In State v. Whetstone, 43 Kan. App. 2d 650, 650-654 (Kan. Ct. App. 4/22/2010, No. 101,157) Whetstone made one threat that was communicated to two individuals; specifically, he communicated a threat to "burn down the house and kill [them] all." As a result, he was charged with and convicted of two counts of criminal threat for a threat to "[c]ommit violence communicated with intent to terrorize another," as proscribed in K.S.A. 21-3419(a)(1). On appeal Whetstone contended that the convictions were multiplicitous.
Multiplicity, charging of a single offense in several counts, 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. See Statev. Schoonover, 281 Kan. 453, Syl. P 10, 133 P.3d 48 (2006). The issue of whether convictions are multiplicitous is a question of law subject to unlimited review on appeal. Schoonover, 281 Kan. at 462.
In Schoonover, the Kansas Supreme Court developed a two-component analytical framework for the resolution of multiplicity issues: "(1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?" 281 Kan. at 496. In Whetstone the parties agreed that the two charges for criminal threat arose from one utterance; consequently, the only issue was whether the statute allowed multiple convictions for the same threat.
The Kansas Court of Appeal concluded that a plain reading of the statute required it to hold that Whetstone's convictions for two counts of criminal threat were multiplicitous.
Moreover, under both federal and state law, the unit of prosecution in Kansas is evaluated with "a rule of lenity." State v. Gomez, 36 Kan. App. 2d 664, 670, Syl. P 1, 143 P.3d 92 (2006). The rule of lenity derives from the United States Supreme Court's pronouncement that "[w]hen Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity." Schoonover, 281 Kan. at 472 (quoting Bell v. United States, 349 U.S. 81, 83, 99 L. Ed. 905, 75 S. Ct. 620 [1955]). In application, when the legislature fails to provide a unit of prosecution that "'clearly and without ambiguity'" allows two convictions for the same act, only one conviction will be allowed. 281 Kan. at 472. Consequently, as there is an ambiguity as to legislative intent, Whetstone's convictions were multiplicitous.
For subscription based briefing and sample instructions on this and related issues see:
Forecite National™
The Shellow Instructions
Forecite California™
