State v. Woods

• Decision Date: 17 January 1992
• Docket Number: No. 66005,66005
• Citation: 825 P.2d 514,250 Kan. 109
• Parties: STATE of Kansas, Appellee, v. Lamacey WOODS, Appellant.
• Court: Kansas Supreme Court

Page 514

825 P.2d 514

250 Kan. 109

STATE of Kansas, Appellee, v. Lamacey WOODS, Appellant.

No. 66005.

Supreme Court of Kansas.

Jan. 17, 1992.

Syllabus by the Court

1. Prior to trial, the trial court has discretion to allow an amendment to a complaint, including the charging of a different crime, provided the substantial rights of the defendant are not prejudiced.

2. K.S.A. 22-3201(4) does not forbid a court from differentiating between allowing the State to amend complaints before trial and during trial.

3. Two or more crimes may be charged against a defendant in the same complaint, information, or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

4. Whether a defendant may be tried on two or more complaints, informations, or indictments in a single trial rests within the sound discretion of the trial court. The trial court's decision to permit a single trial on multiple charges will not be disturbed on appeal absent a clear showing of abuse of discretion. If the trial court's consolidation order is determined to be an abuse of discretion, the defendant has the burden of showing prejudice requiring reversal.

5. Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying discretion is abused only if no reasonable person would take the view adopted by the trial court. If reasonable persons could differ concerning the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

6. Multiplicity exists when the State uses a single wrongful act as the basis for multiple charges. Charges are not multiplicitous if each charge requires proof of a fact not required in proving the other. Charges are also not multiplicitous when the offenses occur at different times and in different places.

7. A test for determining whether a continuous transaction results in the commission of but a single offense is whether separate and distinct prohibited acts, made punishable by law, have been committed. A single motive for a series of acts does not necessarily result in a single crime.

8. Multiplicity does not exist if an act of violence is intermittent or separate and wholly unrelated to the other acts of violence.

Geary N. Gorup of Law Office of Geary N. Gorup, Wichita, argued the cause and was on the brief for appellant.

Debra Byrd Wagner, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief for appellee.

ABBOTT, Justice:

This is a direct appeal by Lamacey Woods from his convictions of one count of sale of cocaine, one count of aggravated assault, two counts of aggravated battery, and two counts of aggravated kidnapping.

Woods' appeal centers on the trial court allowing the State to amend the complaint and on the contention his convictions for aggravated assault and aggravated battery are multiplicitous with his two convictions for aggravated kidnapping.

Woods originally was charged with six counts. Counts one and two (aggravated kidnapping and aggravated battery) occurred on September 7, 1989. The remaining four counts (aggravated kidnapping, aggravated battery, and two counts of aggravated assault) arose on September 11, 1989. Charles Green, who was 14 years of age in September 1989, was the alleged victim in all six counts.

A second complaint was filed alleging Woods sold cocaine on August 16, 1989.

Separate preliminary hearings were held on the two complaints, and Woods was bound over for trial on all counts of both complaints.

The State then filed an amended complaint, consolidating the two complaints containing the seven counts on which Woods had already been bound over for trial. The State added a new count to the amended complaint, charging Woods with a new charge of conspiracy to commit the crimes of sale of cocaine, possession of cocaine with the intent to sell, possession of cocaine, theft, aggravated kidnapping, aggravated battery, aggravated assault, and terroristic threat. The conspiracy count is 6 pages long and has 21 separate "overt acts."

The State then filed a motion to permit the State to proceed on the amended complaint. That motion was granted the same day Woods was given a preliminary hearing on all counts of the amended complaint. Woods was bound over for trial on all eight counts. At trial, Woods was acquitted of conspiracy and one count of aggravated assault on September 11, 1989. This appeal followed.

1. Amended Complaint

Woods argues that allowing the complaint to be amended violated K.S.A. 22-3201(4). The statute provides that "[t]he court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced."

Woods argues that the trial court interpreted the statute to mean that a complaint may be amended, even by adding a new charge, providing the defendant's substantial rights are not prejudiced. Woods contends this is contrary to the plain language of the statute that permits an amendment only "if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced."

Woods acknowledges there is case law supporting the trial court's interpretation of the statute. The defendant argues that to the extent State v. Niblock, 230 Kan. 156, 631 P.2d 661 (1981), and State v. Osburn, 216 Kan. 638, 533 P.2d 1229 (1975), contradict the express language of K.S.A. 22-3201(4), these cases should be overruled.

In Niblock, the defendant originally was charged with aggravated robbery, felony theft, and unlawful possession of a firearm. Without notice to the defendant, the complaint was amended 10 days after its filing to include one count of aggravated assault.

In response to the defendant's contention that the trial court erred in permitting the amendment, this court set forth the following guidelines:

"The inquiry under the statute is whether prejudice has occurred to the appellant. State v. Smith, 225 Kan. 796, 798, 594 P.2d 218 (1979). 'Prior to trial, the prosecution is given wide discretion in amending the information as to form and substance.' State v. Foy, 227 Kan. 405, 408, 607 P.2d 481 (1980). The statute does not explicitly require that a hearing be held prior to the decision to amend a complaint. The absence of such a hearing is not error. It was not error to allow the prosecutor to add a different crime, and appellant fails to show that he was prejudiced, which he must do in order to obtain reversal on those grounds. See State v. Johnson, 223 Kan. 185, 573 P.2d 595 (1977); State v. Gilley, 5 Kan.App.2d 321, 615 P.2d 827, rev. denied 228 Kan. 807 (1980); State v. Wright, 4 Kan.App.2d 196, 603 P.2d 1034 (1979), rev. denied 227 Kan. 928 (1980)." 230 Kan. at 163, 631 P.2d 661.

Woods contends this "holding is contrary to the clear language of the statute and totally unsupported by the case law relied upon by the Supreme Court in Niblock."

In State v. Smith, 225 Kan. 796, 594 P.2d 218 (1979), a case cited in Niblock, the issue was whether the amended complaint prejudiced the defendant. Woods argues that the Smith court did not suggest "the only inquiry under K.S.A. 22-3201(4) is prejudice if an additional or different crime is charged." The court's language does not support Woods' argument.

"The appellant argues he should have been afforded a new preliminary hearing on the amended information. He acknowledges the crime charged remained the same but contends he was confronted with an entirely different set of facts to defend.

"K.S.A. 1978 Supp. 22-3201 provides in pertinent part:

'(4) The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.'

"As a general rule prior to the commencement of the trial the prosecutor should be given wide discretion in amending the original information. A trial court may allow an amendment to an information in its discretion both as to form and substance after arraignment and plea before commencement of the trial. State v. Osburn, 216 Kan. 638, 641, 533 P.2d 1229 (1975). The inquiry under the statute is whether or not the circumstances of each case reflect prejudice to the defendant. Where the record fails to establish prejudice to the defendant's substantial rights, amendment at any time before the verdict is proper. State v. Howard, 224 Kan. 208, 211, 579 P.2d 702 (1978); see also State v. Johnson, 223 Kan. 185, 190, 573 P.2d 595 (1977)." 225 Kan. at 798, 594 P.2d 218.

Woods also claims that the cases cited in Smith do not support the Smith court's interpretation of K.S.A. 22-3201(4). The premise of Woods' argument is that State v. Osburn, 216 Kan. 638, 533 P.2d 1229, State v. Howard, 224 Kan. 208, 579 P.2d 702 (1978), and State v. Johnson, 223 Kan. 185, 573 P.2d 595 (1977), did not involve a situation in which the amendment to the complaint was a new or different charge.

In Osburn, the defendant appealed his conviction for possession of heroin, alleging that the trial court erred in refusing "to instruct on the procuring agent defense." 216 Kan. at 638, 533 P.2d 1229. This court remanded the case for a new trial. The State then filed an amended complaint. The State deleted the words "and sell" from the original complaint charging that the defendant did "possess, have under his control and sell a narcotic drug, to-wit: heroin." 216 Kan. at 639, 533 P.2d 1229. The State also dismissed the conspiracy to sell cocaine charge. The trial court overruled the defendant's motion to quash the...