supp. 21-3107(2)(d), the offense of driving while under the influence of alcohol is a lesser included offense of involuntary manslaughter where it is alleged as the underlying misdemeanor in the complaint/information, and all of the elements of driving under the influence of alcohol are required to establish the greater offense of involuntary manslaughter.

3.Under the facts of the case, driving while under the influence of alcohol is a lesser included offense of involuntary manslaughter.A conviction of involuntary manslaughter bars a conviction of driving while under the influence of alcohol.

Lucille Marino, Asst. Appellate Defender, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, was with her on brief, for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Debra Barnett, Asst. Dist. Atty., Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., were on brief, for appellee.

ALLEGRUCCI, Justice:

The defendant appeals from convictions on one count of involuntary manslaughter (K.S.A. 1986 Supp. 21-3404) and one count of driving under the influence of alcohol (K.S.A. 1986 Supp. 8-1567).He was sentenced to a term of three to ten years for involuntary manslaughter and a term of six months and fined $200.00 for driving while under the influence, the terms to run concurrently.The Court of Appeals affirmed the convictions in an unpublished opinion.State v. Adams, No. 59,297, decided April 9, 1987.We granted defendant's petition for review.

The charges arise from a motor vehicle accident which occurred at approximately 2:15 p.m. on December 1, 1984, at the intersection of K-15 and Wassall in Sedgwick County, Kansas.The defendant was driving a green pickup truck and was first observed driving erratically on Hydraulic Avenue.The defendant drove across the median and hit the outside curb of the opposite lane of traffic, just missing another car.At the corner of Hydraulic and K-15, the defendant made an improper left turn onto K-15, and continued to weave back and forth across both southbound lanes of K-15.The defendant ran a red light at the intersection of K-15 and Pawnee, nearly striking a vehicle turning left onto Pawnee Street.Upon approaching the intersection of K-15 and Wassall, the defendant weaved through traffic and proceeded through the red light, striking broadside a Chevrolet Vega turning left onto Wassall from K-15.The driver of the Vega died at 3:05 p.m. on December 1, 1984, as a result of massive head and internal injuries received from the collision.

The eyewitnesses to the collision testified that no brake lights appeared on the defendant's green pickup truck prior to impact; the defendant's speed as he entered the intersection was estimated to be between 55 and 70 m.p.h.At the time of the accident, the defendant's blood alcohol concentration was .232.

The defendant testified that, several days prior to the accident, his wife had filed for divorce.On the morning of the accident, he purchased a bottle of rum and went to his home.He was unable to recall anything that occurred thereafter and could not remember anything about the accident or writing the suicide note which was found at his home after the accident.

The defendant first contends that the driving while under the influence of alcohol charge is a lesser included offense of involuntary manslaughter and, therefore, multiplicious pursuant to K.S.A. 1986 Supp. 21-3107(2), which provides:

"Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both.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."

Defendant argues that subparagraph (2)(d) prevents the district court from convicting him of both involuntary manslaughter and driving while under the influence of alcohol.The Court of Appeals rejected defendant's argument and found that the two charges were not multiplicious.The Court of Appeals noted:

"The Kansas Supreme Court in State v. Arnold, 223 Kan. 715, 716-17, 576 P.2d 651(1978), rejected the 'factually related offense' nearly a decade ago, holding that under K.S.A. 21-3107(2)(d) the issue is one of ' "identity of elements." ... [A]ll elements necessary to prove the lesser offense must be present and be required to establish the elements of the greater offense charged.'

"The offense of involuntary manslaughter requires the State to prove (1)the defendant unintentionally killed the victim; (2) it was done in the commission of a misdemeanor in a wanton manner; and (3) the conduct occurred within the jurisdiction of the court.K.S.A. 1986 Supp. 21-3404.DUI requires the State to prove (1)the defendant operated the vehicle; (2)the defendant was under the influence of alcohol while operating the vehicle; and (3) the operation of the vehicle took place within the jurisdiction of the court.K.S.A. 1986 Supp. 8-1567.

"Only the third element is identical.The State could have proven any misdemeanor in order to secure a conviction for involuntary manslaughter.The elements necessary to prove DUI will not be ' "present and required to establish" ' the elements of involuntary manslaughter in every case.State v. Galloway, 238 Kan. 415, 417, 710 P.2d 1320(1985).Thus, we conclude that DUI is not a lesser included offense of involuntary manslaughter even though, in this case, it is the same misdemeanor giving rise to the charge of involuntary manslaughter."

The Court of Appeals was correct in noting that, in State v. Arnold, 223 Kan. 715, 576 P.2d 651(1978), this court rejected the "factually related offense" as a lesser included offense under K.S.A. 1986 Supp. 21-3107(2)(d).However, the Court of Appeals incorrectly interpreted Arnold to limit the application of subparagraph (2)(d) to only a comparison of the two statutes in determining the existence of "identity of elements."Although the Court of Appeals correctly found, in comparing K.S.A. 1986 Supp. 21-3404andK.S.A. 1986 Supp. 8-1567, that there was not an "identity of elements," it incorrectly concluded that driving while under the influence of alcohol was a "factually related offense" and therefore not a lesser included offense of involuntary manslaughter.

In Arnold, we said:

"The third category is the offense which is necessarily committed by the defendant in perpetrating the crime charged or subparagraph (d ) under the statute.Under this section it is impossible to commit the greater offense without first having committed the lesser offense.The offense must not require some additional element which is not needed to constitute the greater offense.In other words, there must be 'identity of elements.' ...

....

"... The factually related offense is the fourth category recognized by some courts as a lesser included offense.The lesser offense is not always included in the greater; its inclusion depends on the allegations in the accusatory pleading.Two Kansas cases, State v. Gibler, 182 Kan. 578, 322 P.2d 829, andState v. Way, 76 Kan. 928, 93 Pac. 159, fall under this category and are followed by the Court of Appeals in its decision."(Emphasis added.)223 Kan. at 716-17, 576 P.2d 651.

In State v. Gibler, 182 Kan. 578, 322 P.2d 829(1958), the defendant was charged with the crime of manslaughter in the fourth degree.He was convicted of driving under the influence.The only issue before the court was whether driving while under the influence of alcohol was a lesser included offense.In finding it was, this court said:

"Whenever a person is charged upon an information with the commission of an offense under one section of the statutes and the offense as thus charged includes another offense under another section of the statutes, the defendant may be found guilty of either offense.In State v. Way, 76 Kan. 928, 93 Pac. 159, a conviction for an offense less than that defined in the statute upon which a prosecution is primarily based may be sustained if the information alleges the existence of all the essential facts constituting such an offense.

....

"It is obvious that the information in the instant case alleged facts which constituted a misdemeanor under G.S. 1949, 8-530; that is, the driving of a vehicle within the state while under the influence of intoxicating liquor.Under the rule of State v. Way, supra, since the information properly alleged the essential elements of an offense under section 8-530 and since it is not questioned that the evidence introduced at the trial was sufficient to support each element, it is apparent that a conviction under this section was proper and must be sustained.The judgment is affirmed."182 Kan. at 580-81, 322 P.2d 829.

What we held in Arnold, and here reaffirm, is that the test to determine "identity of elements" under subparagraph (2)(d) is twofold.First, the statutes defining the lesser offense and the greater offense must be compared to determine if all the elements of the former are included in the latter.Second, if that comparison fails to disclose an "identity of elements," then the court must examine the complaint/information to determine if the elements of the lesser offense are alleged, and if proof thereof is required to establish the greater offense.If it is, then it is a lesser included offense within the meaning of subparagraph (2)(d).

In the present case, it seems...