State v. Dale

NOT DESIGNATED FOR PUBLICATION
No. 117,162
IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,
v.
CHRISTOPHER MICHAEL DALE,
Appellant.



MEMORANDUM OPINION


Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed June 1,

2018. Affirmed in part, reversed in part, and vacated in part.



Peter Maharry, of Kansas Appellate Defender Office, for appellant.



Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek

Schmidt, attorney general, for appellee.



Before MCANANY, P.J., LEBEN and SCHROEDER, JJ.



LEBEN, J.: Christopher Dale appeals his convictions for aggravated robbery,
charges that arose after he used a BB gun to take three cell phones and an iPod from three
teenage boys at a skate park. Dale was convicted of two counts of aggravated robbery and
one count of theft (one of the boys was off skating and thus wasn't threatened by the BB
gun when Dale took that boy's cell phone). Dale argues that all of this was really just a
single crime, so (1) he can't be convicted of both theft and aggravated robbery and (2) he
can't be convicted of two counts of aggravated robbery. He argues that he should be
convicted only of a single count of theft.
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Dale based his arguments on the Double Jeopardy Clause of the Fifth Amendment
to the United States Constitution. It protects against receiving multiple punishments for
the same offense, something we call multiplicity.


Before returning to the legal arguments, we will briefly outline what happened
back in 2009 when the underlying criminal conduct took place. Three teenage boys—
Adam Litchkowsi, Austin Mora, and Kyle Shellack—were at a skating park in Olathe.
They had their electronics in a pile beside them on the ground while they sat and talked.


At some point, an unfamiliar teen, Drake Rickerson, approached and offered to
sell them an iPod. Austin left to skate, but Adam and Kyle made fun of Drake.


Drake left and called his cousin, Megan Clark, hoping she could come to pick him
up. But her boyfriend, Christopher Dale, picked up the phone instead. Christopher was in
his early 20s at the time. When Drake told Christopher what had happened, Christopher
became angry. He grabbed a BB gun and headed to the park along with Megan. She
parked the car near the park and stayed with it while Christopher walked off to find
Drake.


Eventually, Christopher and Drake ran up to confront Adam and Kyle. Austin was
still off skateboarding, 20 to 30 feet away. Christopher pushed Adam's head between his
legs and put the gun behind Adam's ear. While Christopher held Adam's head down, Kyle
tried to get up to help—but Christopher then put the gun to Kyle's chest. Kyle looked
over and saw Drake taking the electronics. Christopher then hit Kyle in the side of his
head with the gun.


When Christopher let go of Adam, Adam looked up and saw the two running off
with the electronics. Adam said he heard Christopher say, "You just got jacked." Adam
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got up to try to get the items back but backed off when Christopher flashed the gun at
him. Christopher and Drake got away with each boy's cell phone and Adam's iPod.


Police solved the crime and arrested Christopher and Drake. Police found the
stolen electronics and the BB gun in the home where Christopher, Drake, and Megan
were all staying.


The State charged Christopher Dale with the aggravated robbery of Adam's cell
phone and iPod, the aggravated robbery of Kyle's cell phone, and the theft of Austin's cell
phone. Drake entered into a plea agreement with the State and testified against Dale at his
trial. A jury convicted Dale on all three counts.


Dale then appealed to our court, and we found that the jury instructions on the
aggravated-robbery charges had been misleading. So we set aside the aggravated-robbery
convictions—but not the theft conviction—and sent the case back for a new trial on the
aggravated-robbery charges. See State v. Dale, No. 110,562, 2016 WL 687600 (Kan.
App. 2016) (unpublished opinion); State v. Dale, No. 110,562, 2015 WL 2414264 (Kan.
App. 2015) (unpublished opinion).


At that point, Dale raised an argument he hadn't made at the first trial—that the
two aggravated-robbery charges were multiplicitous. He also argued that even trying him
for a single aggravated-robbery charge at this point would violate his double-jeopardy
rights because he had already been convicted of theft for conduct arising out of the same
incident. The district court denied Dale's motion to dismiss the aggravated-robbery
charges based on these arguments.


After that, the parties agreed to try the charges to the district court, sitting without
a jury, using the transcripts of the original trial and a preliminary hearing. Based on that
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evidence, the district court convicted Dale on both counts of aggravated robbery. Dale
again appealed to our court.


We begin our analysis by setting out the standards by which we judge a
multiplicity claim. Our Supreme Court set out a two-part framework for this analysis in
State v. Schoonover, 281 Kan. 453, Syl. ¶¶ 3-4, 133 P.3d 48 (2006). First, we look to see
whether the charges arose from the same conduct—something the courts call "unitary"
conduct. If so, we move on to a second test that has two forms, depending on whether the
crimes being compared arise under a single statute.


Here, the theft and aggravated-robbery convictions arise under different statutes.
In that case, we look at whether the two crimes have the same elements. If one statute
requires proof of an element unnecessary to prove the other offense, then the statutes
don't define the same crime and are not multiplicitous—unless one crime is a lesser-
included offense of the other. In that case, the defendant may be convicted only of one
offense. 281 Kan. at 497-98; K.S.A. 2017 Supp. 21-5109.


Meanwhile, the two aggravated-robbery offenses arise under the same statute. In
that case, for the second part of the test, we apply a unit-of-prosecution test that looks at
how the Legislature has defined the scope of the conduct that violates the statute. We
must allow only one charge for each allowable unit of prosecution under the statute.
Schoonover; 281 Kan. at 497-98.


Let's start with the first part of that test, which applies in both situations. To
determine whether conduct is unitary, 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, in particular whether there was any
intervening event; and (4) whether there was a fresh impulse motivating any of the
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conduct. 281 Kan. at 497; see State v. Hood, 297 Kan. 388, Syl. ¶ 4, 300 P.3d 1083
(2013).


Dale took all the electronics at the same time and place. And while he separately
pushed Adam's head down and put a gun into Kyle's chest, we view all the activity as the
carrying out of a single plan to take the boys' property.


The State argues that there was an intervening event separating the two robberies—
Kyle standing up to try to stop Dale, an act Dale responded to by putting the gun to Kyle's
chest. But we see Dale as having embarked on a singular act of taking the boys'
electronics with the help of a gun (and an accomplice). No outside event interrupted Dale,
and everything occurred quickly. We find the conduct was unitary and move on to the
second step of the analysis.


As for the theft and aggravated-robbery charges, we apply the same-elements test.
Theft requires an act "done with intent to deprive the owner permanently of the possession,
use or benefit of the owner's property . . . [by o]btaining or exerting unauthorized control
over the property." K.S.A. 21-3701(a)(1). Robbery, meanwhile, "is the taking of property
from the person or presence of another by force or by threat of bodily harm to any person."
K.S.A. 21-3426. A robbery becomes aggravated when committed by a person armed with
a dangerous weapon or when the robber inflicts bodily harm on someone during the
robbery. K.S.A. 21-3427.


There are some differences in the way the two statutes are worded, and robbery
requires a taking by force, not merely a theft. But Kansas courts have consistently held
that theft is a lesser-included crime of both robbery and aggravated robbery. See, e.g.,
State v. Plummer, 295 Kan. 156, 164, 283 P.3d 202 (2012); State v. Romero, No.
105,158, 2012 WL 2924537, at *4 (Kan. App. 2012) (unpublished opinion); State v.
Fleming, No. 106,104, 2012 WL 4794560, at *10-13 (Kan. App. 2012) (unpublished
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opinion). Because Dale's actions were unitary and theft is a lesser-included offense of
robbery, the convictions for theft and aggravated robbery were improperly multiplicitous.
See K.S.A. 2017 Supp. 21-5109. When an appellate court finds multiplicitous convictions,
we reverse the less-severe offense. See State v. Gomez, 36 Kan. App. 2d
664, 673, 143 P.3d 92 (2006); State v. Garner, No. 102,790, 2012 WL 4794448, at *5
(Kan. App. 2012) (unpublished opinion); K.S.A. 21-5109(b) ("Upon prosecution for a
crime, the defendant may be convicted of either the crime charged or a lesser included
crime, but not both."). We will therefore reverse Dale's theft conviction.


For the two aggravated-robbery charges, we must apply the unit-of-prosecution
test. The Kansas Supreme Court applied that test to aggravated-robbery convictions in
State v. Pham, 281 Kan. 1227, 136 P.3d 919 (2006). In Pham, the court said that "under
proper circumstances, one transaction can support more than one count of aggravated
robbery." 281 Kan. at 1251. The Pham court cited State v. Jackson, 218 Kan. 491, 493,
543 P.2d 901 (1975), in support of that proposition. In Jackson, the court approved three
counts of aggravated robbery when property was taken at the same time by force from
three different victims in a retail pharmacy. In Pham, by contrast, "only one person was
relieved of [the] items of property" by force, even though more than one person owned
some of the items taken. 281 Kan. at 1251. So in Pham, the court held that only one
aggravated-robbery charge could be brought. 281 Kan. at 1251.


Here, Dale used a gun to take property owned by Adam and Kyle from the
presence of each of them. Dale pushed Adam's head between his legs and put a gun
behind his ear. Dale separately put his gun to Kyle's chest. The State could charge two
counts of aggravated robbery on these facts. See Garner, 2012 WL 4794448, at *4-5.


We have now addressed the primary issues on appeal, but there is still one
procedural quirk to this case that we must address. Before Dale's first trial and in his first
appeal, Dale didn't raise the issues he has brought in this appeal. The State argues that he
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should have—and suggests that the law-of-the-case doctrine prevents him from doing so
now. Dale counters that the State didn't raise the law-of-the-case doctrine in the district
court when Dale raised these issues following the first appeal but before he was retried on
the aggravated-robbery charges. Because the State didn't raise the issues then, Dale
argues, it shouldn't be allowed to raise them for the first time on appeal.



The law-of-the-case doctrine generally prevents a party from relitigating an issue
already decided on appeal in later stages of the same case. State v. Parry, 305 Kan. 1189,
Syl. ¶ 1, 390 P.3d 879 (2017). Here, when Dale was first convicted of two counts of
aggravated robbery and two counts of theft after his first trial, he didn't raise the
multiplicity issue on appeal. A related doctrine on finality of judgments, called res
judicata, also generally provides that once an appeal is taken from a criminal case, all
issues that weren't raised but could have are generally deemed to have been waived. See
State v. Kleypas, 305 Kan. 224, 240-41, 382 P.3d 373 (2016), cert. denied 137 S. Ct.
1381 (2017).



We note that in the Kleypas case, although the circumstances are different from
those in Dale's case, our Supreme Court allowed new arguments when the court
considered a second direct appeal within the same case, 305 Kan. at 244, and even
allowed a new multiplicity argument to be considered. 305 Kan. at 263-64. We think that
is proper here too.


But Dale tries to use this flexibility to raise a new argument in the second appeal

to gain an advantage he wouldn't have gotten had he raised the issues before the first trial.
Dale wants to take advantage of the affirmance in the first appeal of only his theft
conviction. Had the State initially tried Dale only on a theft charge and gotten a
conviction, the State couldn't later have tried him for aggravated robbery arising out of that
same criminal act. That would be a violation of his double-jeopardy rights.
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Dale argues that's essentially what happened here. After he had already been
convicted of theft, the State retried him for aggravated robbery. He argues that's a
violation of his double-jeopardy rights. But had he raised the issue in a more timely
manner—before the first trial—he would have been entitled only to the relief we are
awarding him: deletion of the multiplicitous theft conviction. We see no reason Dale
should get a reward for raising the issue only before his retrial on the aggravated-robbery
charges.


We note that the sentence entered by the district court for the theft conviction was
made concurrent with the aggravated-robbery convictions. As a result, reversing the theft
conviction and vacating that sentence does not affect the overall time Dale must serve, so
a resentencing is not needed.


We reverse Dale's theft conviction and vacate that sentence. The district court's
judgment is otherwise affirmed.