State v. Whetstone

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No. 101,157

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ERIC WHETSTONE,
Appellant.

SYLLABUS BY THE COURT

1.
Multiplicity is the charging of a single offense in several counts of the complaint.

2.
Multiplicity creates the potential for multiple punishments for a single offense 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.

3.
The issue of whether convictions are multiplicitous is a question of law subject to
unlimited review on appeal.

4.
The analytical framework for the resolution of multiplicity issues is discussed and
applied.

5.
Under both federal and state law, the unit of prosecution is evaluated under the
rule of lenity. The rule will be applied when the legislature fails to provide a unit of
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prosecution that clearly and without ambiguity allows two convictions for the same act.
In such a case only one conviction will be allowed.

6.
Under the facts of this appeal, the unit of prosecution for criminal threat allows
only one conviction for the same underlying act regardless of the number of intended
victims.

7.
When a defendant fails to object to admission of 60-455 evidence, he or she fails
to preserve the issue for appeal.


Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed April 22, 2010.
Affirmed in part, reversed in part, and remanded with directions.

Michelle Davis, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six,
attorney general, for appellee.

Before RULON, C.J., GREENE, J., and KNUDSON, S.J.

KNUDSON, S.J.: In this direct appeal after a jury trial, Eric Whetstone contends his
convictions for two counts of criminal threat are multiplicitous. He further contends the
district court committed prejudicial error in failing to give the jury a limiting instruction
regarding other crimes evidence presented at trial.

We conclude: (1) Whetstone's convictions for criminal threat are multiplicitous;
and (2) the K.S.A. 60-455 issue has not been preserved for appeal. Accordingly, we
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affirm in part and reverse one count of criminal threat, and the sentence for that
conviction is vacated. We remand for resentencing on the two remaining convictions.

The Multiplicity Issue

The parties agree that for purposes of analysis, Whetstone made one threat that
was communicated to two individuals; specifically, he communicated the threat to "burn
down the house and kill [them] all." As a result, he was charged with and convicted of
two counts of criminal threat for a threat to "[c]ommit violence communicated with intent
to terrorize another," as proscribed in K.S.A. 21-3419(a)(1). The issue on appeal is
whether Whetstone's convictions are multiplicitous.

Multiplicity is the charging of a single offense in several counts of the complaint.
State v. Gomez, 36 Kan. App. 2d 664, Syl. ¶ 1, 143 P.3d 92 (2006). Multiplicity creates
the potential for multiple punishments for a single offense 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. State v. Schoonover, 281 Kan. 453, Syl. ¶ 10, 133
P.3d 48 (2006). The issue of whether convictions are multiplicitous is a question of law
subject to unlimited review on appeal. Schoonover, 281 Kan. at 462.

K.S.A. 21-3419(a)(1) defines a criminal threat as any threat to:

"Commit violence communicated with intent to terrorize another, or to cause the
evacuation of any building, place of assembly or facility of transportation, or in reckless
disregard of the risk of causing such terror or evacuation." (Emphasis added.)


In Schoonover, the Kansas Supreme Court developed a two-component analytical
framework for the resolution of multiplicity issues: "(1) Do the convictions arise from
the same conduct? and (2) By statutory definition are there two offenses or only one?"
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281 Kan. at 496. In the present appeal the parties agree that the two charges for criminal
threat arose from one utterance; consequently, the only issue is whether K.S.A. 21-
3419(a)(1) allows for multiple convictions for the same threat.

When inquiring into Schoonover's second component, whether the statutory
definition allows for multiple violations of a single statute, the Kansas Supreme Court
instructs this court to apply the "unit of prosecution test." 281 Kan. at 497. "[T]he test is:
How has the legislature defined the scope of conduct which will comprise one violation
of the statute?" 281 Kan. at 497. This defined scope of prohibited conduct determines the
allowable unit of prosecution for which there can only be one conviction for a single act.
281 Kan. at 497-98. "The determination of the appropriate unit of prosecution is not
necessarily dependent upon whether there is a single physical action or a single victim.
Rather, the key is the nature of the conduct proscribed." 281 Kan. at 472. The key to
determining the unit of prosecution is legislative intent. 281 Kan. at 471.

In determining legislative intent under K.S.A. 21-3419(a)(1), we would note
paragraph (a)(1) has discrete subparts to be considered depending on whether proscribed
conduct is directed toward a person or an occupied structure. It is apparent from a plain
reading of the statute that the number of persons in an occupied building, place of
assembly, or facility of transportation to be evacuated is not of elemental value.
Consequently, we must ask, under the first subpart of paragraph (a)(1), did the legislature
intend multiple prosecutions for a single criminal threat directed to more than one
person?

In State v. Wright, 259 Kan. 117, 911 P.2d 166 (1996), the court held K.S.A. 1994
Supp. 21-3419 did not require the State to prove the defendant knew his or her threat
would be communicated to the victim. The court held the State need only present
evidence of an intent to terrorize or an act in reckless disregard of causing such terror.
259 Kan. at 122. Thus it is not required under 21-3419 that the threat be communicated
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to the victim; it just has to be communicated to someone. Wright supports our
conclusion that the unit of prosecution is the making of a threat to commit violence
communicated to another. See also State v. Woolverton, 284 Kan. 59, 159 P.3d 985
(2007).

K.S.A. 21-3110 states:

"The following definitions shall apply when the words and phrases defined are
used in this code, except when a particular context clearly requires a different meaning.
. . . .
"(2) 'Another' means a person or persons as defined in this code other than the
person whose act is claimed to be criminal." (Emphasis added.)

There is nothing in the context of K.S.A. 21-3419(a)(1) that would clearly require
a different meaning for "another" within the phrase "intent to terrorize another" than as
provided in K.S.A. 21-3110. Consequently, we hold "another" in the criminal threat
statute to mean a person or persons. Our interpretation renders the first subpart of K.S.A.
21-3419(a)(1) consistent with the remaining subparts of paragraph (a)(1); that is to say,
the number of persons to whom the threat is communicated does not determine the unit of
prosecution. Accordingly, a plain reading of the statute requires us to hold that
Whetstone's convictions for two counts of criminal threat are multiplicitous.

Moreover, under both federal and state law, the unit of prosecution is evaluated
with "a rule of lenity." Gomez, 36 Kan. App. 2d at 670. The rule of lenity derives from
the United States Supreme Court's pronouncement that "[w]hen Congress leaves to the
Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be
resolved in favor of lenity." Schoonover, 281 Kan. at 472 (quoting Bell v. United States,
349 U.S. 81, 83, 99 L. Ed. 905, 75 S. Ct. 620 [1955]). In application, when the
legislature fails to provide a unit of prosecution that "'clearly and without ambiguity'"
allows two convictions for the same act, only one conviction will be allowed. 281 Kan.
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at 472. Consequently, as there is an ambiguity as to legislative intent, we reach the same
conclusion: Whetstone's convictions are multiplicitous.

Failure to Give a K.S.A. 60-455 Instruction

Whetstone also challenges the trial court's failure to give a limiting instruction for
evidence he contends was only admissible under K.S.A. 60-455. The record on appeal
discloses Whetstone did not file a motion in limine or object to the evidence when
introduced at trial. Our Supreme Court has held that when a defendant fails to object to
admission of 60-455 evidence, he or she fails to preserve the issue for appeal. State v.
King, 288 Kan. 333, 348, 204 P.3d 585 (2009). Accordingly, Whetstone's failure to
provide a timely and specific objection to the challenged evidence precludes appellate
review of this issue.

Conclusion

We affirm in part, reverse in part, and remand with directions.