State of Kansas, Appellee, v. Henry Escalante, Appellant, 35 Kan. App. 2d 381

Pierron, J.: Hemy Escalante appeals his conviction for attempted aggravated kidnapping and aggravated batteiy. Escalante argues his convictions are multiplicitous, the trial court erred in not giving a unanimity jury instruction, and that his criminal history calculation is incorrect. Escalante and his ex-wife Nancy had been in a tumultuous relationship for 19 years. They had been married and divorced two times, and Nancy had filed for protection from abuse orders on multiple occasions. There was a protective order in place at the time of the events in this case.

Nancy had ordered Escalante out of her house on September 24, 2003. In the early morning hours of October 2, 2003, Escalante called Nancy and asked her to deliver his coveralls and coat to the hotel where he was staying. Nancy agreed and told Escalante she would deliver his clothes to the hotel during her lunch hour at work. Nancy was apprehensive and gave a note to her coworkers indicating she was going to the County Inn. She took the clothes to Escalante’s hotel room, and he asked if she would like to come in and talk. Nancy told Escalante she needed to get some gasoline and return to work.

When she returned to her car, Escalante got in the front seat with her. Nancy testified she was scared to death. She said she could tell he had been drinking. Escalante said he needed a ride to Food-4-Less. Nancy said she wanted to get out of the car right then, but they were in an isolated place in the parking lot behind the hotel. As they approached the Food-4-Less, Escalante told Nancy to keep driving to the country. She looked over at him and saw he had a small kitchen or paring knife in his hand. As they approached a K-Mart, Escalante told her to keep driving or he would stab her right there.

Because there were many people around, Nancy drove into the K-Mart parking lot, stopped the car, opened the door, and tried to get out. Escalante pulled Nancy back into the car and repeatedly stabbed her in the chest, waist, neck, and arm. After she broke free, Nancy ran towards the K-Mart. A woman in a truck behind Nancy’s car witnessed the entire event and was able to help cause a distraction by repeatedly honking her horn. Nancy was taken to the hospital by ambulance and was treated for minor cuts and released.

Escalante was charged with aggravated kidnapping, aggravated batteiy, criminal threat, and aggravated assault. On the charge of aggravated kidnapping, the jury was instructed on the lesser included offenses of attempted aggravated kidnapping and criminal restraint. The jury convicted Escalante of attempted aggravated kidnapping, aggravated battery, aggravated assault, and criminal threat. Prior to sentencing, Escalante filed an objection to his criminal history and a motion for judgment of acquittal based on multiplicity of charges.

The trial court granted an acquittal of Escalante’s aggravated assault and criminal threat convictions, finding there was one continuous course of conduct and those two convictions merged into the aggravated battery in a single act of violence. The court rejected Escalante’s criminal history objections and sentenced him to a controlling term of 233 months’ incarceration. Escalante died during his incarceration. Under State v. Jones, 220 Kan. 136, 551 P.2d 801 (1976), we will consider the underlying conviction but not the sentencing issues.

First, Escalante argues his convictions for attempted aggravated kidnapping and aggravated battery are mutiplicitous and he cannot be convicted of both crimes. He contends the trial court determined there was a cohesive and continuous course of conduct and he cannot be convicted of multiple crimes for a single act of violence. Whether charges are multiplicitous is a question of law, and an appellate court’s review is unlimited. State v.

Kessler, 276 Kan. 202, 204, 73 P.3d 761 (2003). “Multiplicity is the charging of two or more counts in a complaint where only a single wrongful act is involved. [Citation omitted.]” State v. Stevens, 278 Kan. 441, 446, 101 P.3d 1190 (2004). “The test to determine whether the charges in a complaint or information are multiplicitous is whether each offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous.” 278 Kan. at 447. In State v.

Patten, 280 Kan. 385, Syl. ¶ 4, 122 P.3d 350 (2005), the Kansas Supreme Court reiterated its reliance on a straight elements test for multiplicity: “The test of multiplicity is the strict element test without considering the facts that must be proven to establish those elements.” The Patten court indicated this test is favorable (1) for facility of application and certainty, and (2) to avoid any possibility of returning to the difficulties of the second prong of State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988). 280 Kan. 393. Escalante relies on State v.

Groves, 278 Kan. 302, 95 P.3d 95 (2004), for his argument that because there was one single act of violence in the same time and place, the charges in this case are multiplicitous. The facts in Groves are arguably distinguishable from the present case. In Groves, the court held the defendant’s convictions for aggravated robbery and aggravated battery were multiplicitous where the same act of violence, grabbing the victim’s purse and knocking her to the ground, provided the basis for each conviction. 278 Kan. at 307-08.

To be convicted of attempted aggravated kidnapping, the defendant must perform one or more overt acts toward the commission of the crime of aggravated kidnapping, with the intent to commit an aggravated kidnapping, but fail to complete the crime of aggravated kidnapping. See K.S.A. 21-3301; K.S.A. 21-3421. To be convicted of aggravated battery, Escalante must have intentionally caused physical contact with the victim in a rude, insulting, or angry manner with a deadly weapon, or in a manner whereby great bodily harm, disfigurement, or death could have been inflicted, on the date in question.

See K.S.A. 21-3414(a)(1)(C). We do not find Escalante’s case presents a situation of a “single act of violence” as was the case in Groves when analyzing the question of multiplicity. The events in this case clearly consisted of a continuous incident, but the charges are not multiplicitous as a single act of violence. See Groves, 278 Kan. at 307; State v. Bishop, 240 Kan. 647, 653-54, 732 P.2d 765 (1987). “The test concerning whether a single transaction may constitute two separate and distinct offenses is whether the same evidence is required to sustain each charge.

If not, the fact that both charges relate to and grow out of the same transaction does not preclude convictions and sentences for both charges. [Citation omitted.] Multiplicity does not depend upon whether the facts proved at trial are actually used to support convictions of both offenses charged; rather, it turns upon whether the elements of proof necessary to prove one crime are also necessary to prove the other. [Citation omitted.]” State a Vontress, 266 Kan. 248, 256, 970 P.2d 42 (1998).

The State may not split a single offense into separate parts where there is a single wrongful act which does not furnish the basis for more than one criminal prosecution. However, where the criminal conduct of the defendant supports convictions for more than one crime, K.S.A. 2005 Supp. 21-3107 provides statutory authority for multiple convictions even though the criminal conduct of a defendant consists of a single transaction. See State v. Mincey, 265 Kan. 257, 262, 963 P.2d 403 (1998).

Considering the elements set forth in attempted aggravated kidnapping and aggravated battery, it appears that aggravated battery does not constitute a lesser degree, attempt, or attempt to commit a lesser degree of attempted aggravated kidnapping. Therefore, the convictions for both counts are not necessarily multiplicitous as each charge required proof of an element not required in proving the other, notwithstanding the fact that there was a continuous event.

Due to the elements of aggravated kidnapping as charged here, had that crime been successfully completed, the aggravated battery would have merged with the aggravated kidnapping. However, here there was only an attempt, which did not require a completed aggravated battery, so the two crimes are not merged. Next, Escalante argues the trial court erred in not giving a unanimity juiy instruction. We disagree. Escalante did not raise his unanimity instruction argument during trial. Escalante raised the issue in his motion for judgment of acquittal notwithstanding the verdict or, in the alternative, for new trial.

He argued that because the State kept the basis of the charges vague and did not separate out which act formed which charge, the jury was left to guess in trying to figure out if the verdict was unanimous. The trial court denied the motion at sentencing. Having failed to request the jury instruction at trial, our standard of review is based on clear error. “ It is well established that [an appellate] court reviews a trial court’s failure to give an instruction by a clearly erroneous standard where tire party neither requested the instruction nor objected to its omission.’ [Citation omitted.]” State v.

Pabst, 273 Kan. 658, 660, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002). “ ‘Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if tire error had not occurred.’ [Citation omitted.]” State v. Shirley, 277 Kan. 659, 666, 89 P.3d 649 (2004). In a multiple acts case, several acts are alleged and any one of tire acts could constitute the crime charged. In such a case, the jury must be unanimous as to which act constitutes the crime. State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003).

Therefore, to ensure jury unanimity, either the State must elect the particular act upon which it will rely for conviction or the court must instruct the jury to agree on a specific underlying criminal act. State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994). In State v. Hill, 271 Kan. 929, Syl. ¶ 3, 26 P.3d 1267 (2001), our Supreme Court adopted a two-step analysis for determining whether a unanimity instruction is required. The first step is to determine whether there was a possibility of jury confusion from the record, or if the evidence shows either legally or factually separate incidents.

A legally separate incident is when a defendant presents different defenses to a separate set of facts or when the court’s instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents. A factually separate incident is when independent criminal acts have occurred at different times or when a later act is motivated by a “fresh impulse.” If juiy confusion is not shown under step one, the second step is to determine if the failure to give a unanimity instruction is harmless beyond a reasonable doubt with respect to all acts. 271 Kan. at 939.

Escalante claims that he presented separate defenses to the attempted aggravated kidnapping, namely that the cuts were minor and Nancy was not confined when they got in the car and left the hotel, and to the aggravated battery, namely that no knife was ever found and Nancy was not a credible witness. We agree with the State that Escalante’s claims of multiple defenses are without merit and obviously amount to the same defense, namely that he did not kidnap Nancy and he did not cut her badly with the knife.

As previously discussed in relation to the multiplicity argument, the events in this case involved a relatively short, continuous, single incident comprised of several overt acts individually sufficient for conviction of attempted aggravated kidnapping as well as aggravated battery. Consequently, jury unanimity requires only that the jury agree to the act of the crime charged, not which particular act. See State v. Staggs, 27 Kan. App. 2d 865, Syl. ¶ 2, 9 P.3d 601 (2000). We do not consider this case a “multiple acts” case, and we are convinced that there was no possibility of jury confusion.

There was certainly no clear error in not giving the unanimity instruction. Moreover, any such purported error was harmless beyond a reasonable doubt with respect to all acts. See Hill, 271 Kan. at 939-40. Specifically, it was made clear what overt acts were charged and which supporting evidence that the State was relying upon in estabhshing each charge, and Escalante did not present separate defenses to any of the overt acts outlined by the prosecution.

Last, Escalante argues the trial court erred in overruling his objection to his criminal history by including in his history a crime that had been enhanced and also the crimes used to enhance that crime to the felony level. His appellate brief requests a remand for resentencing. “Although many other courts have held the death of a defendant during the pendency of his appeal from a criminal conviction abates die appeal, in Kansas the death of a defendant does not abate his direct appeal as it is in the interest of tire public that the issues raised on appeal be adjudicated upon tire merits. State v.

Jones, 220 Kan. 136, 137, 551 P.2d 801 (1976). While death moots the sentence and renders impossible a new trial, [a defendant’s] appeal as to the admitted redacted statement should be reviewed and decided.” State v. Burnison, 247 Kan. 19, 32, 795 P.2d 32 (1990). We hold all issues regarding computation of Escalante’s sentence are rendered moot as a result of his death, as any resentencing is academic. Affirmed.