IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 78,902
STATE OF KANSAS,
Appellee,
v.
WILLIE SMITH,
JANET JARRELL,
DAVID GAULT,
FREDERICK LOEB,
and ADAM J. GAULT,
Appellants.
SYLLABUS BY THE COURT
1. The sufficiency of the charging document is measured by whether it contains the elements of the offense intended to be charged, sufficiently apprises the defendant of what he or she must be prepared to meet, and is specific enough to make a subsequent plea of double jeopardy possible. The charging document is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or words of the same import.
2. All criminal offenses, except those considered continuing offenses, are committed when every act which is an element of the offense has occurred. Continuing offenses are committed when the course of the prohibited conduct, or the accused's complicity in the crime, has terminated.
3. To prove criminal conspiracy, the State must prove that the conspirators had a mutual understanding or tacit agreement--a meeting of the minds--for the accomplishment of a common purpose. This meeting of the minds may be expressed or implied from the acts of the parties. The single agreement is the prohibited conspiracy, and however diverse its objects, it violates but a single statute.
4. The rule that a more specific statute should prevail over the general statute is merely a rule of interpretation which is used to determine which statute the legislature intended to be applied in a particular case. When there is no conflict between statutes because they govern independent crimes, there is no reason to resort to rules of interpretation to determine which statute governs.
5. Several defendants may be joined together in one trial, even if they are charged in separate complaints, in the following circumstances: (1) when each of the defendants is charged with accountability for each offense included, or (2) when each of the defendants is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy, or (3) when in the absence of a conspiracy it is alleged the several offenses charged were part of a common scheme or were so closely connected in time, place, and occasion that proof of one charge would require proof of the others.
6. The rule for admission of business records, K.S.A. 60-460(m), provides that the trial court determine whether the source of information, method, and time of preparation reflect trustworthiness. The determination of the presence of factors concerning admissibility is within the trial court's discretion.
7. Although a juvenile may stipulate to allegations made against him or her in a motion to waive juvenile jurisdiction, the judge, in making the decision to waive jurisdiction, must take into account the juvenile's stipulation and evidence concerning the eight factors in K.S.A. 38-1636(e).
8. If on appeal, an order authorizing prosecution as an adult is reversed but the finding of guilty is affirmed, the respondent shall be deemed adjudicated to be a juvenile offender. K.S.A. 38-1681(a)(2).
Appeal from Johnson district court; THOMAS H. BORNHOLDT, judge. Opinion filed December 10, 1999. Affirmed in part and reversed in part. The matter of Adam Gault is remanded with directions.
J. Charles Droege, of Overland Park, argued the cause for appellant Willie Smith; Frank P. Gilman, of Overland Park, argued the cause for appellant David Gault; James C. Trickey, of Overland Park, was with them on the brief for appellant Janet Jarrell; and Jonathan Bortnick, of Kansas City, Missouri, was with them on the brief for appellant Frederick Loeb.
Mary Curtis, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant Adam J. Gault.
Richard G. Guinn, assistant district attorney, argued the cause, and Steven J. Obermeier, assistant district attorney, Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LOCKETT, J.: Five defendants tried in a consolidated trial appeal convictions of conspiracy to commit theft by deception, contrary to K.S.A. 21-3701(a)(2) and K.S.A. 21-3302. Defendants claim (1) the complaint was defective for charging a single conspiracy; (2) the district court erroneously failed to sever the trials of individual defendants; (3) there is insufficient evidence to sustain the convictions; (4) the district court erroneously failed to grant a mistrial; (5) cumulative errors require reversal of convictions; (6) the evidence was insufficient to sustain the conviction for making a false writing; (7) the evidence was insufficient to sustain conviction of theft by deception; and (8) a minor tried as an adult claims (a) the trial court erred in denying his motion to grant him a separate trial; and (b) under the circumstances, the court lacked jurisdiction to try him as an adult.
The evidence was that five individuals entered into an agreement to obtain by deception insurance proceeds from various insurance companies over the course of approximately 15 months. The five individuals in varying combinations staged seven separate car collisions and one slip and fall accident to support the fraudulent insurance claims. The eight accidents involved various claims for property damage, wage loss, and medical expenses. In addition, several of the claims included compensation for pain and suffering. A majority of the automobile accidents occurred in parking lots and at slow speeds.
In a number of the auto accidents that formed the basis for the insurance claims, the defendants had applied for auto insurance coverage a few days prior to the accidents. The drivers of the other vehicles were usually backing from a parking space at the time of the alleged accidents. In all the automobile collisions, the only injured parties were the defendants--the occupants of other cars were never injured.
The individuals involved in the conspiracy included David Gault, a former insurance claims adjuster, and Dr. Frederick Loeb, a licensed and practicing chiropractor. In each of the accidents where medical expenses were claimed, Dr. Loeb reported medical expenses sufficient to meet the threshold amounts for the claimants to be eligible to be compensated for pain and suffering. Dr. Loeb was paid for providing chiropractic treatment to the claimants. Regarding the claimants' prior or similar injuries, Dr. Loeb failed to notify the insurance companies he had knowledge of the prior or similar injuries.
The other defendants were Willie Smith and Janet Jarrell, a married couple, who purported to be officers of Smith Industries of Wichita, a roofing company. In various wage loss claims, David Gault and his minor son, Adam Gault, contended that they were employed as roofers by Smith Industries.
To provide evidence of wage loss, a checking account in the name of Smith Industries was opened at the Intrust Bank, Wichita, in April 1994. There was little activity in the account until June 13, 1994, when Janet was added as an authorized signer on the account along with Willie. On that same date, there was a deposit of $1,000 into the account. Two payroll checks were drawn on the account, one for David and one for Adam. Those payroll checks, which all but depleted the account, were used as proof of wages paid to support David's and Adam's wage loss claims over the 15 months.
During a claims investigation, insurance investigators attempted to verify the existence of Smith Industries. The company address was the residence where Willie and Janet lived with their family. The investigators found no Uniform Commercial Code filings, real estate records, mortgage records, tax records, or licensing records to support the existence of an active Smith Industries. The telephone listing for Smith Industries provided a telephone number without an address. When contacted by insurance investigators to obtain the names of contacts or jobs completed by Smith Industries, Willie Smith refused to provide the requested information.
In separate complaints the State charged each of the defendants with conspiracy to commit theft by deception by staging accidents and making false claims for compensation. The State's complaint charged one conspiracy and alleged 12 overt acts by the various defendants in furtherance of the conspiracy. The conspiracy was alleged to have terminated with the final overt act alleged in the complaint. In addition, David Gault was charged with making a false writing in violation of K.S.A. 21-3711.
Prior to trial, the defendants filed motions to dismiss the complaints, contending that the complaint was defective by charging a continuing single offense of conspiracy to commit theft by deception rather than a series of separate conspiracies and was thereby duplicitous and in violation of the Sixth Amendment. In addition, the defendants asserted the complaint was defective because it charged the general crime of theft by deception rather than the specific crime of a fraudulent insurance act, pursuant to K.S.A. 40-2,118. All the defendants' pretrial motions were denied. The cases were consolidated for a jury trial.
On October 10, 1996, each defendant was convicted of the crimes charged. Smith received a 7-month prison sentence, and the remaining defendants received probation sentences of 24 months. David was also sentenced to 24 months' probation on the false writing conviction, to be served consecutive to the conspiracy sentence. All defendants appealed.
COMPLAINT
Conspiracy as a Continuing Offense
The State's complaint alleged that from the 16th of September 1993 through December 1994, Willie, David, Janet, Adam, and Frederick entered into an agreement to commit theft from various insurance companies by staging a series of accidents and making claims against the companies for damages. The complaint claimed that the defendants committed 12 separate acts in furtherance of the conspiracy.
The defendants objected in pretrial motions and at trial, contending that the complaint was jurisdictionally defective for alleging separate acts of theft and charging a single conspiracy. Defendants asserted that each accident and the resulting insurance claims constituted separate crimes of theft by deception, and the statutory crime of theft by deception is not a continuing crime. The defendants also argue that by charging the crime as a continuing offense and trying all the defendants to one jury, they were prejudiced because consolidating the trials allowed the State to present evidence not relevant to each of the defendants and to introduce evidence of acts of other defendants not relevant to all defendants under the coconspirator exception to the hearsay rule. K.S.A. 60-460(i).
The sufficiency of the charging document is measured by whether it contains the elements of the offense intended to be charged, sufficiently apprises the defendant of what he or she must be prepared to meet, and is specific enough to make a subsequent plea of double jeopardy possible. The charging document is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or words of the same import. K.S.A. 22-3201; State v. Micheaux, 242 Kan. 192 197, 747 P.2d 784 (1987).
We note that all criminal offenses, except those considered continuing offenses, are committed when every act which is an element of the offense has occurred. Continuing offenses are committed when the course of the prohibited conduct, or the accused's complicity in the crime, has terminated. State v. Gainer, 227 Kan. 670, Syl. ¶ 1, 608 P.2d 968 (1980).
The defendants erroneously rely on Gainer to support their argument that the complaint is defective for alleging the offense was a continuing crime. Gainer involved the question of whether concealing the property taken in a theft constitutes concealment, thus tolling the statute of limitations.
The Gainer court observed that the continuing offense doctrine arises in statute of limitations questions and has only limited application therein. The Gainer court held that the crime of theft by obtaining or exerting unauthorized control over property with intent to deprive the owner permanently of the possession, use, or benefit of his or her property as proscribed in K.S.A. 21-3701(a) was not a continuing offense. 227 Kan. 670, Syl. ¶ 2; see State v. Martinez, 255 Kan. 464, 472, 874 P.2d 617 (1994); State v. Freitag, 247 Kan. 499, 502, 802 P.2d 502 (1990). Here the defendants are not raising a statute of limitations claim, therefore, the continuing offense doctrine as discussed in Gainer has no application.
The defendants next contend that the complaint was jurisdictionally defective because each accident and the resulting fraudulent insurance claims constituted separate crimes, and under these circumstances, the State must charge separate acts of thefts. This contention fails to recognize that the State did not charge the crime of theft. Rather than charging separate conspiracies or acts of theft, the State charged the crime of conspiracy to commit theft and alleged separate acts of deception that comprised the conspiracy.
We note that conspiracy as defined by K.S.A. 21-3302 consists of two essential elements: (1) an agreement between two or more persons to commit or assist in committing a crime and (2) the commission by one or more of the conspirators of an overt act in furtherance of the object of the conspiracy. State v. Hill, 252 Kan. 637, 641, 847 P.2d 1267 (1993). To prove the defendants entered into a conspiracy, the State must establish that the conspirators had a mutual understanding or tacit agreement--a meeting of the minds--or the accomplishment of a common purpose. This meeting of the minds may be expressed or implied from the acts of the parties. 252 Kan. at 641. Under such circumstances, the agreement is the prohibited conspiracy, and however diverse its objects, it violates but a single statute. State v. Mincey, 265 Kan. 257, 268, 963 P.2d 403 (1998).
In Mincey this court addressed the question of whether Mincey's convictions for both conspiracy to commit first-degree murder and conspiracy to commit aggravated robbery were multiplicitous. The Mincey court determined that a single continuing conspiracy cannot be broken down into component sub-agreements for the purpose of multiple punishments or multiple prosecutions. Where separate conspiracies are alleged and both are founded on a general conspiracy statute, the relevant inquiry is whether there existed more than one agreement to perform an illegal act or acts. 265 Kan. at 268. The Mincey court found that the convictions for the two conspiracies arose from a single agreement to commit two distinct crimes. The conviction for conspiracy to commit aggravated robbery was reversed.
Even more recently, this court in State v. Wilkins, 267 Kan. 355, 985 P.2d 690 (1999), reversed a conviction of conspiracy to commit aggravated robbery. In Wilkins, there was one agreement between Wilkins and another to murder the victim and take his necklace as proof of the killing. The killing of the victim formed the basis for a first-degree murder charge, and the taking of the necklace was the basis for an aggravated robbery charge. Wilkins was convicted of conspiracy to commit murder and a separate conspiracy to commit aggravated robbery. Wilkins appealed, claiming there was a single conspiracy. The Wilkins court agreed and held that the single conspiracy could not be broken down into component sub-agreements for the purpose of multiple prosecutions or punishments. 267 Kan. 355, Syl. ¶ 6.
The State's theory was that the different crimes of theft committed by the defendants were the result of an agreement to commit a series of crimes to obtain money by deception. Although the acts alleged in the complaint involved multiple transactions and deceptions by the various defendants spanning a period of time and overlapping facts, there was only one agreement between the defendants to cooperate in fraudulently collecting insurance claims. For instance, each accident involved one or more of a core group of conspirators and some of the successful claims included a false statement for medical treatment provided by Dr. Loeb and/or wage losses verified by Smith Industries.
The evidence was sufficient for the jury to conclude that the medical treatment and wage loss claims were central to the agreement and that the individual defendants conspired to play their parts in pursuing such claims. The complaint is consistent with the State's theory, and the complaint is not defective for failing to charge individual theft crimes in addition to or instead of the crime of conspiracy to commit theft by deception.
Duplicity
At the instructions conference, the defendants objected to the instruction stating the elements of conspiracy to commit theft. The defendants' objection was a restatement of their arguments regarding the deficiency of the complaint. The defendants also contend that the complaint was duplicitous, allowing the jury to convict the defendants without a unanimous agreement to any of the separate offenses alleged. For instance, the attorney for Dr. Loeb asserted the instruction "is confusing with respect to my client on exactly what [in the complaint] he is accused of doing that constitutes the stealing by deceit."
We note that duplicity is the joining in a single count of a complaint of two or more distinct and separate offenses. Duplicitous charging confuses the defendant as to how he or she must prepare a defense and confuses the jury. State v. Anthony, 257 Kan. 1003, Syl. ¶ 9, 898 P.2d 1109 (1995).
The defendants mischaracterize the issue as duplicity. The defendants' issue is more appropriately characterized as an objection to the jury instructions and verdict form for failing to state a unanimity requirement as to the specific act or acts the jury relied upon to convict the defendants of conspiracy.
Here, the State did not charge more than one offense in a single count; rather, the complaint and the jury instructions stated that the defendants may be found guilty of a conspiracy if the jury found that the defendants intentionally entered into an agreement to commit theft by deception and then alleged several acts in furtherance of that agreement were committed. The jury instructions further informed the jury that proof of only one of the alleged acts was sufficient for a conviction. There was no specific unanimity instruction as to which act the jury relied upon for the conviction; however, the instructions did provide a general unanimity requirement that the jury's agreement upon the verdict must be unanimous.
In multiple acts cases, where several acts are alleged and any one of them could constitute the crime charged, the jury must be unanimous as to which act or acts constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of the jurors must agree that the same underlying criminal act has been proved without a reasonable doubt. State v. Carr, 265 Kan. 608, 618, 963 P.2d 421 (1998) (quoting State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 [1994]).
Although K.S.A. 22-3421 requires a unanimous verdict, it is sufficient for the jury to find only one of the alleged overt acts in furtherance of the conspiracy to convict each defendant. Where, as in this case, the jury is given a list of acts from which to find proof of one act, a danger could exist that the jury was not unanimous as to the act or acts it relied upon for the conviction. We noted that the jurors were polled by the district judge after rendering their verdict. Each juror affirmed the verdict of guilty as to the alleged acts in furtherance of the conspiracy to commit theft. Therefore, we find no error.
Specific Statute
The defendants next assert that the complaint was defective because the State charged the general crime of theft by deception rather than the specific crime of commission of a fraudulent insurance act, pursuant to K.S.A. 1998 Supp. 40-2,118. The State first argues that this court should refuse to consider the issue because the defendants failed to raise the issue to the trial court.
In Carmichael v. State, 255 Kan. 10, 872 P.2d 240 (1994), the defendants raised, for the first time on appeal, a challenge to his rape convictions by asserting the more specific offense of aggravated incest should have been charged. The Carmichael court noted that a sentence which does not conform to the statutory provisions, either in character or the term of punishment authorized, is an illegal sentence and evaluated the issue, despite the fact that it had not been raised in the district court. 255 Kan. at 16.
The defendants' argument here is that conspiracy to commit theft by deception is the general crime and conspiracy to commit a fraudulent insurance act is a more specific crime that is alleged to have occurred. Usually, when there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless it appears that the legislature intended to make the general act controlling. State v. Fritz, 261 Kan. 294, Syl. ¶ 1, 933 P.2d 126 (1997).
In Carmichael, the question was whether, when a defendant is related to the victim of a sex crime, aggravated incest, a specific crime, should be charged rather than rape, a general crime. The Carmichael court found that even though the crimes of aggravated incest and rape contain different elements, when the prohibited relationship exists, aggravated incest is the specific offense and must be charged, rather than the general offense of rape.
The rule that a more specific statute should prevail over the general statute is merely a rule of interpretation which is used to determine which statute the legislature intended to be applied in a particular case. State v. Hill, 16 Kan. App. 2d 280, Syl. ¶ 1, 823 P.2d 201 (1991), rev. denied 250 Kan. 806 (1992). As pertinent to this case, a fraudulent insurance act, defined by K.S.A. 1998 Supp. 40-2,118(a), is an act committed by any person who, knowingly and with intent to defraud, presents, causes to be presented or prepares with knowledge or belief that it will be presented to or by an insurer, any written statement or claim for payment containing any materially false information. Theft by deception is obtaining by deception control over the property of another. K.S.A. 21-3701(a)(2).
The State asserts that we are not required to answer the question because it was precluded from charging a fraudulent insurance act due to the fact that K.S.A. 1994 Supp. 40-2,118 was not effective until July 1, 1994, and the acts alleged in the conspiracy, specifically, all written claims presented to insurance companies, occurred prior to the effective date of the statute. The State argues that under these circumstances, charging a fraudulent act would have resulted in an ex post facto violation.
An ex post facto violation occurs when a new law is retroactively applied to events that occurred before its enactment and the new law disadvantages the offender affected by it. State v. LaMunyon, 259 Kan. 54, 65, 911 P.2d 151 (1996). All criminal offenses, except those considered continuing offenses, are committed when every act which is an element of the offense has occurred. State v. Cox, 258 Kan. 557, 579-80, 908 P.2d 603 (1995).
The State is correct in its assertion that it was precluded from charging conspiracy to commit a fraudulent insurance act because to prove the crime, it would have had to prove that the defendants submitted the written claims to the insurance companies prior to the effective date of the statute. In this case, even though the final overt act alleged in the complaint occurred after the effective date of the statute, all written claims presented to insurance companies occurred prior to the effective date of the statute. Therefore, the State was precluded from charging conspiracy to commit a fraudulent insurance act.
FAILURE TO SEVER TRIALS
Each defendant was originally charged in a separate complaint. The cases were later consolidated for trial. Prior to trial, each of the defendants moved to sever their case for trial. Each defendant argued that his or her ability to call the other defendants as witnesses was frustrated by the right of the codefendants to refuse to testify as a witness; therefore, they did not receive a fair trial in a consolidated trial. The district judge noted that the defendants had not advanced antagonistic defenses and observed that any potential prejudice caused by consolidation would be cured by an appropriate limiting instruction. Based on this reasoning, the district judge found that the defendants had failed to make an adequate showing for severance and denied the motion for severance.
It is permissible for several defendants to be joined together in one trial, when charged in separate complaints, if:
"'(1) when each of the defendants is charged with accountability for each offense included, or (2) when each of the defendants is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy, or (3) when in the absence of a conspiracy it is alleged the several offenses charged were part of a common scheme or were so closely connected in time, place and occasion that proof of one charge would require proof of the others.'" State v. Aikins, 261 Kan. 346, 359, 932 P.2d 408 (1997) (quoting State v. Tate, 228 Kan. 752, 754, 620 P.2d 326 [1980]).
The determination of whether defendants charged separately may be tried together is in the trial court's discretion. Therefore, the trial court's decision is reviewed by an abuse of discretion standard. 261 Kan. at 359.
Each defendant was charged with a single conspiracy, i.e., an agreement by each defendant to commit theft by deception by staging accidents and making false claims against insurance companies for compensation. Under such circumstances, the defendants could originally have been charged in a single complaint; therefore, the requirements for joinder were satisfied.
Even if the requirements of joinder are satisfied, the court cannot join the defendants for trial if the defendants are prejudiced by the joinder. Although a single trial may be desirable from the standpoint of economical and efficient criminal procedure, the right of a defendant to a fair trial must be the overriding consideration. 261 Kan. at 360. The usual grounds to show prejudice to a fair trial so that severance will be granted are:
"'(1) the defendants have antagonistic defenses; (2) important evidence in favor of one of the defendants which would be admissible in a separate trial would not be allowed in a joint trial; (3) evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) a confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants.'" 261 Kan. at 360 (quoting State v. Pham, 234 Kan. 649, Syl. ¶ 2, 675 P.2d 848 [1984]).
The defendants argue that they were prejudiced by the joinder. They identify specific evidence that they were precluded from offering by joinder:
1. Dr. Loeb could have been called by the other defendants regarding his diagnosis and treatment of their injuries as well as the customary charges for treatment of the injuries.
2. Dr. Loeb could have offered expert testimony to establish the causal link between the accidents and the injuries sustained by the defendants arising from the accidents.
3. In a separate trial, each of the other defendants could have been called to testify as to the facts of each accident, the damages, and injuries sustained, and to rebut and/or resolve conflicts in the testimony of witnesses called by the State.
4. Dr. Loeb could have called the other defendants to testify that he did provide treatment for actual injuries.
5. Defendants associated with Smith Industries could have been called by other defendants to testify that Smith Industries was a roofing subcontractor that employed and paid Willie Smith, Charles Smith, Janet Jarrell, David Gault and Adam Gault.
6. The other defendants would have testified there was no agreement to stage accidents and/or submit fraudulent insurance claims.
At the conclusion of trial, the defendants proffered to the trial judge that, had the case been severed, they would have been able to offer the stated evidence in their defense. In addition, the defendants point out that no health care expert testified that the defendants were not actually injured in the accident or that the defendants had exaggerated their injuries, and, in most of the accidents, the insurance companies had investigated the facts of the accidents, found that defendants were not at fault, had been injured, and approved compensation paid the defendants.
First, we note that the Fifth Amendment privilege "'can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory [citation omitted], and it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.'" State v. Lekas, 201 Kan. 579, 589, 442 P.2d 11 (1968) (quoting Murphy v. Waterfront Comm'n., 378 U.S. 52, 94, 12 L. Ed. 2d 678, 84 S. Ct. 1594 [1964], [White, J., concurring]). The Fifth Amendment privilege against self-incrimination extends until there is a final judgment in a