Appeal from Montgomery district court; JACK L. LIVELY, judge.
1. There is no requirement that a criminal defendant challenge the sufficiency of the evidence before the trial court in order to preserve the question for appeal.
2. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all of 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 dou bt.
3. Evidence that defendant committed the underlying felony of criminal discharge of a firearm at an occupied vehicle is held to be sufficient to support the conviction of that crime and felony murder.
4. Felony murder and criminal discharge of a firearm are intended to be separate offenses for which there can be cumulative punishments. Double jeopardy does not attach to convictions under the felony-murder statute, K.S.A. 21-3401(b), and the felony criminal discharge of a firearm at an occupied vehicle statute, K.S.A. 2006 Supp. 21-4219(b), even if the charges arise from the same conduct.
5. An appellate court reviews the admission of a confession using a dual standard of review. First, the court reviews the factual findings using a substantial competent evidence standard. Giving deference to the trial court's factual findings, an appellate court does not reweigh the evidence or pass on the credibility of witnesses. Second, the court analyzes the ultimate legal conclusion drawn from the trial court's factual findings using an unlimited standard of review.
The opinion of the court was delivered by: Mcfarland, C.J.
Darrell L. Farmer appeals his convictions and sentences for first-degree felony murder, criminal discharge of a firearm at an occupied vehicle, aggravated burglary, aggravated battery, and aggravated assault. Farmer argues: (1) the evidence was insufficient to support his conviction of criminal discharge of a firearm at an occupied vehicle and, thus, both that conviction and his felony-murder conviction predicated thereon cannot stand; (2) his convictions for felony murder and criminal discharge of a firearm at an occupied vehicle are multiplicitous; (3) his confession was involuntary; and (4) the district court improperly determined his criminal history score without having it proven to a jury beyond a reasonable doubt.
The events that led to the convictions in this case occurred on July 13, 2002, starting with DeAundrey Neal driving to Farmer's apartment complex in Coffeyville, Kansas, and honking his car's horn. Farmer, who was walking to the northeast between the apartment buildings, returned to the parking area and spoke with Neal through the passenger-side window of Neal's vehicle. A witness saw Farmer walk from the passenger-side window around to the driver's side of Neal's vehicle, pull a gun from his pocket, and put his arm inside the vehicle. The witness then heard several shots. Neal sustained six gunshot wounds: three gunshots to the head, one shot to his neck, one shot in his clavicle, and one shot in his arm. He died at the scene.
After killing Neal, Farmer walked to his apartment, remained inside for a few minutes, then walked out of the apartment complex in a northeasterly direction, the same direction he was headed when Neal had honked his horn at him. Farmer walked about a block to Levi Hayes' house to collect money that Hayes owed him.
Without knocking, Farmer kicked Hayes' front door open and burst into the house. Once inside, Farmer screamed at Hayes, who had been asleep on the couch, then began beating Hayes with the gun he had used to shoot Neal. When Hayes' wife, Betty Hayes, attempted to stop Farmer from beating Hayes, Farmer grabbed Betty, pointed the gun at her head, and threatened to kill her. While Hayes struggled with Farmer to get the gun, Betty ran next door and called the police.
During the scuffle, Farmer bit Hayes on the neck. Eventually, Hayes took the gun from Farmer. Farmer then left the house. Hayes followed Farmer onto the porch and pointed the gun at Farmer. Hayes was aware the gun was empty because during the struggle Farmer had pulled the trigger and the gun clicked without firing. Hayes then left the gun on the front porch and went back inside the house. Later, ballistics testing of the gun Hayes took from Farmer confirmed that the gun had been used to shoot Neal.
Shortly after the police received Betty's call, they received a separate telephone call that gunshots had been fired. The police believed that the two calls were related because of the close physical proximity of the callers' addresses. The police responded first to the shots-fired call rather than Betty's call.
A witness at the scene of Neal's shooting informed police that he had observed someone wearing khaki pants and a white shirt leaving the apartment complex to the north. Following that information, two officers headed north from the apartment complex and noticed Farmer, who fit the witness' description, walking down the street. The officers observed that Farmer had blood on his clothing.
When Farmer became aware of the officers, he began to take off his clothes. The officers ordered Farmer to stop after he had removed his shirt and was taking off his pants. Farmer then dropped his pants, attempted to run, but tripped himself. When the officers apprehended Farmer, Farmer stated, "Dear Jesus, please forgive me. Please forgive me. I didn't mean to do it." After his arrest but before he was restrained, Farmer kicked one of the officers twice.
Coffeyville police interviewed Farmer immediately after his arrest. After Farmer waived his Miranda rights and agreed to speak with the officers, Farmer denied that he had consumed drugs or alcohol, then stated he had no knowledge of Neal being shot. When Farmer was booked into jail, Coffeyville police found in Farmer's pocket a live round of ammunition matching that used to shoot Neal and a bottle of phencyclidine (PCP).
The next morning, Detectives Diane George and Brian Richstatter from the Coffeyville police department interrogated Farmer. Farmer again waived his Miranda rights and agreed to speak with the officers. Farmer admitted fighting with Hayes and told the officers that he believed he had been arrested for that fight. Farmer then stated that he was to meet Neal, but the meeting did not occur. He claimed he was not aware that Neal had been shot.
Detective Richstatter asked Farmer if he was a "very religious person." Farmer responded that he was. Detective Richstatter told Farmer to remember that God would forgive him, but Farmer had to be honest. After the detectives had encouraged Farmer to tell the truth, Farmer admitted to the officers that he shot Neal. Farmer stated that the purpose of his arranged meeting with Neal was for Neal to deliver a job application to him. Instead, Neal asked Farmer to sell him some rocks of cocaine. This angered Farmer.
Farmer said he had consumed alcohol and smoked a marijuana joint dipped in PCP prior to the shootings. The detectives obtained samples of Farmer's blood and urine for testing, which showed that Farmer had PCP and marijuana in his urine, but only marijuana in his blood when he had confessed to killing Neal.
The State charged Farmer with first-degree felony murder based on the underlying felony of criminal discharge of a firearm at an occupied vehicle, criminal discharge of a firearm at an occupied vehicle, aggravated burglary for breaking into the Hayes' house, aggravated battery for beating Hayes, and aggravated assault for threatening Betty with a gun.
After a jury convicted Farmer of all charges, the district court sentenced Farmer to life in prison for felony murder, 228 months for criminal discharge of a firearm, 34 months for aggravated burglary, 13 months for aggravated battery, and 13 months for aggravated assault. All five sentences were ordered to run consecutively. Farmer appeals his convictions and his sentences.
SUFFICIENCY OF THE EVIDENCE SUPPORTING THE CRIMINAL DISCHARGE OF A FIREARM AT AN OCCUPIED VEHICLE CONVICTION
Farmer argues that there is insufficient evidence to support the underlying felony of discharging a firearm at an occupied vehicle and, thus, he cannot be convicted of either the underlying felony or felony murder.
The State argues that this issue is not properly before the court because Farmer has raised it for the first time on appeal. To support this argument, the State cites the general rule that appellants cannot raise new issues, including constitutional grounds, for the first time on appeal. See State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993). The State, however, cites no authority for the specific proposition that a challenge to the sufficiency of the evidence before the district court is necessary to preserve it for appeal. There is no requirement that a criminal defendant challenge the sufficiency of the evidence before the trial court in order to preserve it for appeal. See K.S.A. 22-3601(b)(1); K.S.A. 2006 Supp. 22-3602. This issue is properly before us.
When the sufficiency of the 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 ...