State v. Moore, 50713
| Citation | 602 P.2d 1359,226 Kan. 747 |
| Decision Date | 01 December 1979 |
| Docket Number | No. 50713,50713 |
| Parties | STATE of Kansas, Appellee, v. Moses MOORE, Appellant. |
Syllabus by the Court
1. Under K.S.A. 22-3202 and 22-3203, when criminal conduct resulting in a second charge is precipitated by a previous charge, the two are sufficiently "connected together" to allow consolidation for trial.
2. The record on appeal is examined in a criminal action and it is Held that the trial court did not commit reversible error (1) in consolidating two cases for trial; (2) in denying defendant's motion for judgment of acquittal because of the failure of the state's evidence to prove venue; or (3) in limiting defense counsel's cross-examination of a prosecution witness.
David Michael Rapp of Moore & Rapp, Wichita, argued the cause and was on the brief for appellant.
Roger C. Skinner, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Vern Miller, Dist. Atty., and Alan G. Metzger, Asst. Dist. Atty., were on the brief for appellee.
This is a direct appeal from convictions in two criminal cases which were consolidated and tried together. In case No. 78 CR 629, the defendant, Moses Moore, was charged with aggravated robbery (K.S.A. 21-3427), and kidnapping (K.S.A. 21-3420). The case went to trial on September 18, 1978, but ended in mistrial when the jury was unable to reach a verdict. On September 22, 1978, case No. 78 CR 1659 was filed, charging defendant with corruptly influencing a witness (K.S.A. 21-3806), and the unlawful deprivation of property (K.S.A. 21-3705). Over objection of the defendant, the two cases were consolidated and tried jointly on December 5, 1978. The defendant was convicted on all charges.
The events giving rise to the charges were disputed. The state's evidence showed that on April 1, 1978, the defendant, Moses Moore, knocked on the apartment door of Mark Marion, and asked if Bill McCoy still lived there. When told by Marion that Bill McCoy no longer lived there, Moore asked if he could come in and see a mural which had been painted on one of the apartment walls. Marion admitted Moore into the apartment and they began discussing a variety of subjects. Marion testified at the trial that Moore began making sexual innuendos, and when asked to leave, pulled a gun on Marion. Marion further testified that Moore removed $60 from his billfold which was lying on the dresser, escorted Marion to a restroom down the hall, and left.
Defendant Moore's version of the event differed greatly. Moore testified that, upon entering the apartment, Marion requested him to perform a homosexual act with him in consideration of payment of $30. Moore testified the act was attempted but never completed. Marion then went down the hall to the restroom. Moore dressed, took his $30, and left. A determination of the charges in this case depended upon whether the jury believed the testimony of Mark Marion or that of the defendant, Moses Moore.
The facts surrounding case No. 78 CR 1659 are also disputed. It appears that one Bruce Foggs met the defendant Moore in May, 1978, and moved in with him at the latter's apartment a few weeks later. Apparently Foggs and Moore had some discussion about this case and the need for a witness who would testify that Marion was a homosexual. Such a witness would strengthen the defendant's position in the trial of case No. 78 CR 629. At the second trial, in proof of the charges in case No. 78 CR 1659, Foggs testified that Moore signed a jail bond for Foggs in exchange for Foggs' agreement to testify as to Marion's homosexuality at Moore's trial. The night before the trial, Foggs had agreed to so testify. Foggs apparently had second thoughts in the matter after discussing the matter with his lawyer and decided that he would not testify on Moore's behalf. At the second trial, Foggs testified that Moore became angry with him and that Moore refused to return certain clothes that Foggs had left in Moore's apartment. Foggs also testified that a diamond ring and a G. I. loan check had not been returned by Moore. The retention of this property was the basis for the charge of unlawful deprivation of property.
Moore testified that it was Foggs who volunteered to testify on Moore's behalf and that Moore at all times told Foggs to either testify truthfully or not to testify at all. Moore further testified that Foggs had requested him to clean the clothing left in Moore's apartment, and Moore was withholding the clothing only until Foggs paid for the cleaning. As noted above, the jury at the second trial found the defendant Moore guilty on all counts.
Moore's first point is that the trial court erred in consolidating cases No. 78 CR 629 with 78 CR 1659 for trial. He also claims that the consolidation unduly prejudiced his defense. The joinder for trial of two or more informations against a single defendant is governed by K.S.A. 22-3203. That statute declares in substance that the court may order two informations against a single defendant to be tried together, if the crimes could have been joined in a single information. K.S.A. 22-3202 governs the charging of two or more crimes in the same information and states in part as follows:
The defendant contends that the criminal charges contained in the two cases which were consolidated for trial here, are not of the same or similar character nor based on the same act or transaction or connected as part of a common scheme or plan. The State argues that, because the defendant would not have committed the acts giving rise to the corruptly-influencing-a-witness charge but for the aggravated robbery and kidnapping charges, the crimes were necessarily "connected" and properly joined for trial. We have found no Kansas cases exactly in point. However, it should be noted that K.S.A. 22-3202 and K.S.A. 22-3203 correspond to Rules 8(a) and 13 of the Federal Rules of Criminal Procedure. The federal cases consistently hold that when criminal conduct resulting in a second charge is precipitated by a previous charge, the two are considered sufficiently "connected together" to allow consolidation for trial. For example, "a charge of bail jumping or escape may be deemed sufficiently 'connected' with a substantive...
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...an offense is jurisdictional. The State must prove that the offense occurred in the county where it is prosecuted. State v. Moore, 226 Kan. 747, 750, 602 P.2d 1359 (1979); State v. Griffin, 210 Kan. 729, 731, 504 P.2d 150 Here there was evidence the child and her mother lived in Geary Count......
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State v. Flynn, 82,983.
..."minimal" requirements for meeting the connection element of K.S.A. 22-3202[1]). Connection between separate charges In State v. Moore, 226 Kan. 747, 602 P.2d 1359 (1979), this court considered the appeal of the defendant who had been tried jointly on two separate district court cases—one c......
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State v. Donaldson, 91,163.
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