State v. Phillips

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NOT DESIGNATED FOR PUBLICATION

No. 117,566

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JAMES M. PHILLIPS,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion filed August 3, 2018.
Affirmed in part and reversed in part.

Sarah Ellen Johnson, of Capital Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MCANANY, P.J., PIERRON, J., and WALKER, S.J.

PER CURIAM: James M. Phillips appeals his convictions of attempted first-degree
murder, attempted second-degree murder, attempted aggravated kidnapping, criminal
damage to property, fleeing or attempting to elude an officer, two counts of attempted
kidnapping, and two counts of attempted aggravated robbery. These convictions arise
from an attempted robbery at an AT&T cell phone store that left one woman with
devastating injuries.

Phillips contends that his two convictions for attempted aggravated robbery are
multiplicitous because the evidence did not show that he intended to take property from
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each individual but rather only from the store. He also contends that the prosecutor
committed reversible error in closing argument by repeatedly engaging in burden-
shifting. We conclude that Phillips' two convictions for attempted aggravated robbery are
multiplicitous, but we are not persuaded by his claim of prosecutorial error.

Facts

Shortly after Ashley Shakankary and Amanda Foos, the store manager, opened the
AT&T store for the day on August 11, 2015, Phillips entered, carrying the box for a cell
phone he already owned. He asked about activating a new phone. Ashley took Phillips
toward the back of the store and showed him prepaid plan options.

While Ashley was discussing the options with Phillips, Julie Dombo entered the
store in need of help with her text messages. Amanda began helping Julie at the main
counter in the center of the store. When Ashley and Phillips returned to the center of the
store, Phillips pulled out a gun, aimed it at the women, and said: "[T]his is not a joke,
take me to your back room where the phones are." At trial, Ashley testified:

"Q. What's [Phillips] doing with this gun?
"A. At that moment he was just kind of waiving it back and forth at the three of
us in the location."

Amanda testified:

"Q. Where exactly on your body was he pointing the gun?
"A. I mean, it was mid level. I mean, it is kind of a hard question to say, I mean,
he was just pointing the gun at all of us.
"Q. So he's swinging it around making sure that he gets each one of you?
"A. Yes."

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Ashley and Amanda began to comply, but Julie refused. She headed toward the
front of the store, and said: "I'm not having it." Phillips warned Julie that he would shoot
her if she did not comply. When Julie slipped behind a display kiosk, Phillips shot her in
the arm and the torso and then fled without any cell phones. Meanwhile, Amanda and
Ashley slipped out the back door and made their way to a neighboring store in the strip
mall where Amanda called 911. Julie survived but spent 114 days in the hospital, lost
hearing in one ear, lost part of her lung, and ultimately had to have both of her hands and
feet amputated.

Phillips got into an SUV and drove off. Derby Police Officer Larry Hampton
spotted Phillips and pursued him. Other officers joined in the chase. Phillips proceeded at
a high rate of speed and fired three shots at the pursuing Officer Hampton. Phillips
eventually lost control of the SUV and clipped a Wichita police car before running into a
ditch. He attempted to run but was quickly apprehended. When interviewed at the police
station, Phillips admitted all of his actions but denied that he intended to kill anyone.

Phillips was charged with attempted capital murder, attempted first-degree
murder, two counts of attempted kidnapping, attempted aggravated kidnapping, two
counts of attempted aggravated robbery, criminal damage to property, and fleeing or
attempting to elude an officer. Phillips represented himself at trial, where the main issue
in dispute was Phillips' intent. Phillips claimed he had not intended to kill either Julie or
Officer Hampton.

The jury found Phillips guilty of the lesser included crime of attempted second-
degree murder of Officer Hampton (as opposed to attempted capital murder) but guilty of
the remaining eight charges, including the two counts of attempted aggravated robbery.
The district court sentenced Phillips to 372 months in prison. Phillips' appeal brings the
matter before us.

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Multiplicity

Phillips claims his two convictions of attempted aggravated robbery are
multiplicitous because he was attempting to steal property from the store, not from the
individual store employees. This claim raises an issue of law over which we have
unlimited review. State v. Belt, 305 Kan. 381, 407, 381 P.3d 473 (2016). Although we
generally decline to address issues raised for the first time on appeal, we will address this
claim of multiplicity in order to serve the ends of justice and prevent a denial of
fundamental rights. State v. Weber, 297 Kan. 805, 809, 304 P.3d 1262 (2013).

Multiplicity is the charging of a single offense in several counts. State v. King, 297
Kan. 955, 970, 305 P.3d 641 (2013). 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 Section 10 of the Kansas Constitution
Bill of Rights. State v. Overman, 301 Kan. 704, 348 P.3d 516 (2015); State v.
Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006).

In resolving a multiplicity issue we must determine (1) whether the convictions
arise from the same conduct and (2) whether by statutory definition there are two
offenses or just one. King, 297 Kan. at 970.

In determining whether the convictions arose from the same conduct, we consider
(1) whether the acts occurred at or near the same time, (2) whether the acts occurred at
the same location, (3) whether there was a causal relationship between the acts or
whether there was an intervening causal event, and (4) whether there was a fresh impulse
motivating some of the conduct. State v. Pribble, 304 Kan. 824, Syl. ¶ 3, 375 P.3d 966
(2016).

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Here, the State concedes that Phillips' conduct satisfies this first test for
multiplicity. But there remains the question whether Phillips' actions constituted two
separate offenses, i.e., two separate units of prosecution. The jury convicted Phillips of
both charges. To resolve the second test for multiplicity, we must look at the statute and
define the scope of conduct which will comprise a unit of prosecution. There can be only
one conviction for each unit of prosecution. Pribble, 304 Kan. 824, Syl. ¶ 4.

In the context of multiple convictions for the crime of criminal threat, our
Supreme Court in King determined that when there is a single threat communicated to
multiple victims, there is still only one unit of prosecution, not multiple units of
prosecution based on the number of victims. Quoting Schoonover, the court stated:

"'Under this [unit of prosecution] test, the statutory definition of the crime determines
what the legislature intended as the allowable unit of prosecution. There can be only one
conviction for each allowable unit of prosecution.' [Citations omitted.]" King, 297 Kan. at
970.

The court noted cases in which the unit of prosecution issue had been discussed,
including State v. Pham, 281 Kan. 1227, 136 P.3d 919 (2006), which considered the unit
of prosecution under our aggravated robbery statute.

Phillips was charged with attempted aggravated robbery of both Amanda and
Ashley. Robbery "is knowingly taking property from the person or presence of another
by force or by threat of bodily harm to any person." K.S.A. 2017 Supp. 21-5420(a). A
robbery becomes aggravated when committed by a person armed with a dangerous
weapon or when the robber inflicts bodily harm during the robbery. K.S.A. 2017 Supp.
21-5420(b). Attempted aggravated robbery involves "an overt act toward the perpetration
of [the] crime done by a person who intends to commit such crime but fails in the
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perpetration thereof or is prevented or intercepted in executing such crime." K.S.A. 2017
Supp. 21-5301(a).

In Pham, an aggravated robbery case, the defendant tied up six family members in
one part of the house. While the family was tied up, jewelry was taken from only one
room of the house. Although the property was owned by more than one person, only one
person was relieved of the items by force. In finding only one unit of prosecution, the
court observed: "In the absence of clear legislative intent, the rule of lenity presumes a
single physical action harming multiple victims is only one offense." 281 Kan. at 1248.

But the court in Pham recognized that "under proper circumstances, one
transaction can support more than one count of aggravated robbery." 281 Kan. at 1251.
The court cited State v. Shoemake, 228 Kan. 572, 618 P.2d 1201 (1980), in which our
Supreme Court upheld separate aggravated robbery counts arising from a robbery in a
retail store. There, Shoemake drove the getaway car while Lucas entered the store to
commit the armed robbery. "The manager delivered money from one cash register to
Lucas who then took money by force from another store cashier at a different cash
register. The manager was then forced into the store's office and more money was taken
there." 228 Kan. at 573. The court determined that taking cash from two store employees
who had custody over separate bundles of the store's cash in two distinct locations of the
store constituted distinct crimes. The court stated:

"Where, in the course of the robbery of a business establishment, several
employees are held at gunpoint and compelled by force to deliver to the robber property
in the possession or custody of the employee, a separate and distinct aggravated robbery
occurs with the taking of property from each victim. In the present case, property was
taken from the manager, Lee Trial, and from the cashier, Frederick Larison, both of
whom were custodians of store property. The forcible taking of such property from these
employees constituted separate and distinct aggravated robberies which could be charged
in separate counts." 228 Kan. at 577.
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In a recent unpublished opinion, State v. Dale, No. 117,162, 2018 WL 2460263, at
* 3 (Kan. App. 2018) (unpublished decision), petition for rev. filed June 28, 2018, a panel
of our court upheld multiple convictions for aggravated robbery even though the
defendant took the property at the same time and place. In that case, the two counts for
aggravated robbery were based on separate acts of force: (1) the defendant pushed the
first victim's head between his legs and put a gun behind his ear; and (2) the defendant
put a gun to the second victim's chest. Moreover, the property taken belonged separately
to the individual victims. The panel found that the two counts were not multiplicitous,
noting that the defendant used a gun to take property owned by each of the victims with a
separate show of force against each victim. 2018 WL 2460263, at *3.

In our present case, unlike in Shoemake, Phillips did not attempt to take store
property (in Shoemake, cash; in the present case, cell phones) from different employees at
different locations in the store. He waived the gun in the direction of both Amanda and
Ashley and said: "[T]his is not a joke, take me to your back room where the phones are."
This all took place at one time and at one location. It is apparent that he intended to take
AT&T's phones from the storage room.

Unlike in Dale, there were not separate and distinct acts of violence directed at
Amanda and Ashley—just Phillips waiving the gun in their direction. Moreover, unlike in
Dale, there is no evidence to suggest that he expressed the intent to take the private
property of either Amanda or Ashley or store property that was under their individual and
separate custody and control, as opposed to AT&T's property in the back room.

The convictions for attempted aggravated robbery of Amanda and of Ashley are
multiplicitous. They have the effect of punishing Phillips twice for a single criminal act
in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution and Section 10 of the Kansas Constitution Bill of Rights. Accordingly, we
reverse one of Phillips' attempted aggravated robbery convictions.
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Because Phillips' primary crime of conviction is attempted first-degree murder,
there is no need to remand to the district court for resentencing.

Claimed Prosecutorial Error

Phillips claims the prosecutor committed reversible error by making comments in
closing argument that shifted the burden of proof to Phillips. Under State v. Sherman, 305
Kan. 88, 378 P.3d 1060 (2016), we use a two-step process to evaluate claims of
prosecutorial error:

"To determine whether prosecutorial error has occurred, the appellate court must decide
whether the prosecutorial acts complained of fall outside the wide latitude afforded
prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
does not offend the defendant's constitutional right to a fair trial. If error is found, the
appellate court must next determine whether the error prejudiced the defendant's due
process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional
constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if
the State can demonstrate 'beyond a reasonable doubt that the error complained of will
not or did not affect the outcome of the trial in light of the entire record, i.e., where there
is no reasonable possibility that the error contributed to the verdict.' State v. Ward, 292
Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). We continue
to acknowledge that the statutory harmlessness test also applies to prosecutorial error, but
when 'analyzing both constitutional and nonconstitutional error, an appellate court need
only address the higher standard of constitutional error.' [Citation omitted.]" Sherman,
305 Kan. at 109.

Phillips' contention is based on the prosecutor, when discussing the elements of
the crimes, suggesting that "[n]o one is saying otherwise." According to Phillips, the
prosecutor made these remarks to suggest that Phillips had the burden of contesting
elements of the crimes as opposed to the State having the burden of proving them. For
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example, in addressing the charge for criminal damage to property occurring during the
police chase, the prosecutor argued:

"Count 8, these were the five elements. These are the five elements the State has to prove
to you. If you were to look at your instructions they are going to be just about the same.
This act occurred on or about the 11th day of August, 2015, Sedgwick County, Kansas.
Well, no one is telling you it happened any other date, at any other place. . . . Look at
these elements that are left. No one is saying it wasn't the City of Wichita Police
Department vehicle. . . . No one is saying that Mr. Phillips had permission to damage the
vehicle. No one is saying he did it by fire or explosion."

Also, when addressing the charge for fleeing or attempting to elude, the prosecutor
stated: "Again, no one is arguing it happened any other place, any other date. No one is
arguing it wasn't a motor vehicle. No one is saying this wasn't a police vehicle or that the
sirens and lights weren't going off."

The prosecutor did not use this rhetorical device to fill in the gaps created by
missing evidence. The State presented evidence on all these issues: that the events
happened on August 11, 2015, in Sedgwick County, that the police car's sirens and lights
were activated, and so on. The State did not suggest that Phillips had the burden of
proving these elements. At various points the prosecutor reminded the jury that the State
had the burden to prove each of the elements of the various charged crimes. The
prosecutor's remarks were merely fair comment on the evidence by suggesting that these
elements, for which evidence was presented, were not contested.

Besides, any potential error was entirely harmless. They did not affect the outcome
of the trial. See State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied
565 U.S. 1221 (2012). The prosecutor's remarks did not relate to the attempted murder
charges against Phillips, the only charges in dispute. Phillips' sole defense related to the
murder charges. He claimed he did not act with the intent to kill Julie or Officer
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Hampton. In closing argument, he told the jury: "We're here . . . to decide . . . Count 1
and Count 2. Counts 3, 4, 5, 6, 7, 8, [and] 9, I'm guilty. You can watch the interview. It
tells you that." Given this record, Phillips is hardly in a position to claim that he was
prejudiced by the prosecutor's remarks.

Affirmed in part and reversed in part.