State v. Taylor

• Decision Date: 21 August 1998
• Docket Number: No. 77159,77159
• Citation: 965 P.2d 834,25 Kan.App.2d 407
• Parties: STATE of Kansas, Appellee, v. Toureno D. TAYLOR, Appellant.
• Court: Kansas Court of Appeals

Page 834

965 P.2d 834

25 Kan.App.2d 407

STATE of Kansas, Appellee, v. Toureno D. TAYLOR, Appellant.

No. 77159.

Court of Appeals of Kansas.

Aug. 21, 1998.

Review Denied Nov. 10, 1998.

Syllabus by the Court

1. If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

2. K.S.A.1993 Supp. 21-4219(b) was designed to ensure that drive-by shootings are always a felony offense. At the same time, the legislature clearly intended such conduct against each victim would result in only a single felony charge against the accused.

3. Where some persons in a building are in immediate apprehension of bodily harm because of shots fired at the building, and other persons in the building are not aware of the danger, a defendant may be convicted of both aggravated assault and criminal discharge of a firearm at an occupied building.

Stephen B. Chapman, Assistant Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for Appellant.

Debra S. Peterson, Assistant District Attorney, Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, for Appellee.

Before PIERRON, P.J., LEWIS, J., and ROBERT J. SCHMISSEUR, District Judge, assigned.

SCHMISSEUR, Judge:

Toureno D. Taylor appeals his jury trial convictions for two counts of aggravated assault and one count of criminal discharge of a firearm at an occupied building. We affirm.

On appeal, Taylor contends the count of criminal discharge of a firearm at an occupied building is multiplicitous with the two counts of aggravated assault or is contrary to the legislative intent behind the drive-by shooting statute. He further contends the State failed to produce evidence sufficient to sustain the convictions.

Given the standard of review when the sufficiency of the evidence is challenged in a criminal case, the facts are summarized in the light most favorable to the prosecution. State v. Abel, 261 Kan. 331, 337, 932 P.2d 952 (1997).

Taylor had gone to Hope Taylor's home and demanded to talk to Hope's sister, Lelee. Taylor had battered Lelee earlier that day, and she refused to talk to him. Hope ordered Taylor to leave her home which he did, but according to Lelee and her friend, Vernon Dupree, Taylor returned a short time later accompanied by another man. Taylor asked Lelee to come out because he had something to show her.

The yard was well lit with a porch light and a spotlight. Lelee looked out the window and warned Dupree to keep the door closed because Taylor and his friend appeared to be carrying ball bats. When she saw Taylor raise what she had assumed to be a ball bat to his shoulder, she told Dupree that Taylor and the other man had guns.

Dupree and Lelee then heard the sound of repeated gunfire. Gunshots were fired through the windows and the walls of the house. Dupree stooped on his knees to avoid injury from the gunfire. Lelee ran into her infant nephew's bedroom and fell on top of the child to protect him. Debris fell on Lelee as the bullets tore into the walls surrounding the child's bed.

Someone in the neighborhood called the police. The police dispatcher recorded the call to the police at 1:09 a.m. The police found evidence of shotgun blasts on the side of the house and bullet holes in the house. There were shotgun shell casings and wadding in the front yard and bullet holes in the bedroom walls and ceiling.

At approximately 1:10 a.m, 2 miles away from the shooting, Taylor was stopped for a traffic infraction. The officer arrested Taylor and his passenger. No weapons were found in the search of Taylor and his passenger, or in the inventory search of the car.

Taylor's testimony differed regarding the events that occurred after Hope ordered him from her house. Taylor testified he left and went to his own apartment for a short time. He said he did not return to Hope's house. Taylor was upset and decided to go to a friend's house. There was snow on the streets, and he lost control of the car. He was stopped by a police officer and subsequently arrested.

Taylor contends his conviction for criminal discharge of a firearm at an occupied building is multiplicitous with the aggravated assault convictions. In support, he argues that criminal discharge of a firearm at an occupied building is an included crime of aggravated assault under the facts of this case or, in the alternative, aggravated assault is a lesser included crime of criminal discharge of a firearm at an occupied building.

Taylor did not argue to the trial court that the convictions were multiplicitous. "When constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review. [Citation omitted.]" State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993), see State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 (1984). There are, however, three exceptions to the general rule:

" '(1) Cases where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case;

" '(2) Questions raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and

" '(3) That a judgment of a trial court may be upheld on appeal even though that court may have relied on the wrong ground or assigned a wrong reason for its decision.' [Citation omitted.]" State v. Bell, 258 Kan. 123, 126, 899 P.2d 1000 (1995) (quoting Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. p 3, 434 P.2d 858 [1967] ).

The first two exceptions arguably apply in this case. In Dubish, the Kansas Supreme Court faced an issue of multiplicity raised for the first time on appeal. The court noted the second exception listed above and addressed the issue on the merits, reasoning:

"The issue of multiplicity was considered in State v. Dorsey, 224 Kan. 152, 578 P.2d 261 (1978). The court stated the principal danger raised by a multiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense. 224 Kan. at 154-55, 578 P.2d 261. The fundamental right of a defendant to a fair trial under the 5th and 14th Amendments to the Constitution of the United States would be violated by a multiplicitous conviction." 234 Kan. at 718, 675 P.2d 877.

Therefore, we will consider the merits of Taylor's multiplicity argument.

Taylor relies on State v. Warren, 252 Kan. 169, 843 P.2d 224 (1992), to support his argument that where the same wrongful act supports more than one conviction, the convictions are multiplicitous.

Convicting a defendant of multiplicitous crimes is prohibited by K.S.A. 21-3107:

"(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.

"(2) 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."

Case law analysis of multiplicity claims reveals several distinct approaches. "A single offense may not be divided into separate parts; generally, a single wrongful act may not furnish the basis for more than one criminal prosecution." State v. Garnes, 229 Kan. 368, 373, 624 P.2d 448 (1981). " 'Charges are not multiplicitous if each charge requires proof of a fact not required in proving the other.' " State v. Baker, 255 Kan. 680, 683 877 P.2d 946 (1994) (quoting State v. Grissom, 251 Kan. 851, Syl. p 12, 840 P.2d 1142 [1992] ). Offenses are not multiplicitous if they occur at different times and/or in different places. State v. Howard, 243 Kan. 699, 703, 763 P.2d 607 (1988).

A number of multiplicity cases have turned to State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988), which sets out a two-pronged test for determining if there is an included crime under K.S.A. 21-3107(2)(d). Under the first prong, one determines if all of the statutory elements of one crime are included in the other. Even if there is no included crime proven under the first prong, there may still be an included crime under the second prong. Under the second prong, the court reviews the allegations of the complaint and the evidence adduced at trial, and if the evidence which must be adduced at trial for the purpose of proving the crime charged would also necessarily prove another crime, then the latter is an included crime. The Supreme Court has given the second prong of Fike a narrow interpretation by emphasizing the distinction between what the State proves at trial and what the State is required to prove.

In State v. Gibson, 246 Kan. 298, 787 P.2d 1176 (1990), the defendant contended that aggravated sexual battery was a lesser included offense of rape under the facts of the case. The Gibson court stated:

"Defendant recognizes that the statutory elements are different in that aggravated sexual battery requires proof of a nonspousal relationship and proof of an intentional application of force with the intent to arouse or satisfy the sexual desires of the offender or another, neither of which are required to prove rape. However, defendant contends that under [the second prong of Fike ], the instruction was required because the State did prove an intentional application of force with the intent to arouse upon proving the act of sexual intercourse and also proved a nonspousal...