State v. Mourning

• Decision Date: 10 June 1983
• Docket Number: No. 55141,55141
• Citation: 664 P.2d 857,233 Kan. 678
• Parties: STATE of Kansas, Appellant, v. Ronald E. MOURNING, Appellee.
• Court: Kansas Supreme Court

Page 857

664 P.2d 857

233 Kan. 678

STATE of Kansas, Appellant, v. Ronald E. MOURNING, Appellee.

No. 55141.

Supreme Court of Kansas.

June 10, 1983.

Syllabus by the Court

1. The test to be used in determining whether offenses charged in a complaint or information constitute lesser included offenses and are multiplicious under K.S.A. 21-3107, or in determining whether a prosecution is barred by a former prosecution for a crime arising out of the same conduct under K.S.A. 21-3108, is substantially the same. Stated simply, this test is whether each of the offenses charged requires proof of an additional element which the other does not, and if so, the offenses are not multiplicious and the prosecution of one is not barred by a former prosecution of the other.

2. The offense of reckless driving is not a lesser included offense of driving under the influence of alcohol or drugs, and conviction of one will not bar a subsequent prosecution for the other arising out of the same transaction.

3. To bar a subsequent prosecution under K.S.A. 21-3108(2)(a ) three elements must be present: (1) the prior prosecution must have resulted in a conviction or an acquittal, (2) evidence of the present crime must have been introduced in the prior prosecution, and (3) the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case.

Robert T. Stephan, Atty. Gen., Clark V. Owens, Dist. Atty. and James D. Hall, Asst. Dist. Atty., were on brief for appellant.

Randall Kiehl Rathbun and N. Trip Shawver, of Shawver, Rathbun & Singleton, Wichita, were on brief for appellee.

SCHROEDER, Chief Justice:

This is an appeal by the State from an order of the Sedgwick County District Court dismissing a complaint charging Ronald E. Mourning (defendant-appellee) with driving under the influence of alcohol or drugs (K.S.A. 8-1567).

On August 6, 1982, the defendant was issued a Uniform Notice to Appear and Complaint by the Sedgwick County Sheriff's Office, charging four traffic offenses: speeding (K.S.A. 8-1338), failure to drive completely within marked lanes (K.S.A. 8-1522[a ], reckless driving (K.S.A. 8-1566) and driving under the influence of alcohol or drugs. The defendant pled guilty to all charges except driving under the influence of alcohol or drugs. A trial date was then set. At trial the defendant moved to dismiss on the ground he had been convicted of the lesser included offense of reckless driving charged in the same complaint. The trial court sustained the motion ruling the prosecution for driving under the influence of alcohol or drugs was barred under K.S.A. 21-3108 by the prior conviction for the included offense of reckless driving arising out of the same conduct. The State duly perfected this appeal.

Under the doctrine of double jeopardy a person cannot be put twice in jeopardy for different degrees of the same offense arising out of a single act. Stated another way, the State may not split a single offense into separate parts, and where there is a single wrongful act, such act will not furnish the basis for more than one criminal prosecution. State v. Hutchison, 228 Kan. 279, 284, 615 P.2d 138 (1980); Jarrell v. State, 212 Kan. 171, 173, 510 P.2d 127 (1973). This principle has been codified in K.S.A. 21-3108(2)(a ), as follows:

"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 ... was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution ...."

Kansas decisions construing this portion of 21-3108 and its predecessor, K.S.A. 62-1449 (Corrick), have held identity of offenses to be an indispensable ingredient of jeopardy. Where one statute describing an offense requires proof of a fact which another statute does not, then one offense is not a bar to the prosecution of the other on the ground of double jeopardy. State v. Edgington, 223 Kan. 413, 416, 573 P.2d 1059 (1978); State v. Pruitt, 216 Kan. 103, 105, 531 P.2d 860 (1975); State v. Pierce, et al., 205 Kan. 433, Syl. p 3, 469 P.2d 308 (1970); State v. Anderson, 172 Kan. 402, Syl. p 4, 241 P.2d 742 (1952). Regarding this provision one commentator wrote:

"A common test of the application of double jeopardy is the substantial identity of the former and subsequent offenses, and this is ordinarily measured by the character and effect of the evidence in each case. If the evidence which will support a conviction in the subsequent prosecution would have supported a conviction of the crime charged or an included offense in the former prosecution, then the second prosecution is substantially identical to the former and a conviction or acquittal in the former is a bar. Thus, one cannot be twice prosecuted for crimes involving the same conduct, unless in each prosecution facts must be proven which are not necessary to the other prosecution."

Spring, The Effect of Former Prosecutions: Something Old and Something New Under Kan.Stat.Ann. Sec. 21-3108, 9 Washburn L.J. 179, 185 (1970). See also 21 Am.Jur.2d, Criminal Law §§ 266, 279.

It has also been generally recognized that culpable conduct of a defendant, although constituting a single transaction, may result in multiple violations of the criminal code for which the defendant may be severally prosecuted. The prohibition against double jeopardy does not bar prosecutions of multiple violations which arise from one criminal transaction. The prohibition is against multiple prosecutions of the same criminal delinquency. See State v. Pencek, 224 Kan. 725, 728, 585 P.2d 1052 (1978), and cases cited therein. As stated in 21 Am.Jur.2d, Criminal Law § 266:

"It is not a second jeopardy for the same act, but a second jeopardy for the same offense that is prohibited. The question is whether the two offenses are essentially independent and distinct--or whether one offense can be committed without necessarily committing the other."

See also 21 Am.Jur.2d, Criminal Law § 277.

Another statute for consideration here is K.S.A. 21-3107, outlining the doctrine of lesser included offenses in this state. It provides in part:

"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."

This statute was construed in State v. Arnold, 223 Kan. 715, 716, 576 P.2d 651 (1978), where it was stated:

"Lesser included offenses fall into three categories under our statute. The first is the offense which is merely a lower degree of the offense charged or subparagraph (a ) under the statute. The second category is the attempt as a lesser included offense or subparagraphs (b ) and (c ) under the statute. 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.' (See Note, 'The Doctrine of Lesser Included Offenses in Kansas,' 15 Washburn L.J. 40, 41-45 [1976].)

"Our court has consistently construed subparagraph (d ) to mean a lesser included offense must not require proof of any element not necessary in the greater crime charged."

Other cases have also used the test set forth above in Arnold in determining whether a lesser offense is a lesser included offense under 21-3107(2)(d ). See State v. Russell, 229 Kan. 124, 125-26, 622 P.2d 658 (1981); State v. Daniels, 223 Kan. 266, 270, 573 P.2d 607 (1977); Wisner v. State, 216 Kan. 523, Syl. p 2, 532 P.2d 1051 (1975); Jarrell v. State, 212 Kan. at 175, 510 P.2d 127; State v. Coberly, 233 Kan. 100, 661 P.2d 383 (1983).

Therefore, it can be said the test is substantially the same to be used in determining whether offenses charged in a complaint or information constitute lesser included offenses and are multiplicious and the prosecution of one is not barred by a former prosecution of the other.

Does the offense of driving under the influence of alcohol or drugs require proof of an additional element which is not necessary to prove reckless driving, and vice-versa? Under K.S.A. 8-1567(a ) three things must be established to support a conviction for driving under the influence of alcohol or drugs: (1) that the defendant operated the vehicle; (2) that the defendant was under the influence of alcohol or drugs while operating the vehicle, and (3) that the operation took place within the jurisdiction of the court. See State v. Reeves, 233 Kan. 702, 664 P.2d 862 (this day decided); State v. Hall, 1 Kan.App.2d 730, 731, 573 P.2d 635 (1977). In Reeves "under the influence of alcohol" was defined to mean that the defendant's mental or physical function was impaired by the consumption of alcohol to the extent that he was incapable of safely driving a vehicle. 233 Kan. at 703-704, 664 P.2d 862.

K.S.A. 8-1566(a ) provides:

"Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving."

The gist of the proscribed conduct is driving a vehicle in reckless disregard for the safety of others. PIK Crim.2d § 70.04 defines "reckless" under K.S.A. 8-1566 to mean "driving a vehicle under circumstances that show a realization of the imminence of danger to another person or the property of another where there is reckless disregard or complete indifference and unconcern for the probable consequences of such...