State v. Mahlandt, 53805

• Decision Date: 16 July 1982
• Docket Number: No. 53805,53805
• Citation: 231 Kan. 665,647 P.2d 1307
• Parties: STATE of Kansas, Appellee, v. Randy Lynn MAHLANDT, Appellant.
• Court: Kansas Supreme Court

Page 1307

647 P.2d 1307

231 Kan. 665

STATE of Kansas, Appellee, v. Randy Lynn MAHLANDT, Appellant.

No. 53805.

Supreme Court of Kansas.

July 16, 1982.

Syllabus by the Court

1. The compulsory joinder statute, K.S.A. 21-3108(2)(a), prevents the prosecution from substantially proving a crime in a trial in which the crime is not charged, and then in effect retrying the defendant for the same offense in a trial where it is charged.

2. Three elements must be present under K.S.A. 21-3108(2)(a) to bar a subsequent prosecution. First, the prior prosecution must have resulted in a conviction or acquittal, second, evidence of the present crime must have been introduced in the prior prosecution, and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case.

3. When all of the offenses are of the same general character, require the same mode of trial, the same kind of evidence and occur in the same jurisdiction the defendant may be tried upon several counts of one information, or if separate informations have been filed they may be consolidated for trial at one and the same trial. Following State v. Ralls, 213 Kan. 249, 256-57, 515 P.2d 1205 (1973).

4. The duty to instruct on lesser included offenses arises only when there is evidence under which the defendant might reasonably have been convicted of the lesser crime.

Charles A. O'Hara, of O'Hara, Busch, Johnson & Falk, Wichita, argued the cause and was on the brief for appellant.

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

SCHROEDER, Chief Justice:

This is a criminal action in which Randy Lynn Mahlandt (defendant-appellant) appeals convictions by a Sedgwick County jury of robbery (K.S.A. 21-3426) and aggravated kidnapping (K.S.A. 21-3421).

The facts are not in dispute. On October 5, 1980, Ms. S. was working as a night clerk at the Save-A-Trip store in Mulvane, Sedgwick County, Kansas. At approximately 5:15 a. m. a man identified as the defendant, who had been in the store off and on during the night "killing time", asked for a package of Kool cigarettes. After Ms. S. handed them to him, he demanded that she open up the cash register. She complied and he removed the money from the register. The defendant then forced Ms. S. to go with him to his car, hitting her in the face and head several times when she put up a struggle. The victim jumped out of the defendant's car as he began backing up, and, upon the arrival of other people in the parking lot, the defendant drove off.

Later that same morning, at approximately 5:45 a. m., a man identified as the defendant entered the Seven-Eleven store in Rose Hill, Butler County, Kansas, where Ms. W. was employed as the night clerk. When Ms. W. opened up the cash register to ring up his gasoline purchase, the defendant leaped over the counter and removed the money from the register. The defendant told Ms. W. he was taking her with him and he pulled her out of the store and pushed her into his car.

The defendant drove Ms. W. to a dirt road in Sedgwick County, then stopped and raped and sodomized her. After the rape the victim saw a large amount of money under one of the front seats, which was later identified as the money stolen from the Save-A-Trip store in Mulvane. The victim had also seen the defendant smoking a Kool cigarette while they were in the car. Ms. W. was abandoned out in the country and made her way to a house for help.

The defendant was apprehended later that day by John Dailey, an officer with the Sedgwick County Sheriff's Department, who investigated both the Sedgwick and Butler County incidents. A search of the defendant's car produced the money identified as that stolen from the store in Mulvane and a package of Kool cigarettes.

The defendant was charged with robbery, aggravated kidnapping, rape and aggravated sodomy in Butler County in two separate criminal actions in connection with the Rose Hill incident. These cases were consolidated for trial. Prior to trial the State moved for permission to introduce evidence of the Mulvane incident under K.S.A. 60-455 to prove motive, opportunity, intent, preparation, plan and identity. Finding that identification of the defendant was in controversy, the trial court granted the motion over the defendant's protests that doing so could possibly result in double jeopardy.

At trial in Butler County on April 20, 1981, Ms. S. testified concerning the robbery of the Save-A-Trip store in Mulvane. She identified the defendant, and described how he asked for the Kool cigarettes and then robbed her by taking money from the cash register, forced her to go to his car, and beat her when she tried to fight him. A picture of Ms. S. taken a few days after the beating was admitted and shown to the jury. Ms. S. described how she jumped out of the car when the defendant was backing up, and also identified a check found in the defendant's car as one taken from the Mulvane store.

Another witness, Bob Hause, identified the defendant as having been in the Mulvane store the night of the robbery. He further testified that he saw the defendant physically put Ms. S. in his car and he identified the defendant's car as the one involved in the Mulvane incident. Officer John Dailey testified concerning the cigarettes and money found in the defendant's car, the money later identified by Ms. S. as that stolen from the Mulvane store.

In Butler County the defendant was found guilty of robbery of the Rose Hill store and of the aggravated kidnapping, rape and attempted aggravated sodomy of Ms. W.

Concurrently with the Butler County action the defendant was charged in Sedgwick County with robbery and aggravated kidnapping in connection with the incident at the Save-A-Trip store in Mulvane. After the Butler County trial concluded, the defendant moved to have the Sedgwick County action dismissed, claiming that it amounted to double jeopardy under K.S.A. 21-3108(2)(a), because facts concerning the Mulvane matter testified to in the Butler County prosecution could have been, but were not, charged in that action as required by the statute. The trial court denied the motion.

During trial Ms. S., Bob Hause and Officer Dailey testified to essentially the same evidence as was presented by them in the Butler County case. The defendant again raised his double jeopardy objection prior to the close of the trial, which was overruled. The defendant was convicted of robbery and aggravated kidnapping. Appeal has been duly perfected, raising two issues on appeal.

The defendant first contends the Sedgwick County prosecution was barred because of the evidence admitted in the prior Butler County prosecution. This claim of double jeopardy is based on K.S.A. 21-3108(2)(a), the compulsory joinder statute, which states in pertinent part:

"(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:

"(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely...."

As was stated by the Court of Appeals in the case of In re Berkowitz, 3 Kan.App.2d 726, 602 P.2d 99 (1979), the object of 21-3108(2)(a) is to prevent the prosecution from substantially proving a crime in a trial in which the crime is not charged, and then in effect retrying the defendant for the same offense in a trial where it is charged. 3 Kan.App.2d at 743, 602 P.2d 99. The opinion in that case discussed in great length the law of double jeopardy under the Fifth and Fourteenth amendments and the historical background of the compulsory joinder rule now embodied in 21-3108(2)(a), which is unnecessary to repeat here. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

As the court pointed out in Berkowitz, three elements must be present under 21-3108(2)(a) to bar a subsequent prosecution. First, the prior prosecution must have resulted in a conviction or acquittal, second, evidence of the present crime must have been introduced in the prior prosecution, and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case. 3 Kan.App.2d at 743, 602 P.2d 99.

The first two elements are clearly present in this case. The defendant was convicted of the crimes charged and there is no dispute that the evidence of the crimes charged in Sedgwick County was admitted in the Butler County trial. However, the statute does not apply unless the last element is present-that crimes charged in the Sedgwick County prosecution could have been included as additional counts in the Butler County prosecution. We must necessarily determine whether the robbery and kidnapping charges appealed here from Sedgwick County could have been brought in Butler County.

The defendant argues that under the venue statutes, specifically K.S.A. 22-2603 and 22-2609, both the robbery and the kidnapping charges could have been brought in Butler County. K.S.A. 22-2603 states:

"Where two or more acts are requisite to the commission of any...