IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 82,678
STATE OF KANSAS,
Appellee,
v.
CHARLES R. ROBBINS,
Appellant.
SYLLABUS BY THE COURT
1. If the defendant enters a request for disposition under Article III of the Interstate Agreement on Detainers, then the prisoner must be returned to the jurisdiction where the detainer has been filed and must be tried within 180 days after a written notice and his or her request have been delivered to the prosecuting officer and the appropriate court. K.S.A. 22-4401, Art. III(a). The 180 days does not begin to run until the prisoner's request has been received by both the prosecuting officer and the appropriate court in the receiving state.
2. Under Article IV of the Interstate Agreement on Detainers, a prisoner may also be returned pursuant to a request for temporary custody by the state where the charges are pending. If returned pursuant to such a request, then the prisoner must be tried within 120 days of his or her arrival in the receiving state. K.S.A. 22-4401, Art. IV(d).
3. The Interstate Agreement on Detainers does not prohibit the receiving state from trying the defendant on charges that were added or amended after the date of a request under Article III or IV and expressly provides for prosecution on any other charges arising out of the same transaction.
4. Where a defendant is charged with aggravated robbery while armed with a dangerous weapon and there is an issue as to whether the defendant was "armed with a dangerous weapon," the jury should be instructed that an object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and the victim reasonably believed it to be a dangerous weapon. See PIK Crim. 3d 56.31.
5. In an aggravated robbery trial, it is not necessary for the State to show that the defendant actually exhibited a weapon; it is only required that there be some substantial evidence to raise a reasonable inference that the defendant was armed with a dangerous weapon.
6. The trial court has great discretion regarding the extent and substance of its responses under K.S.A. 22-3420(3) to jury questions during deliberations regarding matters of law or evidence in the case.
7. For specific intent crimes, voluntary intoxication is only considered as a defense if it renders the defendant "substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law." K.S.A. 21-3208(1).
8. Whether convictions are multiplicitous is a question of law subject to unlimited review. Multiplicity is the charging of a single offense in several counts of a complaint or information. The reason multiplicity must be considered is that it creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights.
9. The State may not split a single offense into separate parts where there is a single wrongful act which does not furnish the basis for more than one criminal prosecution. However, where the criminal conduct of the defendant supports convictions for more than one crime, K.S.A. 21-3107 provides statutory authority for multiple convictions even though the criminal conduct of a defendant consists of a single transaction.
10. The test concerning whether a single transaction may constitute two separate and distinct offenses is whether the same evidence is required to sustain each charge. If not, the fact that both charges relate to and grow out of the same transaction does not preclude convictions and sentences for both charges. Multiplicity does not depend upon whether the facts proved at trial are actually used to support conviction of both offenses charged; rather, it turns upon whether the elements of proof necessary to prove one crime are also necessary to prove the other.
11. It is not necessary for the State to prove an aggravated robbery in order to prove that a kidnapping or aggravated kidnapping was done with the intention to hold the victim for the purpose of facilitating an aggravated robbery. The kidnapping statute does not require a conviction or even the filing of a complaint on the underlying crime in order to properly charge and convict the defendant with kidnapping.
12. Under the facts of this case, where the State expressly relied on a rape and aggravated criminal sodomy as the only possible sources of bodily harm to support the charge of aggravated kidnapping, the aggravated kidnapping conviction is multiplicitous.
Appeal from Wyandotte district court; THOMAS L. BOEDING, judge. Opinion filed September 28, 2001. Affirmed in part, reversed in part, and remanded with directions.
Barry Albin, of Kansas City, argued the cause and was on the brief for appellant.
Terra D. Morehead, assistant district attorney, argued the cause, Nick Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
LARSON, J.: Charles R. Robbins appeals his jury convictions of aggravated burglary, K.S.A. 1991 Supp. 21-3716; aggravated kidnapping, K.S.A. 21-3421 (Ensley 1988); kidnapping, K.S.A. 21-3420 (Ensley 1988); rape, K.S.A. 21-3502 (Ensley 1988); aggravated criminal sodomy, K.S.A. 21-3506 (Ensley 1988); and aggravated robbery, K.S.A. 21-3427 (Ensley 1988). Robbins asserts 10 distinct claims of error.
Factual background
The crimes were committed on January 25, 1992, but Robbins was not tried until October 1998, because he fled Kansas and was not located until late 1997 in a Florida prison under an assumed name.
The trial testimony revealed that the victims, Mr. and Mrs. G., knew Robbins and his cousin, Terry Sofranski, through relatives. Sofranski lived in the vicinity of Mr. G.'s cousin and Mrs. G. had met Robbins, whom she knew as "Chuck," on several occasions.
On the evening of the alleged crimes, Mr. and Mrs. G. were in bed in their back bedroom with their small dog sleeping near their feet. A backyard light illuminated the bedroom. Sometime after midnight, Mrs. G. heard footsteps in the house, awoke her husband, and then called out, "[W]ho the hell is in my house?"
Mrs. G. testified she saw two figures appear in the doorway. One asked where her husband was and when she said he was not there, she was told that her husband better show himself or he would "blow" her "fuckin' head off." Mrs. G. recognized the voice as that of "Chuck" (Robbins). Robbins came into the bedroom and duct taped Mr. G. and then Mrs. G. She testified that she heard Sofranski saying "wrap 'em up, wrap 'em up," but she was aware of only Robbins actually coming into the bedroom.
While Mrs. G. lay face down on the bed with her hands duct taped behind her, Robbins sexually assaulted her; he inserted his penis into Mrs. G.'s anus and he later put his finger in her vagina. She testified she was scared and begged him to please stop because he was hurting her. At some point he turned her over and duct taped her mouth, at which time she saw his face. From his voice and face, she had no doubt that it was Robbins who assaulted her.
The robbers found no money and she heard Sofranski's voice coming from the front room, urging Robbins to leave, which they did shortly thereafter.
Mr. G.'s description of events was consistent with his wife's. He heard Sofranski saying, "[W]rap 'em up." He rolled over closer to the doorway as he was directed and was duct taped by Robbins with his hands behind his back and over his mouth and nose. He heard the man assaulting his wife and her saying, "you're hurting me."
Mr. G. testified that he had no weapons in the house but said he knew from experience what a pump-action shotgun sounded like and that he heard a noise in the kitchen like a shell being loaded in a pump-action shotgun. Mr. G. testified that he did not own a BB gun at the time of the break-in and only acquired one at a later date.
Mr. and Mrs. G. managed to free themselves from the tape. Their dog's mouth and paws had also been taped, and they freed her as well. They discovered their television, VCR, stereo, and telephone were missing from the house. Their car had also been stolen. They dressed quickly and summoned the police.
Police Officer Timothy Hylton testified that on the night of the incident, Mr. G. told him their home had been broken into and his wife had been raped. He said Mr. G. also told him that one of the intruders said he would kill Mrs. G. unless the Gs complied with their orders. Hylton testified that Mrs. G. consistently described what happened and identified the two intruders by name. The victims told the officer that they believed the weapon held by the intruders was a shotgun.
Mrs. G. received a medical examination where the assisting nurse documented a random pattern of red marks on Mrs. G.'s buttocks and red marks on both of her wrists. The examining doctor found no sperm on a vaginal swab taken for the rape kit, but he testified this was not necessarily inconsistent with what she said occurred.
The victims' car was found later that day, and the television, stereo, and VCR were recovered from a party who had bought the items from Sofranski. The cumulative value of the three items was estimated at trial to be $750, and the purchaser testified that Sofranski had stated he was going to divide the money with Robbins.
Sofranski was arrested shortly after the incident and gave a statement which was used at Robbins' trial. Sofranski was tried in 1992 and was convicted of burglary and theft. At Robbins' trial, Sofranski testified that he had earlier stolen Mrs. G.'s keys and after entry to the house, he told Robbins to go back and make sure the Gs did not come out front while he gathered the items.
Sofranski testified they did not have a weapon, but they found a BB gun in the house which he took and later sold. In an earlier statement to the police, Sofranski had stated he and Robbins had a rifle-type BB gun which he took with him to the back room. Sofranski claimed he did not know what Robbins did in the back room during the time he was gathering items in the living room. In his police statement, however, Sofranski had stated that Robbins said something about taking Mrs. G. into another room and doing what he wanted with her. Sofranski testified that he never saw any duct tape. He said he finally got Robbins to leave with him, and they drove away in the Gs' car.
Robbins testified he went with Sofranski to the Gs' house but assumed they were allowed to be there. He said when he heard a lady yell, Sofranski told him to go in back and keep the people where they were. He claimed to have pulled his sweatshirt up over his face, then stood in the doorway where he saw the Gs in bed and recognized them. He testified he tried to lower his voice when he told them to be quiet. He denied using any duct tape, claimed that he had no weapons and saw no weapons, and denied sexually assaulting Mrs. G. He testified that he left with the items which were sold. After he was given a part of the money, he left for Arkansas a couple of days later. He claimed to have been drinking and that the alcohol affected his judgment, but he admitted that he knew what he was doing.
Robbins was convicted on all counts except an unlawful possession of a firearm charge. After his post-trial motions were denied, and he was sentenced, he appealed. We have jurisdiction under K.S.A. 22-3601(b)(1).
Statute of limitations
Robbins first argues that his prosecution was barred by the 2-year statute of limitations found in K.S.A. 1991 Supp. 21-3106(3). Subparagraph (4) of this statute states that the period within which a prosecution must be commenced does not include any period in which the accused is absent from the State. The offenses were committed on January 25, 1992, and Robbins had left Kansas according to the record by January 29, 1992. He was not located until late 1997. His letter from Florida requesting disposition of his case was filed on May 4, 1998. He was returned to Kansas and arrested on May 19, 1998. His trial commenced October 26, 1998. Out of the roughly 6 years and 5 months which passed between the commission of his offenses and the filing of the fourth amended information, he was out of the State for all but, at most, a month and a half. Based on these facts, the argument that the 2-year statute of limitations bars prosecution is spurious.
The speedy trial limits of the Interstate Agreement on Detainers
Robbins next argues the speedy trial limitation of the Interstate Agreement on Detainers found in K.S.A. 22-4401 et seq., was violated. The State argues this issue was waived by not being raised until after sentencing, but even if not waived, this claim has no merit.
There are two methods for disposition of charges pending against a prisoner incarcerated in another state under the Interstate Agreement on Detainers. State v. White, 234 Kan. 340, 342, 673 P.2d 1106 (1983).
Under the agreement, a detainer is a notice filed with the confining institution that criminal charges are outstanding in another jurisdiction and that the prisoner is wanted in order to stand trial. State v. Clark, 222 Kan. 65, 68, 563 P.2d 1028 (1977). Once a detainer is lodged, the authorities having custody of the prisoner must promptly inform the prisoner of the source and contents of the detainer and shall inform him or her of the right to request a final disposition thereof. K.S.A. 22-4401, Art. III (d); 222 Kan. at 67.
If the defendant enters a request for disposition under Article III of the Agreement, then the prisoner must be returned to the jurisdiction where the detainer has been filed and must be tried within 180 days after a written notice and his or her request have been delivered to the prosecuting officer and the appropriate court. K.S.A. 22-4401, Art. III(a); White, 234 Kan. at 343; Clark, 222 Kan. at 67. The 180 days does not begin to run until the prisoner's request has been received by both the prosecuting officer and the appropriate court in the receiving state. In re Habeas Corpus Application of Sweat, 235 Kan. 570, 578-79, 684 P.2d 347 (1984); White, 234 Kan. at 344-45. Under Article IV, a prisoner may also be returned pursuant to a request for temporary custody by the state where the charges are pending. If returned pursuant to such a request, then the prisoner must be tried within 120 days of arrival in the receiving state. K.S.A. 22-4401, Art. IV(d); White, 234 Kan. at 342-43; Clark, 222 Kan. at 67.
Kansas law enforcement did not learn of Robbins' whereabouts until late 1997 when he was discovered incarcerated in Florida under the assumed name of James Zebus. On December 16, 1997, an alias warrant was issued. After being notified of the charges pending, Robbins requested disposition of the charges on April 21, 1998. This request was mailed by registered certified mail by the Florida Department of Corrections on April 27, 1998, and was received by the Clerk of the District Court of Wyandotte County, Kansas, on May 4, 1998. The exact date of Robbins' return to the state of Kansas is unclear from the available record, but it does show that on May 19, 1998, he was arrested, the warrant was returned, and he appeared in court in Kansas.
Assuming for purposes of this appeal that Robbins arrived in Kansas on May 19, 1998, then between his return and his trial, 161 days passed. While Robbins argues 163 days passed, both numbers are more than the 120 days allowed where Article IV applies. However, if Article III applies, then the 180-day speedy trial limit of that article was not violated because, at most, 176 days passed between the date Robbins' request for disposition was received by the proper authorities in Kansas and the date he was brought to trial in Kansas.
Robbins argues that because the State began a request for him to be returned he merely "acceded to their demand" and that this should bring him under the provisions of Article IV. The State more convincingly argues that its procedure was never completed because Robbins chose to file his request bringing into effect the provisions of Article III, including the 180-day limit of that Article.
Robbins' request was mailed before the 30-day waiting period for honoring the State's alleged April 9, 1998, request could have been completed. More importantly, the record indicates he was returned to Kansas, not because of any request by the State but, rather, expressly based upon his own request. This request was referred to in the Florida Department of Corrections letter offering temporary custody to Kansas and was attached to that letter with other necessary forms.
Based on the record, it is clear that Robbins was returned to Kansas pursuant to his Article III request, making the time limits of Article III applicable. His argument that both time limits applied was made and rejected in White, 234 Kan. at 342-43. Under the facts of this case, the speedy trial limits of the Agreement on Detainers were not violated and Robbins was timely tried.
The amendment of the charges
In the fourth amended information, two new charges were added, several of the crimes were charged as aggravated, and alternative means of committing some of the crimes were changed and/or added. This is the basis for Robbins also asserting the Interstate Agreement on Detainers was violated by the State trying him on charges that were added or amended after his request for disposition of his outstanding charges. This is a question of law subject to unlimited review.
In the first place, the agreement of Detainers does not contain any provisions making amendments impermissible. In fact, Article V(d) of the Agreement states:
"The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, information or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction." (Emphasis added.)
The fact that Sofranski was charged with lesser crimes has no significance although Robbins argues otherwise. The amended and added charges on which Robbins was finally prosecuted clearly arose out of the same transaction as that which gave rise to the first three informations. The State was not precluded by the Interstate Agreement on Detainers from making the amendments.
The jury instructions for aggravated robbery
Robbins next asserts the jury instruction on aggravated robbery was clearly erroneous because it did not include a definition of dangerous weapon like that found in State v. Childers, 16 Kan. App. 2d 605, 830 P.2d 50 (1991), rev. denied 250 Kan. 806 (1992). Intertwined with this argument is his assertion that the trial court responded improperly to the jury's question regarding whether a BB gun is a firearm.
The jury was instructed that to find Robbins guilty of the aggravated robbery of Mrs. G., it must find that Robbins intentionally took her property, the taking was by force or threat of bodily harm, and that the defendant was armed with a dangerous weapon, to-wit, a firearm or that the defendant inflicted bodily harm on any person [Mrs. G.] in the course of the robbery.
In Childers, a subjective test was correctly held applicable to the question of whether there was a dangerous weapon. 16 Kan. App. 2d at 612-14. The jury had been instructed in the following manner:
"'AS USED IN THIS INSTRUCTION A "DANGEROUS WEAPON" IS:
"A. ANY OBJECT INTENDED BY THE USER TO CONVINCE THE VICTIM THAT IT IS A DANGEROUS WEAPON; AND
"B. WHICH A REASONABLE PERSON UNDER ALL OF THE THEN EXISTING CIRCUMSTANCES WOULD BELIEVE IS A DANGEROUS WEAPON.'" 16 Kan. App. 2d at 615.
This is substantially the same definition as given in PIK Crim. 3d 56.31, which states: "[An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and which the victim reasonably believed to be a dangerous weapon.]"
The Notes on Use state:
"When there is an issue as to whether the defendant was 'armed with a dangerous weapon,' the bracketed definition should be used. State v. Colbert, 244 Kan. 422, 769 P.2d 1168 (1989). In Colbert, the Court held in Syl. ¶ 3: Whether or not a robber is 'armed with a dangerous weapon' for aggravated robbery purposes is determined from the victim's point of view (K.S.A. 21-3427). An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and the victim reasonably believes it is a dangerous weapon. Hence, an unloaded gun or a gun with a defective firing mechanism may be a dangerous weapon within the purview of the aggravated robbery statute."
There was no objection to the aggravated robbery instruction and, therefore, our standard of review is whether the instruction was clearly erroneous.
Several of our cases have reiterated the rule that it is not necessary for the State to show that the robber actually exhibited a weapon, and it is only required that there be some substantial evidence to raise a reasonable inference that the defendant was armed. See State v. Holbrook, 261 Kan. 635, 639, 932 P.2d 958 (1997); State v. Robertson, 225 Kan. 572, 574, 592 P.2d 460 (1979). A review of these cases indicates that it was error not to include the recommended PIK definition for a dangerous weapon; however, we find that the omission was not clearly erroneous. In this case, the question of whether there was a dangerous weapon for purposes of aggravated robbery hinged on whether the Gs' version of the robbery was believed or the defendant's. Robbins denied having any weapon and denied ever threatening to use a weapon against the Gs. The Gs testified to hearing a weapon and being threatened with being shot. They told the police that they thought there was a weapon. The jury clearly believed the Gs rather than Robbins, and the evidence supported a finding that there was a dangerous weapon within the meaning of the definition.
Robbins also complains about the trial court's response to the jury's mid- deliberation question. "We need to know if a BB rifle is considered a firearm." After a conference, the court noted that the term "firearm" was used in both the aggravated robbery instruction and the felony possession of a firearm instruction. The court attempted a definition covering both instances and told the jury that as to the aggravated robbery charge, a BB gun may be considered to be a dangerous weapon, but as to the felony possession of a firearm charge, a BB gun may not be considered to be a dangerous weapon.
Robbins argues this answer was erroneous. The trial court has great discretion regarding the extent and substance of its responses under K.S.A. 22-3420(3) to jury questions during deliberations regarding matters of law or evidence in the case. State v. Morris, 255 Kan. 964, 985-86, 880 P.2d 1244 (1994). We said in Morris: "The important consideration is that the jury be properly instructed on the essential issues presented at the trial, and this is particularly true in a criminal proceeding when the questions presented by the jury involves the basic elements of the criminal offense on which the defendant is being tried." If reasonable persons could differ about the propriety of the trial court's decision, there will be no abuse of discretion. Morris, 255 Kan. at 986.
Defense counsel told the trial court that the answer "should include the statement 'if perceived as such by the victim.'" He argues that had his suggestion been followed, the jury would have acquitted Robbins of aggravated robbery and most of the other charges. We do not agree. The court's response was actually technically correct: a BB gun could be considered a dangerous weapon--depending on the circumstances. However, in retrospect, a better answer might have been to supply the jury with the recommended PIK instruction defining dangerous weapon for purposes of the aggravated robbery charge. As we have stated, the jury resolved this matter based upon the credibility of Robbins' versus the Gs' version of the events. The jury found Robbins not guilty of the possession of a firearm charge and obviously believed the Gs' testimony, which was certainly sufficient to uphold the existence of a dangerous weapon in this case. No different outcome would have been reached had the "if perceived as such by the victim" wording championed by Robbins been given.
Instruction of voluntary intoxication
Robbins also asserts that the trial court erred in denying his request for an instruction on voluntary intoxication. His argument lacks merit. For specific intent crimes, voluntary intoxication is only considered as a defense if it renders the defendant "substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law." K.S.A. 21-3208(1). Here, Robbins by his own testimony indicated he knew what was happening and decided to continue with the crime because he figured he was in trouble anyway. He made an effort to conceal his face and voice which showed his awareness of the criminal nature of his acts. The evidence showed that he knew exactly what he was doing and knew it was wrong. The trial court did not err in declining to give an instruction for voluntary intoxication.
Lesser included crimes
Robbins next contends the trial court erred in not instructing the jury on the lesser included crimes of attempted aggravated criminal sodomy of Mrs. G. and unlawful criminal restraint of Mr. G. Our rule is well recognized that a criminal defendant is entitled to instructions on all lesser included offenses supported by the evidence at trial as long as: (1) such evidence, when viewed in the light most favorable to the defendant's theory, would justify a verdict in accord with that theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense. State v. Moncla, 262 Kan. 58, 73-74, 936 P.2d 727 (1997); see also State v. Borthwick, 255 Kan. 899, Syl. ¶ 10, 880 P.2d 1261 (1994) (trial court's duty to instruct arises only when the evidence at trial is such that the defendant might reasonably be convicted of the lesser offense).
Robbins argues that attempted criminal sodomy should have been instructed on because there was no physical evidence that rape or criminal sodomy took place and, further, because the jury could have concluded that his attempts at penetration were unsuccessful due to intoxication. This argument is without merit. Mrs. G. testified she was anally sodomized and that her vagina was digitally penetrated. Robbins denied that he ever sexually assaulted Mrs. G. in any way. He either committed the crimes or he did not; there was no evidence of an attempt and a lesser included charge for attempted aggravated criminal sodomy was not required by the evidence.
As to the unlawful restraint contention, Robbins argues that he did not actually kidnap Mr. G., but only unlawfully restrained him. His argument that there was no evidence of force or threat is without merit and is directly contradicted by the Gs. K.S.A. 21-3424 (Ensley 1988) defines unlawful restraint as "knowingly and without legal authority restraining another so as to interfere substantially with his liberty." As relevant here, kidnapping is "the taking or confining of any person, accomplished by force, [or] threat. . . , with the intent to hold such person: . . . . (b) [t]o facilitate flight or the commission of any crime; or (c) [t]o inflict bodily injury or to terrorize the victim or another." K.S.A. 21-3420 (Ensley 1988). Robbins was charged with taking or confining Mr. G. by force or threat. The jury was instructed that it must find that Robbins took or confined Mr. G. by force or threat with intent to inflict bodily injury or to terrorize him or to facilitate the commission of a crime, to wit: aggravated robbery, robbery, or theft.
This was clearly not a case of mere unlawful restraint. At the least, the evidence showed use of force or threat to carry out Mr. G.'s confinement. The evidence did not support a finding that Robbins merely knowingly and without legal authority restrained Mr. G. The unlawful restraint instruction need not have been given.
Cumulative error
Robbins attempts a cumulative error argument by stating the previous alleged errors, coupled with the taking of his motion to dismiss the unlawful possession of a firearm under advisement rather than ruling on it, and the failing to define a dangerous weapon somehow resulted in cumulative error. We have stated:
"Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant." State v. Humphery, 267 Kan. 45, Syl. ¶ 10, 978 P.2d 264 (1999).
We note that the jury acquitted Robbins of the charge of unlawfully possessing a firearm within 10 years of having been convicted of a felony, and the evidence against Robbins on the other charges was overwhelming. Based on our review of the record, we do not believe Robbins was denied a fair trial by reason of cumulative trial error.
Multiplicity
The argument Robbins makes with the most merit and which poses the most difficulty for us is that the crimes of aggravated robbery, aggravated kidnapping, kidnapping, rape, and aggravated criminal sodomy were multiplicitous. Whether convictions are multiplicitous is a question of law subject to unlimited review. State v. Vontress, 266 Kan. 248, 255, 970 P.2d 42 (1998). Multiplicity is the charging of a single offense in several counts of a complaint or information. The reason multiplicity must be considered is that it creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Constitution Bill of Rights. In Vontress, we said:
"The State may not split a single offense into sepa