1. Multiplicity is the charging of a single offense in several counts of a complaint or information. Multiplicitous convictions violate a defendant's rights under both the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights because they constitute multiple punishments for a single offense.
2. In determining whether multiple convictions have subjected a defendant to double jeopardy, we first determine whether the convictions arose from the same or unitary conduct, and, if so, we next consider whether the conduct, by statutory definition, constitutes one offense or two. If both components are met—unitary conduct statutorily defined as one offense—double jeopardy is violated when the defendant is convicted of more than one offense for such conduct.
3. Appellate courts utilize four factors to aid in the consideration of whether a defendant's convictions arose from the same or unitary conduct: (1) whether the acts occurred at or near the same time, (2) whether the acts occurred at the same location, (3) whether a causal relationship existed between the acts, in particular whether an intervening event separated the acts, and (4) whether a fresh impulse motivated some of the conduct.
4. Under K.S.A. 21-3107(2), the Kansas Legislature has declared that a criminal defendant may be convicted of either the crime charged or a lesser crime, but not both, and an attempt to commit the crime charged is a lesser included crime. Accordingly, the prohibition against convicting a defendant for both the crime charged and an attempt to commit the crime charged is an explicit statement by the legislature that the unitary conduct forming the basis for both charges is to be defined as one offense.
5. K.S.A. 2009 Supp. 21-4642(a) mandates that an aggravated habitual sex offender shall be sentenced to imprisonment for life without the possibility of parole. Pursuant to K.S.A. 2009 Supp. 21-4642(c)(1), an aggravated habitual sex offender is a person, who, on and after July 1, 2006: (A) has been convicted in this state of a sexually violent crime, as described in paragraphs (3)(A) through (3)(J) or (3)(L); and (B) prior to the conviction of the felony under subparagraph (A), has been convicted on at least two prior conviction events of any sexually violent crime.
6. A challenge to a sentence as being illegal may be considered for the first time on appeal.
7. Generally, the appellate courts must decide questions of law and do not permit the parties to stipulate to the legal conclusions to be drawn from admitted facts. Criminal defendants cannot agree to be punished by an illegal sentence.
8. When the record on review does not support a presumption that the district court found all the facts necessary to support the judgment, an appellate court will remand the case for additional findings and conclusions.
9. The actus reus of the sexual intercourse reference in the rape statute, K.S.A. 21-3502, is penetration. The language in the statutory definition of sexual intercourse at K.S.A. 21-3501(1), listing alternative objects that can be used to penetrate the female sex organ to effect sexual intercourse, merely describes the factual circumstances by which the material element of penetration may be proved, rather than establishing alternative means of committing rape.
10. The sentence enhancement provisions for aggravated habitual sex offenders in K.S.A. 2009 Supp. 21-4642 are constitutional.
Appeal from Sedgwick District Court; Anthony J. Powell, judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
Robert Weber directly appeals his convictions and sentences for rape and attempted rape. Weber was sentenced to two terms of life in prison without parole as an aggravated habitual sex offender, pursuant to K.S.A. 2009 Supp. 21-4642. On appeal, he claims that (1) his convictions for rape and attempted rape are multiplicitous, in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights; (2) a prior Michigan conviction does not qualify as a "sexually violent crime" so as to support a finding that he was an aggravated habitual sex offender; (3) there was insufficient evidence to support all of the charged alternative means of committing rape; (4) the jury instruction for the overt act element of attempted rape was broader than the charging document; and (5) K.S.A. 2009 Supp. 21-4642 provides for an unconstitutional enhancement of the statutory sentence based upon facts that have not been proved to a jury beyond a reasonable doubt.
We agree that both convictions cannot stand and, accordingly, we reverse Weber's conviction for attempted rape. The sentence on the remaining rape conviction is vacated, and the case is remanded for the district court to determine whether the State has established that Weber meets the statutory definition of an aggravated habitual sex offender under K.S.A. 2009 Supp. 21-4642. The reversal of the attempted rape conviction as multiplicitous renders moot Weber's challenge to the jury instruction on that count. Finally, we reiterate that rape is not an alternative means crime and that the aggravated habitual sex offender provisions of K.S.A. 2009 Supp. 21-4642 are constitutional.
Factual and Procedural Overview
Weber became acquainted with M.E.W., an 80-year-old woman, through a church prison ministry. In November 2009, M.E.W. brought Weber to her home to assemble shelves in her basement. The two worked together in the basement until M.E.W. went upstairs to change clothes.
While M.E.W. was changing clothes in her bathroom, Weber entered the room and said something like "I have to do this." He then threw M.E.W. to the floor and proceeded to remove her clothing, while she struggled and implored him not to rape her. Weber positioned himself on top of M.E.W. and unsuccessfully attempted to penetrate her vagina with his penis. After M.E.W. told him she had not had sex with anyone since her husband died 12 years before, Weber forced his fingers inside her vagina before again attempting penile penetration. Weber never accomplished penile penetration, ultimately ejaculating on M.E.W.'s thigh.
After the assault, Weber left the house while M.E.W. called 911. The responding law enforcement officer found Weber waiting outside M.E.W.'s house and took him into custody. He was charged with one count of rape and one count of attempted rape. The jury convicted Weber on both counts.
The presentence investigation report (PSI) reflected that Weber had two prior convictions from the State of Michigan, one of which was for assault with intent to commit criminal sexual conduct in the second degree (assault). The sentencing court proceeded to sentence Weber as an aggravated habitual sex offender under K.S.A. 2009 Supp. 21-4642, based in part on the prior Michigan assault conviction being for a "sexually violent crime." But the sentencing court did not make any findings in that regard, apparently relying on the defense attorney's acquiescence in the application of the sentence enhancement provisions of K.S.A. 2009 ...