State v. Esher

• Decision Date: 16 August 1996
• Docket Number: No. 73839,73839
• Citation: State v. Esher, 922 P.2d 1123, 22 Kan.App.2d 779 (Kan. App. 1996)
• Parties: STATE of Kansas, Appellee, v. Joseph Christopher ESHER, Appellant.
• Court: Kansas Court of Appeals

Page 1123

922 P.2d 1123

22 Kan.App.2d 779

STATE of Kansas, Appellee, v. Joseph Christopher ESHER, Appellant.

No. 73839.

Court of Appeals of Kansas.

Aug. 16, 1996.

Review Denied Nov. 8, 1996.

Syllabus by the Court

1. Multiplicity is the charging of a single offense in several counts of a complaint or information. The problem with multiplicity is that it creates the potential for multiple punishments for the same offense, which is prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and section 10 of the Kansas Constitution Bill of Rights.

2. Under K.S.A. 21-3107(1), a prosecutor is free to charge multiplicitous crimes, but a defendant cannot be punished more than once for the same crime.

3. Multiplicity in a complaint does not deprive the district court of jurisdiction.

4. Voluntary intoxication may be a defense to specific intent crimes, but not to general intent crimes.

5. The distinction between a general intent crime and a specific intent crime is whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited acts.

6. Aggravated battery under K.S.A. 21-3414(a)(1)(C) is not a specific intent crime.

Jean K. Gilles Phillips, Assistant Appellate Defender, David Hall, Student Intern, Steven R. Zinn, Deputy Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

William E. Kennedy III, County Attorney, and Carla J. Stovall, Attorney General, for appellee.

Before GERNON, P.J., ROYSE, J., and WILLIAM F. LYLE, Jr., District Judge, Assigned.

ROYSE, Judge:

Joseph Christopher Esher was convicted by a jury on multiple counts. He appeals, arguing: (1) two of the charges were multiplicitous and (2) the district court erred in refusing to instruct the jury that voluntary intoxication may be a defense to aggravated battery.

The State charged Esher with the crimes of kidnapping, aggravated battery, criminal threat, battery, and assault. At the conclusion of trial, the district court instructed the jury that unlawful restraint is a lesser included offense of the crime of kidnapping. The jury found Esher guilty of unlawful restraint, aggravated battery, criminal threat, battery, and assault.

Esher's first argument on appeal is that the charges of kidnapping and criminal threat are multiplicitous and, therefore, the district court erred in trying him on both counts. Multiplicity is "the charging of a single offense in several counts of a complaint or information." State v. Freeman, 236 Kan. 274, 280, 689 P.2d 885 (1984). The problem with multiplicity is that it creates the potential for multiple punishments for the same offense, which is prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and section 10 of the Kansas Constitution Bill of Rights. State v. Edwards, 250 Kan. 320, 329, 826 P.2d 1355 (1992).

In Freeman, our Supreme Court commented that K.S.A. 21-3107 defines the right of a prosecutor to charge more than one offense based on the same act and to convict on an included offense not specifically charged. Freeman, 236 Kan. at 281, 689 P.2d 885. The court further noted: "The fact that an accused is charged with multiplicitous crimes is not in and of itself a violation of the double jeopardy clause. The clause merely prevents a defendant from being punished more than once for the same crime." 236 Kan. at 282, 689 P.2d 885. See also Edwards, 250 Kan. at 329, 826 P.2d 1355 (under K.S.A. 21-3107, a prosecutor is free to charge multiplicitous crimes, but a defendant cannot be punished more than once for the same crime).

In this case, Esher was not convicted of kidnapping and has not been punished for the crime of kidnapping. His claim that the charges of kidnapping and criminal threat were multiplicitous is without merit.

At oral argument, Esher's appellate counsel argued that multiplicity is a jurisdictional defect. Thus, counsel concluded, the district court was without authority to convict Esher of criminal threat. Esher provides no authority in support of this "jurisdictional" view of multiplicitous charges. Moreover, this argument is contrary to 21-3107 and the Kansas cases regarding multiplicity. For example, in Freeman, 236 Kan. at 282, 689 P.2d 885, the court discussed Arnold v. Wyrick, 646 F.2d 1225 (8th Cir.1981), in which the defendant was charged with both armed criminal action and a lesser included offense of armed criminal action, first-degree robbery. Arnold was convicted only on the lesser included offense and punished only once. The court, therefore, rejected his claim that charging him with both offenses required reversal of his conviction on the lesser offense.

In Freeman, the court also quoted at length from Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). In that case, the United States Supreme Court held Ohio retained authority to continue its prosecution of Johnson on charges of murder and aggravated robbery, despite the fact that Johnson had pled guilty to lesser included offenses which were charged in the same indictment. "While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting respondent for such multiple offenses in a single prosecution." 467 U.S. at 500, 104 S.Ct. at 2541, (quoted in Freeman, 236 Kan. at 285, 689 P.2d 885). See also State v. Kingsley, 252 Kan. 761, 784-87, 851 P.2d 370 (1993) (jury rendered guilty verdicts on charges of first degree murder based on premeditated murder and felony murder).

Two of the principal cases relied on by Esher also contravene the notion that multiplicity is a jurisdictional defect. In State v. Racey, 225 Kan. 404, 590 P.2d 1064 (1979), the defendant argued his convictions for kidnapping and aggravated assault were multiplicitous because they arose out of one continuing unbroken act of force. The Supreme Court agreed and reversed Racey's conviction for aggravated assault. The Supreme Court did not conclude that multiplicity deprived the district court of jurisdiction, however, because it affirmed Racey's conviction for kidnapping. 225 Kan. at 408-09, 590 P.2d 1064. Similarly, in State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976), the Supreme Court determined that Lassley had committed a continuing act of force. The act which constituted aggravated assault was part of the act which established kidnapping. The Supreme Court reversed Lassley's conviction for aggravated assault as multiplicitous. The court, nevertheless, affirmed Lassley's convictions for kidnapping and rape.

In this case, Esher was not convicted of kidnapping. He was not punished more than once for the same crime. For these reasons, his claim that the charges of kidnapping and criminal threat are multiplicitous is without merit.

Esher's second argument on appeal is that the district court erred by refusing to instruct the jury that voluntary intoxication may be a defense to aggravated battery. Voluntary intoxication may be a defense to specific intent crimes, but not to general intent crimes. State v. Johnson, 258 Kan. 475, 485, 905 P.2d 94 (1995); State v. Sterling, 235 Kan. 526, 528-29, 680 P.2d 301 (1984).

General criminal intent is described in K.S.A. 21-3201(a):

"Except as otherwise provided, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless. Proof of intentional conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner."

See State v. Gobin, 216 Kan. 278, 280, 531 P.2d 16 (1975).

Specific intent is distinguished from general intent where "in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited acts." Sterling, 235 Kan. 526, Syl. p 1, 680 P.2d 301; see State v. Bruce, 255 Kan. 388, 394, 874 P.2d 1165 (1994).

Crimes which require proof of a specific intent include: aiding and abetting, K.S.A. 21-3205 (intent to promote or assist in commission of the crime), State v. Hunter, 241 Kan. 629, 639, 740 P.2d 559 (1987); attempt, K.S.A. 21-3301 (intent to commit the underlying crime), State v. Shannon, 258 Kan. 425, 428, 905 P.2d 649 (1995); conspiracy, K.S.A. 21-3302 (intent to agree and intent to commit the underlying crime), State v. Campbell, 217 Kan. 756, 770, 539 P.2d 329, cert. denied 423 U.S. 1017, 96 S.Ct. 453, 46 L.Ed.2d 389 (1975); solicitation, K.S.A. 21-3303(a) (intent that other person commit the crime solicited), State v. DePriest, 258 Kan. 596, 604, 907 P.2d 868 (1995); first-degree murder, K.S.A. 21-3401 (intent to kill), State v. Young, 253 Kan. 28, 33, 852 P.2d 510 (1993); second-degree murder, K.S.A. 21-3402 ("malice" includes specific intent to kill), State v. Hill, 242 Kan. 68, 82-83, 744 P.2d 1228 (1987); criminal threat, K.S.A. 21-3419 (intent to terrorize), State v. Knight, 219 Kan. 863, 866, 549 P.2d 1397 (1976); kidnapping, K.S.A. 21-3420 (intent to hold person to facilitate commission of a crime, for example), State v. Calderon, 233 Kan. 87, 93, 661 P.2d 781 (1983); aggravated incest, K.S.A. 21-3603 (intent to arouse or satisfy the sexual desires of the child or the defendant or both), see State v. Albert, 13 Kan.App.2d 671, 676, 778 P.2d 386 (1989); contributing to a child's misconduct, K.S.A. 21-3612 (intent to aid the child in avoiding detection or apprehension by law enforcement officers), State v. Ferris, 19 Kan.App.2d 180, 183, 865 P.2d 1058 (1993); theft, K.S.A. 21-3701 (intent to deprive owner permanently of property), State v. Wickliffe, 16 Kan.App.2d 424, 426, 826...