Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge.
SYLLABUS BY THE COURT 1. Multiplicity is the charging of a single offense in several counts of a complaint or information. Appellate courts do not permit multiplicity because it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. 2. The question of whether convictions are multiplicitous is a question of law subject to unlimited review. 3. In considering a double jeopardy issue, the overarching inquiry is whether the convictions are for the same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?
4. In determining whether two convictions arise from the same, or unitary, conduct, the court must consider: (1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct. 5. If multiple convictions are for the same crime defined in a single statute, the statutory definition of the crime determines what the legislature intended as the allowable unit of prosecution, and there can be only one conviction for each allowable unit of prosecution. 6. The key to determining the unit of prosecution for any particular crime is legislative intent. But if the legislative intent is unclear, an appellate court applies the rule of lenity to construe the unit of prosecution in favor of the accused. 7. Considering the theft statute as a whole, the nature of the conduct proscribed is gaining unauthorized control over property, rather than the victimization of any particular person. Accordingly, the unit of prosecution for theft is the act of unlawfully taking property, unaffected by the number of persons or entities possessing an ownership interest in the stolen property.
The opinion of the court was delivered by: Johnson, J.
Review of the judgment of the Court of Appeals in 44 Kan. App. 2d 145, 234 P.3d 853 (2010).
Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, reversed in part, and remanded with directions.
The opinion of the court was delivered by
Patrick I. Hood was charged with and convicted of two counts of felony theft based upon his admission that he grabbed a bank bag and a purse from a counter in a restaurant and fled the establishment with the stolen items. The Court of Appeals rejected Hood's multiplicity argument that the two theft convictions violated both federal and state constitutional prohibitions against double jeopardy. The panel relied in part on the fact that the stolen property had different owners. State v. Hood, 44 Kan. App. 2d 145, 152, 234 P.3d 853 (2010). We granted Hood's petition for review of the Court of Appeals decision, which raised two issues: (1) "The two convictions for theft were multiplicitous, and violated the Double Jeopardy Clause of the Fifth Amendment and Section 10 of the Kansas Constitution Bill of Rights"; and (2) the district court violated Hood's constitutional right to a jury trial by sentencing him to an increased sentence based upon a prior criminal history that was not proved to a jury beyond a reasonable doubt. Hood's sentencing issue has no merit, but we reverse one of his theft convictions as multiplicitous.
FACTUAL AND PROCEDURAL OVERVIEW
The incident that led to Hood's theft convictions occurred in the Yen Ching restaurant in Wichita. Technically, the business was owned by a corporation named Chang's Inc., although Cathay Chang testified at Hood's preliminary hearing that she owned and ran the Yen Ching restaurant.
On June 14, 2007, Hood entered the restaurant during business hours, purchased a drink, and proceeded to a second-floor balcony. As Hood was noticing that the restaurant patrons were beginning to leave, he saw Chang withdraw money from the register and place it in a bank bag. He decided to hide in a supply room to await an opportunity to grab the bag and flee.
Chang closed the restaurant at 11 p.m. and proceeded to clean up, after placing the bank bag and her purse together on a counter on the first floor. The bank bag contained Chang's jewelry, which she had removed before starting to clean, and over $1,000 from the day's restaurant receipts; the purse contained Chang's wallet, credit cards, and medicine. Eventually, Chang went out the restaurant's back door, providing Hood the opportunity to grab the bag and purse and exit through the front door. Chang and Hood had an encounter in the parking lot, but Hood was able to get away. The police found and arrested Hood the next morning. He was charged with aggravated burglary of the restaurant and two counts of felony theft for taking the bank bag and purse, together with other charges for which he was subsequently acquitted. After the jury convicted Hood, the district court sentenced him to 57 months' imprisonment for aggravated burglary and a 6-month sentence for each of the theft convictions, all to be served concurrently. As indicated, the Court of Appeals affirmed Hood's convictions and sentences. Hood, 44 Kan. App. 2d at 146, 154-55.
Multiplicity is "the charging of a single offense in several counts of a complaint or information." State v. Thompson, 287 Kan. 238, 244, 200 P.3d 22 (2009). We do not permit multiplicity because "it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights." Thompson, 287 Kan. at 244 (citing State v. Fisher, 283 Kan. 272, 312, 154 P.3d 455 ). Hood contends that because he committed only one theft offense when he performed the ...