State v. Dale

• Decision Date: 16 October 2020
• Docket Number: No. 117,162,117,162
• Citation: 474 P.3d 291
• Parties: STATE of Kansas, Appellee, v. Christopher M. DALE, Appellant.
• Court: Kansas Supreme Court

474 P.3d 291

STATE of Kansas, Appellee,

v.Christopher M. DALE, Appellant.

No. 117,162

Supreme Court of Kansas.

Opinion filed October 16, 2020.

Peter T. Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by Luckert, C.J.:

After Christopher Dale took the property of three individuals in one incident, the State charged Dale with two counts of aggravated robbery and one count of theft. Each count related to a different victim. Dale argues the State has divided one criminal offense into three crimes. He claims this violates the guarantee that no person will "be subject for the same offence to be twice put in jeopardy of life or limb" found in the Fifth Amendment to the United States Constitution and a Kansas statute, K.S.A. 21-3107(2)(a) (now codified at K.S.A. 2019 Supp. 21-5109 ).

Only the validity of the two aggravated robbery convictions has been preserved for our consideration. As to those convictions, we reject Dale's arguments and affirm both aggravated robbery convictions.

FACTUAL AND PROCEDURAL BACKGROUND

Dale's convictions arose from events that took place at a skate park where Dale threatened two teenagers with a BB gun while his companion grabbed their property. Dale's involvement followed an earlier incident between the teenagers and his companion.

The encounter began when Dale's companion, a minor, approached three teenagers who had been skateboarding. Dale's companion tried to sell the skateboarders an iPod. Two of the skateboarders—who we will refer to as Adam and Kyle—responded by making fun of Dale's companion. Dale's companion became angry and walked away. He phoned his cousin to ask for a ride. Dale, who was the boyfriend of the cousin, answered the phone and, upon learning what happened, grabbed a BB gun and had his girlfriend drive him to a parking lot near the skate park.

Dale walked from there to the park and met his companion. Dale and his companion approached the skateboarders. The two skateboarders who had teased Dale's companion were sitting beside a pile of belongings that included Adam's iPod and cell phone and the cell phones of Kyle and the third skateboarder. The third skateboarder was skateboarding about 20 to 30 feet away while wearing headphones.

Dale first pushed Adam's head between his legs and pressed the gun behind his ear. When Kyle tried to intervene, Dale came toward him with the gun and put it to his chest. Kyle looked over and saw Dale's companion grab their property. Dale then hit Kyle in the nose with the gun.

Dale and his companion began to run away, but Adam stepped toward Dale and his companion and asked for the property. Dale displayed the gun again, which Adam took as a "warning ... to back off."

Based on these events, the State charged Dale with the aggravated robbery of Adam's cell phone and iPod, the aggravated robbery of Kyle's cell phone, and the theft of the third skateboarder's cell phone. The State charged Dale's companion in juvenile court, after which the companion entered into a plea agreement under which he testified against Dale. A jury convicted Dale on all three counts, and the court sentenced Dale on each count.

Dale appealed to the Court of Appeals, where he argued two jury instruction errors, prosecutorial misconduct, a violation of his right to be present, and ineffective assistance of counsel. The Court of Appeals rejected all of Dale's claims except one about a jury instruction on aggravated robbery. Because of that error, the Court of Appeals reversed Dale's aggravated robbery convictions and remanded for a new trial on the two aggravated robbery counts. State v. Dale , No. 110562, 2015 WL 2414264, at *1, 5-6, 14 (Kan. App. 2015) (unpublished opinion) ( Dale I ), rev. granted in part, remanded to the Court of Appeals for reconsideration in light of State v. Williams , 295 Kan. 506, 516, 286 P.3d 195 (2012) (regarding definition and application of clearly erroneous standard for jury instruction error); State v. Dale , No. 110,562, 2016 WL 687600, at *1 (Kan. App. 2016) (unpublished opinion) ( Dale II ) (explaining the Dale I panel had applied the proper standard when determining the jury instruction was clearly erroneous and otherwise adopting reasoning of Dale I ).

On remand, Dale filed a pretrial motion to bar prosecution on the aggravated robbery counts. He argued the Court of Appeals' decision "finalized" his theft conviction. He also contended his theft conviction arose out of the conduct that supported the aggravated robbery charges and the aggravated robbery charges were therefore barred by K.S.A. 21-3107. Alternatively, raising an issue he had not raised in his appeal, he argued the aggravated robbery counts were multiplicitous—that is, that the State charged him with multiple counts for one offense.

The State responded by arguing Dale's aggravated robbery convictions were not multiplicitous because Dale and his companion took property from each victim. And the State argued the theft of the third skateboarder's property was not a lesser included offense of the aggravated robbery of either Adam or Kyle.

The district court denied Dale's motion. As for the multiplicity issue about the aggravated robberies, the district court reasoned: "If there are two individuals that are right in front of the defendant at the time there is force being applied and their property is taken, I think the jury could find that those are aggravated robberies." Turning to the theft charge, the district court reasoned the third individual's property was not taken from his immediate presence, so "[t]hat's a theft." The court rejected the argument that misdemeanor theft encompassed all the acts of the two aggravated robberies and therefore constituted a double jeopardy violation.

Dale later waived his right to a jury trial and the parties prepared a "Statement of Stipulated Evidence for Trial." The stipulated evidence included testimony and exhibits from the preliminary hearing and the jury trial held before Dale's first appeal. Through the statement of stipulated evidence, Dale continued to assert his previous objections and motions, including his motion to bar prosecution of the aggravated robbery counts.

The district court found Dale guilty on both aggravated robbery counts. Defense counsel moved for reconsideration of Dale's motions and objections made before trial, but the district court rejected all of Dale's arguments and later imposed sentences on each count.

Dale again appealed to the Court of Appeals. The Court of Appeals panel held Dale's two aggravated robbery convictions were not multiplicitous. But the panel held that Dale's convictions for theft and aggravated robbery were improperly multiplicitous. The panel thus reversed Dale's theft conviction citing authority establishing that an appellate court reverses the less-severe offense when faced with multiplicitous convictions. The panel rejected Dale's double jeopardy argument that his theft conviction, affirmed on appeal before the remand, barred retrial for his two aggravated robbery counts. The panel reasoned that had Dale raised his multiplicity argument in his initial direct appeal, he would have only been entitled to have his theft conviction reversed, so Dale did not get a reward for failing to raise this issue prior to the remand. State v. Dale , No. 117,162, 2018 WL 2460263, at *3-4 (Kan. App. 2018) (unpublished opinion) ( Dale III ).

Dale timely petitioned for review. The State did not cross-petition for review of any of the Court of Appeals' holdings. This court granted review and has jurisdiction under K.S.A. 20-3018(b) (petition for review of Court of Appeals decision).

ANALYSIS

In State v. Schoonover , 281 Kan. 453, 463, 133 P.3d 48 (2006), we explained that the Double Jeopardy Clause of the Fifth Amendment "protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." Arguments related to any of the three categories present questions of law over which we have unlimited review without deferring to either the district court or the Court of Appeals. 281 Kan. at 462, 133 P.3d 48.

Dale argues his convictions fall within the second and third categories. Both categories apply only if the involved crimes arise from the "same offense." Determining whether the State has charged a defendant with multiple counts of the same offense requires a multilayered analysis. 281 Kan. at 464, 133 P.3d 48.

1. Unitary Conduct

At the first layer, a court examines the facts to determine whether the charges arise from "discrete and separate acts or courses of conduct" or unitary conduct arising from " ‘the same act or transaction’ " or a " ‘single course of conduct.’ " Double jeopardy concerns arise only if unitary conduct is at issue. 281 Kan. at 464, 133 P.3d 48.

The Court of Appeals held Dale engaged in unitary conduct. Dale III , 2018 WL 2460263, at *2. The State did not file a cross-petition challenging this holding. But under similar circumstances we recently considered the merits as a "necessary subissue requiring [the court's] attention in evaluating [the defendant's] claim rather than a preservation misstep by the State." State v. Hirsh , 310 Kan. 321, 338, 446 P.3d 472 (2019). Cf. State v. Hood , 297 Kan. 388, 392, 300 P.3d 1083 (2013) (noting State did not cross-petition unitary conduct holding but stating, "we would affirm that ruling"). Consistent with Hirsh , we will examine whether the Dale's conduct was unitary.

Courts generally consider four factors when determining whether convictions arise from the same or "unitary" conduct: 1. Did the acts occur at or near the same time? 2. Did the acts occur at the same...