No. 93,084
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
NICHOLAS MOODY,
Appellant.
SYLLABUS BY THE COURT
1. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
2. A person who intentionally aids and abets another in the commission of a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of a defendant's participation, if any, in the actual commission of the crime. Intent may be inferred from circumstantial evidence. A person who aids and abets in the commission of a crime may be charged and convicted as a principal.
3. Specific intent may be shown by acts, circumstances, and inferences reasonably deducible therefrom and need not be established by direct proof.
4. The crime of conspiracy contains two essential elements: (1) an agreement between two or more persons to commit or to assist in committing a crime and (2) an overt act in furtherance of the conspiracy committed by one or more of the conspirators.
5. To establish a conspiracy it is not necessary that there be any formal agreement manifested by formal words, written or spoken; it is enough if the parties tacitly come to an understanding in regard to an unlawful purpose and this may be inferred from sufficiently significant circumstances. Further, while an agreement is a necessary element of a conspiracy, the existence of the agreement does not need to be proved directly but may be inferred from other facts proved.
6. A claim alleging ineffective assistance of counsel presents mixed questions of fact and law.
7. Before counsel's assistance is determined to be so defective as to require reversal of a conviction, a defendant must establish two things: First, the defendant must establish that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel's performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial.
8. Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel must be highly deferential. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. To show prejudice, a defendant must show a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.
9. The burden is on an appellant to furnish a record which affirmatively shows that prejudicial error occurred in the trial court. Without such a record, an appellate court presumes the action of the trial court was proper.
10. A defendant possesses the burden to establish that his or her counsel's representation was ineffective. Mere conclusory statements are insufficient to satisfy this burden.
11. An issue not briefed by an appellant is deemed waived or abandoned.
12. K.S.A. 60-460(i)(2) allows hearsay evidence where a statement was made while a defendant and a declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination. The coconspirator exception is a firmly rooted hearsay exception.
13. Before a coconspirator's statement may be admitted into evidence, five elements must be established: (1) the person testifying must be a third party; (2) the out-of-court statement about which the person will testify must have been made by one of the coconspirators; (3) the statement of the coconspirator must have been outside the presence of the accused; (4) the statement of the coconspirator must have been made while the conspiracy was in progress; and (5) the statement must be relevant to the plan or its subject matter.
14. Hearsay statements made during an attempt to conceal a crime are admissible under K.S.A. 60-460(i)(2). Moreover, the acts and declarations of one conspirator in the prosecution of the crime or its concealment in the foregoing respects are considered the acts and declarations of all and are evidence against all coconspirators.
15. The decision whether to call a certain witness is a matter of trial strategy. A defendant bears the burden of establishing that his or her counsel's alleged deficiencies were not the result of strategy.
16. The basis for the admission of expert testimony is necessity arising out of the particular circumstances of the case. To be admissible, expert testimony must be helpful to the jury. Where the normal experience and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are inadmissible. An expert's opinion, under K.S.A. 60-456, is admissible up to the point where an expression of opinion would require him or her to pass upon the credibility of witnesses or the weight of disputed evidence.
17. 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 to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.
18. Whether convictions are multiplicitous is a question of law subject to unlimited review. A claim of multiplicity may be raised for the first time on appeal when necessary to serve the ends of justice and prevent a denial of fundamental rights.
19. In determining when charges in a complaint or an information are multiplicitous, the strict elements test must be used.
20. Under the strict elements test, if each charge requires proof of an element not necessary to prove the other charge, the charges, even if they stem from a single act, are not multiplicitous.
Appeal from Seward District Court; T. KEITH WILSON and NELS P. NOEL, judges. Opinion filed April 28, 2006. Affirmed.
Steven D. Rosel, of Topeka, for appellant.
Don L. Scott, county attorney, and Phill Kline, attorney general, for appellee.
Before MALONE, P.J., GREEN and BUSER, JJ.
GREEN, J.: After a jury trial, Nicholas Moody was convicted of attempted first-degree murder, conspiracy to commit first-degree murder, aggravated intimidation of a witness, and conspiracy to commit aggravated intimidation of a witness. The court sentenced Moody to 155 months' imprisonment for attempted first-degree murder. It also sentenced Moody to concurrent sentences of 117 months for conspiracy to commit first-degree murder, 18 months for aggravated intimidation of a witness, and 8 months for conspiracy to commit aggravated intimidation of a witness. Moody timely appealed.
While on appeal, Moody moved this court to remand his case to the district court for a hearing regarding ineffective assistance of trial counsel. Moody alleged that his trial counsel was ineffective because he failed to: (1) present a video taped statement of Travis Kohn, a State witness, to impeach the witness; (2) object to hearsay evidence presented by Gary Woodard's trial testimony; (3) interview or subpoena Isaac Rodriguez who could have testified on Moody's behalf; and (4) call an expert witness to testify about the effects of drug abuse on memory recall. In January 2005, this court remanded Moody's case to the district court under State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), for a determination regarding his claims of ineffective assistance of trial counsel.
Following an evidentiary hearing, the district court held that Moody's trial counsel was effective and denied Moody's request for a new trial. The central issue on appeal is whether the evidence was sufficient to sustain Moody's convictions. We determine that the evidence was sufficient for a factfinder to conclude that Moody was guilty beyond a reasonable doubt of the charges. In addition, Moody contends that the trial court abused its discretion in determining that Moody's trial counsel was effective. We disagree. Moody further asserts that his convictions for conspiracy to commit first-degree murder and conspiracy to commit aggravated intimidation of a witness were multiplicitous. We disagree. Finally, Moody maintains that his convictions for attempted first-degree murder and aggravated intimidation of a witness were multiplicitous. We disagree. Accordingly, we affirm.
I. Was the Evidence Sufficient to Support Moody's Convictions?
Moody asserts that the trial evidence was insufficient to support his convictions. Moody presumably argues that the evidence was insufficient to support all of his convictions as he has failed to specify any single conviction. The State argues that the evidence was clearly sufficient to show Moody acted knowingly and intentionally but does not discuss the evidence supporting the convictions.
"'When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.' [Citation omitted.]" State v. Calvin, 279 Kan. 193, 198, 105 P.3d 710 (2005).
A conviction may be sustained only upon evidence where every element of a crime is proven beyond a reasonable doubt. State v. Star, 27 Kan. App. 2d 930, 934, 10 P.3d 37, rev. denied 270 Kan. 903 (2000). A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Holmes, 278 Kan. 603, 632, 102 P.3d 406 (2004).
Moody essentially challenges the credibility of certain witnesses. He simply contends that the admitted drug usage and resulting memory difficulties of "key witnesses" raises questions as to the sufficiency of the evidence. Nevertheless, questions of credibility are solely the province of the jury. See State v. Bledsoe, 272 Kan. 1350, 1359, 39 P.3d 38 (2002). In reviewing the evidence for sufficiency, an appellate court cannot weigh the evidence or pass on the credibility of witnesses. State v. Mays, 277 Kan. 359, 363, 85 P.3d 1208 (2004). Thus, we decline Moody's invitation to reweigh the evidence or reassess the credibility of witnesses.
The evidence presented at trial was sufficient for a rational factfinder to have found Moody guilty beyond a reasonable doubt. The evidence established that on October 18, 2002, Kohn, Josh Talbert, and Woodard traveled from Colorado Springs, Colorado, to Ulysses, Kansas, to visit Talbert's friend, Rodriguez.
According to Kohn, before they left Colorado, Talbert mentioned that Rodriguez wanted someone to kill Eric Pike. Therefore, Kohn decided to take two guns with him to Ulysses. Kohn stated that on October 19, 2002, Rodriguez asked him to kill Pike. Rodriguez and Kohn were alone when this conversation occurred. Kohn testified that Rodriguez wanted Pike killed because Pike was scheduled to testify against Rodriguez at a trial on charges of armed robbery. After Kohn agreed to kill Pike, Rodriguez took Kohn to Moody's house in Ulysses.
Kohn testified that Moody drove him to Liberal three times with the intent to kill Pike. Moody and Kohn were the only individuals involved in the plan who made the trips to Liberal. Kohn and Woodard testified that Moody drove Kohn to Liberal knowing that Kohn planned to kill Pike. Kohn testified that he got scared on the first two trips to Liberal and did not go through with the crime. On the way back to Ulysses after the first trip to Pike's house, Moody and Kohn discussed where Kohn could meet Moody after Kohn killed Pike. According to Kohn, Moody called Rodriguez on both return trips from Liberal. After the second trip to Liberal, Moody and Kohn returned to Moody's house. There, Rodriguez beat Kohn and told him that he would kill Kohn's girlfriend and Kohn's parents if Kohn did not kill Pike.
On October 21, 2002, Moody again drove Kohn to Pike's residence in Liberal. Rodriguez warned Kohn that Moody would be armed and would shoot him if he acted nervous. Moody kept his hand on a revolver in his lap the entire trip to Liberal. Kohn stated that he believed that Moody would shoot him if he did not kill Pike. When they got to Liberal, Moody told Kohn to load the gun stashed in the glove compartment and told Kohn that "after [he] did it, just run down that direction like hell and [Moody] would be there waiting." Moody dropped Kohn off at Pike's house. Kohn's attempt to kill Pike, however, was unsuccessful. Kohn knocked on Pike's door and pointed a gun at Pike's head when he opened the door. Kohn, however, stated that he had stuffed debris in the gun so it would misfire, but also denied ever pulling the trigger. After this, Kohn ran to meet Moody, but he was gone. Kohn was later arrested.
Woodard testified that at some point during the weekend, Rodriguez told him that Moody had called and told him that there were so many police officers around Pike's house that Kohn could not "get to him." He also testified that on October 21, Rodriguez had told him that Moody had driven Kohn to Liberal so Kohn could kill Pike. Woodard stated that later that night, Moody showed up at Rodriguez' house "freaking out" because he had left Kohn in Liberal. According to Woodard, Moody said he heard two gunshots, saw two police cars, got scared, and then drove off and left Kohn. Moody's girlfriend, Ashley Colbert, testified that Moody called her the night of the incident and told her to go to his mother's house because something bad was likely to happen.
Pike testified that Kohn attempted to fire the gun, but it malfunctioned. The police officer who found Kohn's gun also testified that one of the rounds in the gun had an indentation off to one side but near the primer, indicating a misfire. Police Officer Delton Brown, who interviewed Moody after his arrest, testified that although Moody admitted driving Kohn to Liberal, Moody stated that he had not known Kohn's reason for going to Liberal.
Kohn admitted that he, Talbert, and Woodard had used a lot of drugs during the days preceding the attempted murder. Kohn stated that he had been high frequently on drugs over a period of 8 months before the incident. Kohn conceded that this drug usage had affected his long-term memory and his methamphetamine usage had definitely affected his memory. Woodard also admitted that he had been up for 7 days straight while using drugs before October 21.
Moody testified that Rodriguez had asked him to take Kohn to Liberal to pick up a car loaded with marijuana. Moody stated that he took Kohn to Liberal once on Saturday, but Rodriguez called on the way there and stated that the car was not ready. On October 21, Rodriguez told Moody that the car was ready. Hence, Moody drove Kohn to Liberal, dropped him off, and drove back to Ulysses.
To prove that Moody had committed the crime of attempted first-degree murder, the State was required to prove (1) that Moody performed an overt act toward the commission of first-degree murder–an intentional and premeditated killing; (2) that he did so with the intent to commit first-degree murder; (3) that Moody failed to complete the commission of this crime; and (4) that this act occurred on or about October 21, 2002, in Seward County, Kansas. See K.S.A. 21-3301; K.S.A. 21-3401; PIK Crim. 3d 55.01; PIK Crim. 3d 56.01.
A person who intentionally aids and abets another in the commission of a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime. K.S.A. 21-3205(1); State v. Dunn, 243 Kan. 414, 431, 758 P.2d 718 (1988). Intent may be inferred from circumstantial evidence. 243 Kan. at 431. A person who aids and abets in the commission of a crime may be charged and convicted as a principal. State v. Smolin, 221 Kan. 149, 152, 557 P.2d 1241 (1976).
A review of the record reveals sufficient evidence existed to show that Moody knew why he was taking Kohn to Liberal and that Moody aided Kohn in his attempt to kill Pike. The evidence showed that Moody made the overt act of driving Kohn to Liberal with the intent for Kohn to kill Pike. Although Moody maintains that he did not know this was why Kohn wanted to go to Liberal, Kohn and Woodard's testimony established that Moody assisted in Kohn's attempt to kill Pike. The evidence further established that Kohn took the overt act of firing the gun at Pike.
To establish that Moody had committed the crime of conspiracy to commit first-degree murder, the State was required to prove (1) that Moody agreed with others to assist in the commission of the crime of first-degree murder; (2) that he agreed with the intent that the crime be committed; (3) that Moody or any party to the agreement acted in furtherance of the agreement; and (4) that this act occurred on or about October 21, 2000, in Seward County, Kansas. See K.S.A. 21-3302; PIK Crim. 3d 55.03. The evidence demonstrated that Moody agreed to assist in the killing of Pike. Moody acted in furtherance of the agreement by driving Kohn to Pike's house.
Finally, to prove that Moody had committed the crime of aggravated intimidation of a witness, the State had to prove (1) that Moody prevented or dissuaded or attempted to prevent or dissuade Pike from giving testimony at a trial; (2) that the act was accompanied by an expressed or implied threat of force or violence against Pike or done in furtherance of such a conspiracy; (3) that Moody did so knowingly and maliciously; and (4) that this act occurred on or about October 21, 2002, in Seward County, Kansas. See K.S.A. 21-3833; PIK Crim. 3d 60.06-B. Maliciously means done with an intent to harm or injure another person or with an intent to thwart or interfere in any manner with the administration of justice. PIK Crim. 3d 60.06-B. Likewise, to establish that Moody had committed conspiracy to commit aggravated intimidation of a witness, the State was required to prove the elements of conspiracy with regards to the commission of aggravated intimidation of a witness. See K.S.A. 21-3302; K.S.A. 21-3833.
Here, the evidence established that Moody drove Kohn to Pike's house with the intent to kill Pike. Kohn's testimony showed that Kohn was attempting to kill Pike at Rodriguez' request to keep him from testifying at Rodriguez' trial. Although there was no testimony clearly establishing that Moody was acting to prevent Pike from testifying, "[s]pecific intent may be shown, however, by 'acts, circumstances and inferences reasonably deducible therefrom and need not be established by direct proof.' [Citation omitted.]" State v. Johnson, 258 Kan. 61, 67, 899 P.2d 1050 (1995). Hence, a rational factfinder could have inferred that Moody had acted with the intent to prevent Pike from testifying at Rodriguez' trial. The evidence showed that Moody knowingly and intentionally aided Kohn in Kohn's attempt to kill Pike in order to prevent Pike from testifying.
Finally, the crime of conspiracy contains two essential elements: "(1) an agreement between two or more persons to commit or to assist in committing a crime and (2) an overt act in furtherance of the conspiracy committed by one or more of the conspirators." State v. Daugherty, 221 Kan. 612, 619, 562 P.2d 42 (1977).
"'To establish a conspiracy it is not necessary that there be any formal agreement manifested by formal words, written or spoken; it is enough if the parties tacitly come to an understanding in regard to the unlawful purpose and this may be inferred from sufficiently significant circumstances.' [Citation omitted.]
"Further, 'while an agreement is a necessary element of a conspiracy, the existence of the agreement does not need to be proved directly but may be inferred from other facts proved.' [Citation omitted.]" State v. Hernandez, 24 Kan. App. 2d 285, 291, 944 P.2d 188, rev. denied 263 Kan. 888 (1997).
Again, although there was no direct evidence establishing an agreement on Moody's behalf to prevent Pike from testifying, a rational factfinder could have inferred that Moody had agreed to assist in the killing of Pike to prevent him from testifying at Rodriguez' trial. Again, Moody acted in furtherance of the agreement by driving Kohn to Pike's residence.
In summary, after review of all the evidence, when viewed in the light most favorable to the State, the evidence was sufficient for a rational factfinder to have found Moody guilty of all charges beyond a reasonable doubt.
II. Did the Trial Court Err in Determining Moody's Trial Counsel was Effective?
Moody next contends that the trial court erred in finding that he received effective assistance of trial counsel. A claim alleging ineffective assistance of counsel presents mixed questions of fact and law. We must determine whether the trial court's findings of fact have substantial support in the evidence and whether the trial court's conclusions of law follow as a matter of law from those facts. State v. Davis, 277 Kan. 309, 315, 85 P.3d 1164 (2004).
In a case involving an issue of ineffective assistance of counsel, the Davis court explained the hurdles that a defendant must clear:
"'Before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel's performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial.'" 277 Kan. at 314 (quoting State v. Orr, 262 Kan. 312, Syl. ¶ 1, 940 P.2d 42 [1997]).
Moreover, as our Supreme Court has observed, a strong presumption exists that counsel's conduct comes within the scope of reasonable professional assistance:
"Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel must be highly deferential. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. [Citation omitted.] To show prejudice, the defendant must show a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. [Citation omitted.]" State v. Betts, 272 Kan. 369, 387-88, 33 P.3d 575 (2001).
With these standards firmly in mind, we turn now to the merits of this issue.
A. Failure to Submit the Video of Kohn's Interview
Moody contends that his trial counsel, Greg Swanson, was ineffective for failing to impeach Kohn's trial testimony with a previously videotaped statement Kohn furnished Detective Mease.
At trial, Kohn testified that after he pulled the gun on Pike, he ran away, then stuffed the gun in a mailbox to hide it. On cross-examination, defense counsel elicited that Kohn had originally told the police that putting the gun in the mailbox was part of the plan. Nevertheless, Kohn admitted that that statement had been a lie because he had not previously planned to put the gun in a mailbox. Swanson further elicited on cross-examination that Kohn had varied his story to the police about payment amounts that Rodriguez had offered Kohn to kill Pike and the reasons why he had attempted to kill Pike.
The district court found that Moody had failed to describe any material inconsistencies in the video. Moreover, the district court noted that Moody had failed to introduce the video at the evidentiary hearing. Without this evidence, the court determined it could not speculate that counsel was ineffective for not presenting the video or calling Mease at the trial. The district court also stated that a review of the trial transcript revealed that Swanson had elicited two inconsistencies in Kohn's testimony during cross-examination.
Likewise, Moody has not presented this court with the video of Kohn's interview. Moreover, Moody has failed to furnish this court with any information as to what the video or Mease's testimony would have revealed beyond the inconsistencies Swanson had elicited during Kohn's cross-examination. The burden is on an appellant to furnish a record which affirmatively shows that prejudicial error occurred in the trial court. Without such a record, an appellate court presumes the action of the trial court was proper. Holmes, 278 Kan. at 612.
Moody possesses the burden to establish that Swanson's representation was ineffective. See Davis, 277 Kan. at 314. Mere conclusory statements are insufficient to satisfy this burden. State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994). The record reveals that Swanson effectively cross-examined Kohn, revealing inconsistencies in his statements to police officers and that he lied to police officers. Moody has failed to show that Swanson's performance was deficient for failing to present the video or to call Mease to testify at trial.
B. Failure to Object to Hearsay Testimony
Moody argues that Swanson was ineffective because he failed to object to hearsay evidence admitted during Woodard's testimony.
As a preliminary matter, Moody contends that "numerous" instances existed where hearsay was admitted at his trial. Nevertheless, Moody only argues that Swanson was ineffective for failing to object to one specific segment of testimony. An issue not briefed by an appellant is deemed waived or abandoned. Holmes, 278 Kan. at 622. We decline Moody's invitation to search the trial transcript for his trial counsel's other alleged failures to object to hearsay testimony.
In his motion for remand, Moody contended that there were several times when Swanson should have objected to hearsay evidence. Nevertheless, Moody only specified Swanson's failure to object to Woodard's testimony regarding Rodriguez' statement. The district court found no error in Swanson's failure to object to hearsay evidence at trial. The district court determined that Woodard's testimony regarding statements made by Rodriguez was admissible as a statement of a coconspirator under K.S.A. 60-460(i)(2). The district court also held that Woodard's testimony regarding statements Rodriguez claimed Moody made was admissible as multiple hearsay under K.S.A. 60-463 and also met the exception to hearsay under K.S.A. 60-460(g) and K.S.A. 60-460(i)(2). The court finally determined that Woodard's testimony about statements made by Talbert was admissible under K.S.A. 60-460(a) because Talbert testified at the trial and was available for cross-examination. The court further found that all of the other hearsay statements referring to the overall plan to kill Pike were admissible under the coconspirator exception to the hearsay rule.
On appeal, Moody contends that Swanson was ineffective because he failed to object to Woodard's testimony that Rodriguez had implicated Moody as a participant in the plan to kill Pike. At trial, Woodard testified that on the night of the incident, Rodriguez explained to him that Moody had driven Kohn to the crime scene. Woodard further testified that Rodriguez told him that Moody had freaked "out because he ended up leaving [Kohn] in Liberal." According to Woodard, Rodriguez stated that Moody told him that he had heard two gunshots and saw police cars quickly proceeding in the direction of the victim's residence. This scared Moody and caused him to flee the scene. Swanson objected to this testimony on the grounds that it was nonresponsive to the question. The district court sustained the objection.
Swanson testified at the evidentiary hearing that he knew before trial that a large amount of hearsay testimony would be admissible under the coconspirator exception. He maintained that he and Moody had discussed not objecting to this hearsay evidence as part of their trial strategy, allowing Moody to give hearsay testimony regarding what Rodriguez had told him. Moody admitted at the hearing to having this discussion with Swanson.
K.S.A. 60-460(i)(2) allows hearsay evidence where the statement was made while "the [defendant] and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination." The coconspirator exception is a firmly rooted hearsay exception. See State v. Swafford, 257 Kan. 1023, 1040, 897 P.2d 1027 (1995), modified on other grounds 257 Kan. 1099, 913 P.2d 196 (1996). Our Supreme Court has established five prerequisites to the proper admission of a coconspirator statement:
"(1) the person testifying must be a third party; (2) the out-of-court statement about which the person will testify must have been made by one of the coconspirators; (3) the statement of the coconspirator must have been outside the presence of the accused; (4) the statement of the coconspirator must have been made while the conspiracy was in progress; and (5) the statement must be relevant to the plan or its subject matter." State v. Bird, 238 Kan. 160, 176, 708 P.2d 946 (1985).
Moody maintains that Woodard's testimony was inadmissible under K.S.A. 60-460(i)(2) because it was made after the completion of the alleged conspiracy.
Our Supreme Court, however, has determined that hearsay statements made during an attempt to conceal a crime are admissible under K.S.A. 60-460(i)(2). See State v. Flynn, 274 Kan. 473, 509-10, 55 P.3d 324 (2002). In Flynn, the defendant argued that the trial c