State v. Sprung, 99,704.

• Decision Date: 04 May 2012
• Docket Number: No. 99,704.,99,704.
• Citation: 277 P.3d 1100,294 Kan. 300
• Parties: STATE of Kansas, Appellee, v. Bryan Douglas SPRUNG, Appellant.
• Court: Kansas Supreme Court

294 Kan. 300
277 P.3d 1100

STATE of Kansas, Appellee,
v.
Bryan Douglas SPRUNG, Appellant.

No. 99,704.

Supreme Court of Kansas.

May 4, 2012.

[277 P.3d 1102]

[294 Kan. 300]Syllabus by the Court

1. Multiplicity is the charging of a single offense in several counts of a complaint or information. Multiplicity creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights.

2. Whether convictions are multiplicitous is a question of law subject to de novo review.

3. In resolving a multiplicity claim, the appellate court first determines whether the convictions arose from the same conduct. If so, the court next considers whether, by statutory definition, that conduct constitutes one offense or two. If the conduct constitutes only one offense, then both components are met and there is a double jeopardy violation.

4. The first component of the multiplicity inquiry requires the court to consider whether the conduct is discrete or unitary. If the conduct is discrete, the convictions do not arise from the same offense and there is no double jeopardy violation. But if the charges arose from the same act or transaction, then the conduct is considered unitary and the court moves to the second component of the inquiry.

5. In determining whether a defendant's convictions arose from the same conduct, an appellate court considers several factors, including whether: (1) the acts occurred at or near the same time, (2) the acts occurred at the same location, (3) a causal relationship existed between the acts, in particular whether an intervening event separated the acts, and (4) a fresh impulse motivated some of the conduct.

6. In analyzing the second multiplicity component, the appellate court must determine whether, by statutory definition, the defendant's conduct constitutes one offense or two.

[294 Kan. 301]7. When a defendant's convictions are based on multiple violations of the same statute, the unit-of-prosecution test applies. That test requires the court to interpret the statutory definition of the crime to determine the allowable unit of prosecution intended by the legislature. Only one conviction can result from each allowable unit of prosecution.

8. The determination of the allowable unit of prosecution is not necessarily dependent upon whether there is a single physical action or a single victim. Instead, the key is the scope of the course of conduct proscribed by the statute.

[277 P.3d 1103]

9. If the legislature's intent is unclear as to the unit of prosecution defined by a statute, the rule of lenity applies. Under that rule, statutory silence and ambiguity regarding the unit of prosecution is construed in favor of the defendant.

10. Courts apply a two-step analysis to allegations of prosecutorial misconduct involving improper comments to the jury. First, the court considers whether the comments were outside the wide latitude allowed the prosecutor in discussing the evidence. If so, the court next determines whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial.

11. The second step of the prosecutorial misconduct analysis requires consideration of three factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors.

12. The third factor of the second step of the prosecutorial misconduct test may not override the first two factors unless the State proves beyond a reasonable doubt that the error complained of did not affect the outcome of the trial in light of the entire record.

13. Because a district court judge has discretion to order a psychological[294 Kan. 302]examination of the complaining witness in a sex crime case, an appellate court reviews the district court's denial of such a motion for an abuse of discretion.

14. A defendant is entitled to a psychological examination of a complaining witness if the defendant can demonstrate compelling circumstances that would justify such an examination.

Lydia Krebs, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Robert A. Walsh, county attorney, argued the cause, and Steve Six, attorney general, was with him on the brief for appellee.

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

We granted Bryan Sprung's petition for review of the Court of Appeals' decision affirming his jury convictions of one count of aggravated criminal sodomy, two counts of aggravated indecent liberties with a child, and one count of criminal threat. Sprung seeks reversal of one of his aggravated indecent liberties convictions, arguing the convictions are multiplicitous. Further, Sprung claims the prosecutor committed misconduct during closing argument by commenting on the credibility of the victim as well as an expert witness and investigator hired by Sprung. Sprung also contends the district court abused its discretion in denying his motion to compel a psychological examination of the victim. Finally, Sprung argues the district court violated his constitutional rights by imposing an aggravated presumptive sentence for his conviction of aggravated criminal sodomy without a jury determination of the aggravating factors.

We affirm the Court of Appeals' decision in part, and we reverse in part. We conclude Sprung's aggravated indecent liberties convictions are multiplicitous because (1) the charges arose from the [294 Kan. 303]same act or transaction; and (2) the plain language of the charging statute, K.S.A. 21–3504(a)(3)(A), provides only one unit of prosecution rather than two. Accordingly, we reverse the Court of Appeals' decision affirming both convictions, we reverse one conviction, and we vacate Sprung's sentence, in part. Regarding Sprung's claim of prosecutorial misconduct, we agree with the Court of Appeals' conclusion that the State has demonstrated beyond a reasonable doubt that the prosecutor's statements regarding the credibility of the victim, Sprung's expert witness, and Sprung's investigator—even if improper—did not affect the outcome of the trial in light of the entire record. We also find that the district court did not abuse its discretion in denying Sprung's motion to compel a psychological examination of the victim. Finally, we affirm the Court of Appeals' dismissal of Sprung's sentencing claim for lack of jurisdiction.

[277 P.3d 1104]

Factual and Procedural Background

Sprung's convictions arose from offenses he committed against K.M., a 10–year–old girl. In early 2006, K.M. attended a weekly youth group, “Friends Club,” at the church where Sprung was pastor, and she occasionally attended Sunday services at the church. Sprung sometimes gave K.M. rides to and from church. If no one answered the front door at K.M.'s home on Sunday mornings when he came to pick her up, Sprung sometimes knocked on K.M.'s bedroom window. Once or twice, Sprung asked for a key to the house so he would not wake the rest of the family on Sunday mornings.

In April 2006, K.M. disclosed to her mother several incidents of abuse that she said had occurred in the previous several weeks in Sprung's office after Friends Club. During the first incident, Sprung motioned for K.M. to sit on his lap and rubbed K.M.'s crotch area on the outside of her clothing. A few weeks later, while K.M. was waiting for a ride home, Sprung told K.M. to sit on his lap. Sprung pulled down K.M.'s pants and his own pants and he digitally penetrated K.M.'s vagina, causing pain to K.M. Several weeks later as K.M. waited for a ride home from Friends Club, Sprung called her into his office. Sprung shut the door, sat down, [294 Kan. 304]and motioned for K.M. to sit on his lap. After K.M. did so, Sprung pulled down her pants, then pulled down his own pants, and digitally penetrated K.M.'s vagina and anus.

Several weeks later, as K.M. waited for a ride home, Sprung again called her into his office and shut the door. Sprung motioned for K.M. to sit on his lap and after she did so, he pulled down K.M.'s pants and then pulled down his own pants. Sprung digitally penetrated K.M.'s vagina and anus. He then pushed K.M. off his lap, placed her hand on his erect penis, and moved her hand up and down. Sprung also asked K.M. to put his penis in her mouth but K.M. refused.

After this last incident, K.M. reported the abuse to her mother. K.M. decided to report the abuse because she was afraid that Sprung would “go all the way,” which K.M. explained meant Sprung would “[p]ut his body part inside of [hers].”

Fran Garrison, the former director of Friends Club, offered testimony corroborating K.M.'s testimony. Garrison testified that one evening after Friends Club in January 2006, she found the door to Sprung's office closed. Garrison knocked on the door but did not wait for an answer before walking into Sprung's office. There, she observed Sprung sitting at a chair at his desk with K.M. on his lap. According to Garrison, Sprung sat “straight as a board, leaning back with his head back and legs straight out forward,” while K.M. sat on Sprung's lap facing away from Sprung. Garrison told K.M. to get off Sprung's lap and asked Sprung what he was doing, to which he responded, “ ‘Giving hugs.’ ” Garrison noticed Sprung using his hands to adjust himself in his genital area, where Garrison could see a bulge about the size of her fist.

Garrison further testified that as she locked up the church one evening after Friends Club in February 2006, she again found K.M. and Sprung alone in Sprung's office. Just before she entered Sprung's office, Garrison heard the door being unlocked. K.M. was playing a game on Sprung's computer but...