Accomplices (parties to a crime)

Kansas Case Law

STATE v. SIMMONS, 91,659 (Kan. 12-15-2006) STATE OF KANSAS,
Appellee, v. DONALD L. SIMMONS, Appellant. No. 91,659
Supreme Court of Kansas Updated: December 15, 2006..

SYLLABUS BY THE COURT

1. Without evidence of an agreement between a witness and
the perpetrator of the crime, the witness cannot be an
accomplice under a conspiracy theory because there was no
evidence of a conspiracy.

2. An accomplice witness is one who testifies that he or
she was involved in the commission of the defendant’s
charged crime.

3. A witness is not an accomplice within the meaning of PIK
Crim. 3d 52.18 because the witness was present during a
crime, because the witness failed to stop a crime, or
because the witness failed to report a crime.

4. An accessory after the fact, where there is no
prearranged plan for a witness’ involvement after the
crime, does not participate in the commission of the crime
and is not an accomplice.

5. Except in a felony-murder case, a defendant has a right
to an instruction on all lesser included offenses supported
by the evidence as long as (1) the evidence, when viewed in
the light most favorable to the defendant’s theory, would
justify a jury verdict in accord with that theory and (2)
the evidence at trial does not exclude a theory of guilt on
the lesser offense. Under the facts of this case, lesser
included offense instructions would not have been proper
because the jury could not have reasonably convicted the
accused of the lesser offense based upon the evidence.

6. Aggravated kidnapping charged pursuant to K.S.A.
21-3420(b) and K.S.A. 21-3421 and aggravated robbery
charged pursuant to K.S.A. 21-3426 and K.S.A. 21-3427 are
not multiplicitous.

Review of the judgment of the Court of Appeals in an
unpublished opinion filed March 3, 2006. Appeal from
Sedgwick district court; ERIC R. YOST, judge. Judgment of
the Court of Appeals reversing the district court is
reversed. Judgment of the district court is affirmed.
Opinion filed December 15, 2006.

Korey A. Kaul, of Kansas Appellate Defender Office, argued
the cause and was on the brief for appellant.

Boyd K. Isherwood, assistant district attorney, argued the
cause, and Nola Tedesco Foulston, district attorney, and
Phill Kline, attorney general, were with him on the brief
for appellee.

PER CURIAM:

This case is before us on review of the Court of Appeals’
decision to reverse defendant Donald L. Simmons’
convictions of aggravated kidnapping and aggravated robbery
because the trial court refused to give an accomplice
instruction. See State v. Simmons, No. 91,659, unpublished
opinion filed March 3, 2006. Our consideration of the issue
of whether reversible error occurred requires determination
of whether one who is an accessory after the commission of
a crime can be considered an accomplice and, more
generally, whether under the facts of this case various
witnesses were accomplices.

Our review leads to the conclusion that the trial court
appropriately declined to give an accomplice instruction.
Because we reverse the Court of Appeals panel on this issue
and affirm the trial court, we must also consider two
issues not reached by the Court of Appeals panel: whether
lesser included offense instructions should have been given
and whether the crimes of aggravated robbery and aggravated
kidnapping are multiplicitous.

Factual and Procedural Backgrounds

The victim, Dick Baker, was a bricklayer who owned his own
business and worked as a subcontractor. John Simmons
(John), son of the defendant Donald L. Simmons (Simmons),
and his friend, Dan Cornell, were employees of Baker and
went to Baker’s home to collect their pay for 2 days of
work. Baker paid them directly from his wallet, which
contained a large sum of cash. After collecting their pay,
John and Cornell went to Simmons’ mobile home where they
began to discuss with Simmons and friends Aris Small and
Jimmy Meza that Baker had a large amount of cash which
might have been ill-gotten. John testified that this was
just “table talk” and that they knew nobody would take it
seriously. Similarly, Small, a female teenager who was a
friend and roommate of Simmons and was present at his
trailer, had the impression that the talk was not serious
and that the conversation would go “no farther than the
table.”

At trial, Meza testified that Cornell and John asked if
Meza wanted to “make some money real fast.” He responded
that he did not want anything to do with it. However,
according to the trial testimony of John, Small, and Meza,
Simmons stated that he would “do it.” At that point, John
had second thoughts and expressed that he did not want the
robbery to take place. According to John’s trial testimony,
when he told Simmons that the robbery was a “stupid idea”
and that he did not want any part of it, Simmons said it
was “too bad.” John testified he told his father not to
hurt Baker. Then, John and Cornell left Simmon’s residence,
ostensibly because they did not want to be involved.

Witnesses testified that Simmons put on a hooded
sweatshirt, women’s sunglasses, a coat and gloves, and
proceeded to leave the trailer on foot. Small saw Simmons
carrying duct tape. Small and Meza also left; they,
however, merely went to eat. Later in the evening, John
called Simmons, who told John to come over because he had
the money. Simmons told the others that he went over to
Baker’s trailer on the pretense of getting a job, but he
ultimately beat Baker and taped his arms and legs to a
table with duct tape. Simmons told the others that just
before the attack, he said something like, “Let’s party.”
Later, Simmons called John and Cornell to the back bedroom
of the trailer where he gave them each $1,600. Then, he
sent them into the living room to pay the others with $100
bills to keep them all from talking about what had happened.

The day after the attack, Michael Eades and Kenneth
Williams, other employees of Baker, went to Baker’s
residence when he did not show up at a job site. Eades and
Williams heard mumbling when they knocked on the door and a
muffled cry for “help,” so they got concerned and entered
the trailer through the sliding glass door in the back.
They found Baker on the floor, gagged and bound to a coffee
table with duct tape. His legs were taped to the table, his
arms were behind his back and taped to the table, and he
had duct tape wound all the way up his head and over his
face. Williams called the police.

Williams testified that the tape was “bound so solid” that
he did not know how Baker could breathe. Eades and Williams
helped Baker by cutting some of the tape to relieve
pressure caused by swelling and to allow him to breathe
easier; they also gave him some fluids to drink. Although
Baker initially went in and out of consciousness, he
ultimately survived. As a result of the attack, Baker
sustained nerve damage and kidney problems.

At trial, Baker confirmed that, around 9:30 or 10 p.m., his
attacker knocked on Baker’s door and inquired about a job.
After the two talked for several minutes, Baker turned to
go sit down on the couch as the other man was leaving and
heard him say, “Let’s party.” Then, the attacker struck
Baker’s head, shoved his head into the sofa cushion, and
duct-taped him to the table. Baker did not see much of his
attacker’s face and was unable to identify his attacker.
According to Baker’s testimony, he had “known of” Simmons
for approximately 20 years, just well enough to merely say
“hi” to him in passing. Although some aspects of Baker’s
physical description of the attacker were inconsistent with
Simmons’ characteristics, including age, height, weight, and
the presence of “gold” and “silver” caps on his teeth,
Baker described the attacker as a male wearing a hooded
sweatshirt, a coat, women’s sunglasses, and gloves. Baker
also testified that $9,400 was missing from his trailer.

Simmons, John, and Cornell were originally charged
regarding this matter. The charges against John were
dismissed after the trial court determined at the
preliminary hearing that there was insufficient evidence
against him to bind him over for trial.

At Simmons’ trial, the defense requested a cautionary
accomplice testimony instruction with regard to John, but
the trial court denied the request. Simmons was convicted
of aggravated kidnapping and aggravated robbery.

Court of Appeals’ Decision

Simmons appealed his convictions, raising three issues: (1)
whether the trial court erred in failing to give a
cautionary accomplice jury instruction; (2) whether the
trial court erred in failing to give lesser included jury
instructions on kidnapping, criminal restraint, robbery,
and theft; and (3) whether the crimes of aggravated
kidnapping and aggravated robbery are multiplicitous under
the facts of the case.

With regard to the accomplice jury instruction, at trial
Simmons requested that such an instruction be given as it
specifically related to John. The Court of Appeals,
however, did not limit its analysis of the accomplice
instruction’s application to John’s testimony. For the
first time on appeal, Simmons asserted to the Court of
Appeals that an accomplice instruction was warranted
because three witnesses — John, Small, and Meza
— were allegedly involved in the commission of the
crime. (Cornell did not testify at trial.) Thus, the Court
of Appeals examined whether those three witnesses were
accomplices. The panel concluded that “any of these
individuals may have been subject to criminal charges, and
their testimony against Simmons should have been viewed as
accomplice testimony.” Simmons, slip op. at 7.

Noting that the trial court based its refusal to give a
cautionary accomplice instruction on its prior
determination that John was not bound over for trial based
on the State’s aiding and abetting theory, the Court of
Appeals indicated that the trial court’s reasoning
“blur[red] the distinction between accomplice liability and
other forms of criminal liability,” and that the trial
court erroneously preferred “consistency with prior rulings
on criminal liability of one or more witnesses to an
independent determination of whether there is a reasonable
basis for accomplice liability of any witness at the
trial.” Slip op. at 8. The panel further observed that the
trial court’s discharge of John from criminal liability at
the preliminary hearing was introduced at trial; thus, the
panel concluded that the refusal to give the cautionary
instruction, coupled with evidence of the discharge, may
have misled the jury to believe that John’s testimony did
not need to be viewed with caution. The Court of Appeals
concluded that this was “clearly prejudicial.” Slip op. at
8.

Finding that the refusal to give the accomplice instruction
was reversible error, the Court of Appeals reversed
Simmons’ convictions and remanded for a new trial. In light
of that holding, the panel held Simmons’ remaining claims
of error were moot. Slip op. at 9.

Did the Trial Court Err in Refusing to Instruct the Jury to
Consider With Caution the Testimony of an Accomplice?

On our review of the Court of Appeals’ decision, the State
argues that, in reversing the defendant’s convictions, the
Court of Appeals erroneously disregarded this court’s
well-established directives regarding the application of
PIK Crim. 3d 52.18 (testimony of an accomplice), where we
have specified that a cautionary accomplice instruction is
necessary only where a witness testifies that he or she was
involved in the commission of the crime with which the
defendant has been charged. Specifically, the State asserts
that neither John, Meza, nor Small fit the PIK Crim. 3d
52.18 definition of an accomplice.

Standard of Review

A review of the transcript from the jury instructions
conference shows that Simmons’ request for an accomplice
witness instruction related solely to the testimony of
John. When an accomplice testifies and a cautionary
instruction is requested but not given, the result may be
error. State v. Moore, 229 Kan. 73, 80, 622 P.2d 631 (1981).
With regard to the jury instruction as it related to John’s
testimony, the following standard of review applies:

“When the trial court refuses to give a requested
instruction, an appellate court must view the evidence in a
light most favorable to the party requesting the
instruction. . . . [A]n appellate court cannot consider the
requested instruction in isolation. Rather, the court must
consider all of the instructions together as a whole. If
the instructions as a whole properly and fairly state the
law as applied to the facts of the case, and the jury could
not reasonably be misled by them, the instructions are not
reversible error even if they are in some way erroneous.
[Citation omitted.]” State v. Jackson, 280 Kan. 541,
549-50, 124 P.3d 460 (2005); see State v. Mays, 277 Kan.
359, 378-79, 85 P.3d 1208 (2004).

It is important to note, however, that the Court of Appeals
also considered the trial court’s refusal to give a
cautionary accomplice jury instruction in relation to the
corroborating testimony of Small and Meza. The State
suggests that a clearly erroneous standard should apply in
reviewing the issue and, with respect to these two
witnesses, that appears to be correct. While the record on
appeal shows that Simmons proposed a general cautionary
accomplice jury instruction, the transcript of the jury
instructions conference shows that he requested the
instruction merely as it related to John’s testimony.

Because Simmons’ request for the accomplice witness
instruction did not give the trial court the opportunity to
consider the application of the instruction as it applied
to Small and Meza, it is appropriate to apply the clearly
erroneous standard of review. See K.S.A. 2005 Supp.
22-3414(3). The determination of whether the accomplice
instruction should be given depends on whether the witness
is an accomplice. Therefore, the analysis differs as to
each witness and is based upon his or her involvement in
the events. Thus, the trial court could have concluded the
accomplice witness instruction was not warranted based upon
John’s involvement, but it could have determined the
instruction may have been appropriate based upon Small’s or
Meza’s. We, therefore, conclude that the analysis as to
these witnesses requires application of the clearly
erroneous standard. Under that standard, where an
instruction was not requested, the failure to give an
instruction is clearly erroneous only if the appellate
court reaches a firm conviction that, had the instruction
been given, there was a real possibility the jury would
have returned a different verdict. See State v. Boone, 277
Kan. 208, 220, 83 P.3d 195 (2004).

If there is error, we must then examine whether the error
was prejudicial. In determining whether prejudicial error
has occurred in the failure to give an accomplice witness
instruction, courts generally examine the extent and
importance of the accomplice testimony, as well as any
corroborating testimony. State v. DePriest, 258 Kan. 596,
605, 907 P.2d 868 (1995); see Moore, 229 Kan. at 80-81.

Pertinent Jury Instructions

The accomplice instruction requested by Simmons was based
on PIK Crim. 3d 52.18, which states:

“An accomplice witness is one who testifies that (he)(she)
was involved in the commission of the crime with which the
defendant is charged. You should consider with caution the
testimony of an accomplice.”

The PIK Crim. 3d 52.18 Notes on Use indicate that it is
proper to give this cautionary instruction whether or not
there is corroborating evidence, as long as the accomplice
is not also a codefendant in the trial. In the present
case, the trial court did not give the accomplice witness
instruction, but the court gave the general credibility of
witnesses instruction to the jury, PIK Crim. 3d 52.09, which
states:

“It is for you to determine the weight and credit to be
given the testimony of each witness. You have a right to
use common knowledge and experience in regard to the matter
about which a witness has testified.”

Accomplice Liability

As a threshold matter, it must be determined whether John,
Meza, or Small were accomplices to Simmons. The State
argues that a cautionary accomplice witness instruction was
not required at trial because neither John, Meza, nor Small
testified that they were involved in the “commission” of
the crimes with which Simmons was charged. According to the
Court of Appeals, the State’s proposed application of the
instruction is too narrow. We disagree.

More specifically, the Court of Appeals stated:

“Based upon testimony at the preliminary hearing, clearly
John and Cornell could have been charged with conspiracy. .
. . Others present in Simmons’ trailer for the discussion
of an attack on Baker certainly did not protest or report
the plan and quite willingly accepted a share of the fruits
of the crime, arguably triggering accomplice liability as
well.” Simmons, slip op. at 7.

In considering these conclusions it is helpful to first
discuss the distinction between liability for crimes of
another, K.S.A. 21-3205, and the crime of conspiracy,
K.S.A. 21-3302. Under K.S.A. 21-3205 an individual is
criminally responsible for a crime committed by another if
that individual intentionally aids, abets, advises, hires,
counsels, or procures the other to commit the crime. In
addition, the individual is also statutorily liable for any
other crime committed in pursuance of the intended crime if
reasonably foreseeable by him or her as a probable
consequence of committing or attempting to commit the crime
intended.

The crime of conspiracy, K.S.A. 21-3302, is an agreement
with another person to commit a crime or to assist in
committing a crime. In addition, the legislature provided
that no person may be convicted of the crime of conspiracy
unless an overt act in furtherance of the conspiracy is
alleged and proved to have been committed by the individual
or by a coconspirator. The legislature provided a defense
to the crime of conspiracy if the accused voluntarily and
in good faith withdraws from the conspiracy and
communicates the fact of such withdrawal to one or more of
the coconspirators before any overt act in furtherance of
the conspiracy has been committed by the accused or by a
coconspirator. K.S.A. 21-3302(b).

As we have noted, the Court of Appeals believed there was
a possibility of conspiracy liability. The panel stated:
“Based upon testimony at the preliminary hearing, clearly
John and Cornell could have been charged with conspiracy.”
Slip op. at 7. There are several reasons we reject this
conclusion. First, this analysis is skewed because the
appropriateness of a jury instruction is not based upon
testimony made at a preliminary hearing; rather,
consideration of whether an instruction should be given is
based upon evidence presented at trial. Second, it was
acknowledged by the trial court that the charges against
John, alleging criminal liability, were dismissed at the
close of John’s probable cause hearing. Thus, a lack of
evidence had previously been recognized with respect to
John’s alleged role in the crime.

Most importantly, even when the evidence at trial is viewed
in a light most favorable to Simmons, there is no evidence
that Small, Meza, or John had even a tacit agreement with
Simmons relating to the charged crimes of aggravated
robbery and aggravated kidnapping. In fact, with regard to
Small, there was no evidence she did any more than listen
to the discussion; there was no evidence that she
participated in the planning or the actual attack. At best,
there was evidence of discussions involving John, Cornell,
and Simmons, which might have constituted planning.
However, John’s testimony, which was corroborated by other
witnesses and never contradicted at trial, was that John
was vehemently opposed to his father’s decision to commit
the crime. Thus, there was no evidence of any agreement, a
necessary predicate to finding a conspiracy. As we have
previously stated, without evidence of an agreement between
a witness and the perpetrator of the crime, the witness
cannot be an accomplice under a conspiracy theory because
there was no evidence of a conspiracy. State v. Humphrey,
267 Kan. 45, 63, 978 P.2d 264 (1999).

Next, the Court of Appeals stated that John and other
witnesses “did not protest or report the plan and quite
willingly accepted a share of the fruits of the crime,
arguably triggering accomplice liability as well.” Simmons,
Slip op. at 7. Discussion of this conclusion, requires some
examination of the definition of accomplice liability.

PIK Crim. 3d 52.18 defines “accomplice witness” as one who
testifies that he or she was “involved in the commission”
of the defendant’s charged crime. See State v. Able, 261
Kan. 331, 336, 932 P.2d 952 (1997), disapproved on other
grounds State v. Mathenia, 262 Kan. 890, Syl. § 3,
942 P.2d 624 (1997). This is consistent with the general
view which is that “[a] person is an `accomplice’ of
another in committing a crime if, with the intent to
promote or facilitate the commission of the crime, he
solicits, requests, or commands the other person to commit
it, or aids the other person in planning or committing it.”
1 Torcia, Wharton’s Criminal Law 38, p. 220 (15th
ed. 1993). Thus, the term refers to a wide range of persons
who, at common law, were said to have primary or secondary
liability-principals who are codefendants, accessories,
conspirators, or aiders and abettors. However, although the
term is often used inadvertently and without precision as a
synonym for one of these categories of criminal actors,
technically the term “accomplice witness” applies only when
one who has been involved in the commission of a crime is
called to testify against another during the course of a
trial. See 21 Am. Jur. 2d, Criminal Law § 205.

Kansas case law is consistent with this general view. Many
of the relevant cases are fully discussed in State v.
Davis, (No. 94,366, filed December 8, 2006). That
discussion need not be repeated here; suffice it to say
that the cases make it clear that to be an accomplice
witness, the person must testify and be involved in the
commission of the crime. See State v. Gholston, 272 Kan.
601, 616-18, 35 P.3d 868 (2001), cert. denied 536 U.S. 963
(2002); Humphrey, 267 Kan. at 62-63; Abel, 261 Kan. at 336;
State v. Noriega, 261 Kan. 440, 447, 932 P.2d 940 (1997),
disapproved on other grounds Mathenia, 262 Kan. 890, Syl.
§ 3.

The Court of Appeals cited no authority for its conclusion
that accomplice liability might arise because of the
failure to stop or report a crime. As noted, by definition,
an accomplice must participate in the crime. Certainly,
that participation may be as an aider and abettor, but
failing to stop or report a crime is not the basis for
liability under an aider and abettor theory.

“To be convicted as an aider and abettor, `the law requires
that the person knowingly associates with the unlawful
venture and participates in a way which indicates that such
person is furthering the success of the venture.’ State v.
Hobson, 234 Kan. 133, 138, 671 P.2d 1365 (1983). Mere
association with the principals who actually commit the
crime or mere presence in the vicinity of the crime is
itself insufficient to establish guilt as an aider and
abettor; however, when a person knowingly associates with
the unlawful venture and participates in a way which
indicates he or she willfully is furthering the success of
the venture, such evidence of guilt is sufficient to go to
the jury. [Citation omitted.]” State v. Kaiser, 260 Kan.
235, 242, 918 P.2d 629 (1996), disapproved on other grounds
State v. Gonzales, 282 Kan. 73, 145 P.3d 18 (2006).

Similar conclusions apply to the determination of whether
someone is an accomplice. We have repeatedly held that mere
presence during the planning or commission of a crime does
not make one an accomplice. E.g., Humphrey, 267 Kan. at
62-63. Moreover, as we stated in Davis, “This court has
specifically rejected the idea that mere `involvement in
events’ makes a witness an accomplice within the meaning of
PIK Crim. 3d 52.18. See Gholston, 272 Kan. at 618. Instead,
the witness must have been involved in the commission of
the crime with which the defendant is charged.” Davis, slip
op. at 25. It follows from this reasoning that the mere
failure to stop a crime or to report a crime does not make
one an accomplice.

The final basis mentioned by the Court of Appeals for
finding the witnesses to be accomplices was their receipt
of money after the crime had been committed. While courts
in other jurisdictions have determined that where there has
been a prearranged plan or conspiracy, accepting fruits of
the crime creates accomplice liability for purposes of
corroboration, there is nothing in Kansas case law to
suggest that one can be held liable as an accomplice solely
for receiving stolen cash, especially where there is no
evidence of a prearranged plan. See Annot., Receiver of
Stolen Goods as Accomplice § 4, 74 A.L.R. 3d 560;
People v. Lima, 25 Cal. 2d 573, 577, 154 P.2d 698 (1944)
(although thief and receiver of stolen goods generally are
not accomplices, exception exists where they conspire
together in prearranged plan for one to steal and deliver
property to other and, pursuant to such plan, one does steal
and deliver to other); see also Grady v. Commonwealth, 237
Ky. 156, 158, 35 S.W.2d 12 (1931) (ordinarily one who
steals goods is not accomplice of individual who knowingly
receives them).

A case that comes close to such a receiving-stolen-goods
scenario is State v. Duhon, 33 Kan. App. 2d 859, 863, 109
P.3d 1282 (2005), where the defendant became involved in a
drug buying and selling scheme with Mary Kay Green in 1997.
Green would send money to Duhon in California, and Duhon
would mail Green quantities of marijuana. At some point in
1997, Green was robbed when she was attempting to sell 9 or
10 pounds of Duhon’s marijuana, and she thought she owed
Duhon approximately $6,000 for the stolen drugs. Green
testified that Duhon shipped her two or three packages of
marijuana during 1999. Then in April 2000, Green was
arrested and charged with felony drug possession.

According to Green, she was hesitant to tell Duhon she
would no longer accept shipments from him because she owed
him money. She tried to avoid his phone calls, but in May
2000, Duhon called to tell her that a package was on its
way. Green also testified that Duhon had never sent a
package without it being requested. Duhon told Green he
would be going to Omaha to sell drugs and needed to ship
them to her house. When authorities were alerted regarding
the suspicious package, they arranged for a controlled
delivery. Green initially denied that she was expecting
anything, but then signed for the package. A KBI analysis
confirmed that the package contained marijuana.

At Duhon’s trial, where he was charged with delivery of
marijuana and attempted possession of marijuana with the
intent to sell, the trial court refused to give a
cautionary accomplice witness instruction. The court found
that Green was not adequately involved in the crime to
warrant the instruction. The Court of Appeals held the
failure to give such an instruction was reversible error
and determined that “[e]ven though Green testified that she
did not request the package of marijuana from Duhon, she
knew what was in the package when she signed for it. Green
could have refused the package. By accepting the package
knowing its contents, Green became an accomplice.” 33 Kan.
App. 2d at 863.

The present case is distinguishable from Duhon, where a
relationship existed in which the witness accepted packages
of drugs from the defendant and, thus, Green participated
in the crime.

Moreover, in Davis, slip op. at 23-25, we rejected the
defendant’s argument that State v. Rakestraw, 255 Kan. 35,
871 P.2d 1274 (1994), holds that a mere accessory after the
fact is enough to warrant an accomplice witness
instruction. Rather, as we previously noted, in Davis, slip
op. at 20-25, we emphasized that to be an accomplice, one
must participate in the crime.

We therefore conclude the Court of Appeals’ analysis was in
error and disagree that the failure to give the accomplice
witness instruction required reversal of Simmons’
convictions. This court has determined that no reversible
error occurs due to a trial court’s failure to give a
cautionary accomplice witness instruction if a witness’
testimony is corroborated by other evidence and the
witness’ testimony does not provide the sole basis for a
resulting conviction. See State v. Beuhler-May, 279 Kan.
371, 384-85, 110 P.3d 425, cert. denied ___ U.S. ___, 163
L. Ed. 2d 465 (2005); State v. Reed, 256 Kan. 547, 558-59,
886 P.2d 854 (1994). Portions of John’s testimony were
clearly corroborated by other witnesses’ testimony, and
John’s testimony did not provide the sole basis for
Simmons’ convictions.

Further, a failure to provide the jury with the cautionary
accomplice witness instruction of PIK Crim. 3d 52.18 is not
error when the defendant’s guilt is plain or when the jury
is cautioned about the weight to be accorded testimonial
evidence in other instructions. State v. Crume, 271 Kan.
87, 94-95, 22 P.3d 1057 (2001). In Crume, this court found
no error when the jury was instructed: “It is for you to
determine the weight and credit to be given the testimony
of each witness. You have a right to use common knowledge
and experience in regard to the matter about which a
witness testified.” 271 Kan. at 95; see State v. Moody, 223
Kan. 699, 702-03, 576 P.2d 637, cert. denied 439 U.S. 894
(1978); State v. Percival, 32 Kan. App. 2d 82, 92-93, 79
P.3d 211 (2003), rev. denied 277 Kan. 927 (2004). The same
cautionary credibility of witnesses instruction was provided
in this case.

While it is true that John’s, Meza’s, and Small’s testimony
played an important role in the State’s case, they were all
properly subjected to thorough and detailed
cross-examination. One could easily conclude that no juror
of average intelligence could have heard their testimony
and accompanied cross-examination without realizing that
their credibility was at issue. See State v. Moore, 229
Kan. 73, 79-81, 622 P.2d 631 (1981). Because these three
witnesses were not accomplices and because their testimony
was substantially corroborated, the trial court’s refusal
to give a cautionary accomplice witness instruction was not
reversible error under either standard of review.

Did the Trial Court Err in Failing to Instruct the Jury on
Kidnapping, Criminal Restraint, Robbery, and Theft as
Lesser Included Offenses?

Simmons argued to the Court of Appeals that the trial court
erred in failing to instruct the jury on kidnapping,
criminal restraint, robbery, and theft as lesser included
offenses. In light of the Court of Appeals’ reversal based
on the trial court’s refusal to give a cautionary
accomplice witness instruction, the panel did not address
this issue involving lesser included offense instructions.

Standard of Review

Simmons did not request lesser included offense
instructions at trial. Where an instruction was not
requested, the failure to give an instruction is clearly
erroneous only if the appellate court reaches a firm
conviction that, had the instruction been given, there was a
real possibility the jury would have returned a different
verdict. Boone, 277 Kan. at 220.

Except in a felony-murder case, a criminal defendant has a
right to an instruction on all lesser included offenses
supported by the evidence as long as (1) the evidence, when
viewed in the light most favorable to the defendant’s
theory, would justify a jury verdict in accord with that
theory and (2) the evidence at trial does not exclude a
theory of guilt on the lesser offense. State v. Williams,
268 Kan. 1, 15, 988 P.2d 722 (1999). An instruction on a
lesser included offense is not proper if from the evidence
the jury could not reasonably convict the accused of the
lesser offense. State v. Robinson, 261 Kan. 865, 883, 934
P.2d 38 (1997).

The principal crimes in this case were aggravated
kidnapping and aggravated robbery. As Simmons correctly
notes, kidnapping and criminal restraint are lesser
included offenses of aggravated kidnapping. See State v.
Hammond, 251 Kan. 501, 507, 837 P.2d 816 (1992); State v.
Bourassa, 28 Kan. App. 2d 161, 173, 15 P.3d 835 (1999), rev.
denied 269 Kan. 934 (2000). Moreover, robbery and certain
types of theft have been deemed to be lesser included
offenses of aggravated robbery. See State v. Sandifer, 270
Kan. 591, 601, 17 P.3d 921 (2001); State v. Davis, 256 Kan.
1, 23, 883 P.2d 735 (1994). Simmons argues that the trial
court should have instructed on these lesser included
crimes because, based on the evidence, the jury could have
convicted him of the lesser crimes.

To prove that Simmons committed aggravated robbery, the
State had the burden to show that he took “property from
the person or presence of another by force or by threat of
bodily harm to any person” and that Simmons was “armed with
a dangerous weapon or [inflicted] bodily harm upon any
person in the course of such robbery.” See K.S.A. 21-3426;
K.S.A. 21-3427. To prove that Simmons committed aggravated
kidnapping, the State’s burden was to show that he confined
Baker, accomplished by force or threat, with the intent to
hold him to facilitate the commission of any crime —
e.g., aggravated robbery — and that Simmons inflicted
bodily harm upon Baker. See K.S.A. 21-3420; K.S.A. 21-3421.

For both crimes, there was overwhelming evidence of bodily
harm suffered by Baker. His hands and feet were duct-taped
to a table, his head and face were covered in duct tape, he
was left this way for over 12 hours, and Baker suffered
long-term nerve damage and kidney problems.

On appeal, Simmons does not dispute that Baker suffered
bodily harm. He merely argues that there was evidence to
support the lesser included offenses. Simmons’ defense
theory, however, was that he did not commit the crimes.
Therefore, given the evidence, the jury had the opportunity
either to believe Simmons and acquit or to believe the
incriminating evidence and find Simmons guilty of the
aggravated crimes. The evidence at trial clearly excluded
the lesser included offenses. Lesser included offense
instructions were not warranted because the jury could not
have reasonably convicted Simmons of the lesser offenses.

Under the circumstances, the trial court’s failure to give
lesser included instructions for kidnapping, criminal
restraint, robbery, and theft was not clearly erroneous.

Are the Defendant’s Convictions of Aggravated Kidnapping
and Aggravated Robbery Multiplicitous?

The final issue raised on appeal, but not addressed by the
Court of Appeals, is Simmons’ contention that his
aggravated kidnapping and aggravated robbery convictions
are multiplicitous. This contention lacks merit.

Standard of Review

Simmons did not raise the multiplicity issue below, but
Kansas appellate courts may consider multiplicity for the
first time on appeal to serve the ends of justice or
prevent a denial of fundamental rights. State v. Dubish,
234 Kan. 708, 718, 675 P.2d 877 (1984); State v. Hankerson,
34 Kan. App. 2d 629, 632, 122 P.3d 408 (2005), rev. denied
281 Kan. ___ (2006); State v. Taylor, 25 Kan. App. 2d 407,
409-10, 965 P.2d 834, rev. denied 266 Kan. 1115 (1998). “The
fundamental right of a defendant to a fair trial under the
5th and 14th Amendments to the Constitution of the United
States would be violated by a multiplicitous conviction.”
Dubish, 234 Kan. at 718.

The issue of whether Simmons’ convictions are
multiplicitous is a question of law subject to unlimited
review. State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48
(2006).

Simmons argues that the State’s theory of the aggravated
kidnapping was that Simmons took and confined Baker by
force or threat with the intent to hold Baker to facilitate
the aggravated robbery. Simmons contends that the only
force inflicted on Baker, striking Baker on the head and
taping him to the table, involved a single act of violence.
Therefore, according to Simmons, that single act of violence
could not be used to support both crimes.

Application of Schoonover

In making this single act of violence argument, Simmons
relies on State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004),
which recognized the single act of violence paradigm.
However, in Schoonover, 281 Kan. at 492-95, this court
recently rejected this multiplicity paradigm as a
corruption of early multiplicity jurisprudence and
overruled Groves.

In Schoonover, this court developed a test to apply to
multiplicity issues. First, a court must consider whether
the convictions are based upon the same conduct. If not,
the multiplicity analysis ends. 281 Kan. at 496. The
Schoonover court listed four nonexclusive factors to
consider in determining whether convictions arise out of the
same conduct:

“(1) whether the acts occur at or near the same time; (2)
whether the acts occur at the same location; (3) whether
there is a causal relationship between the acts, in
particular whether there was an intervening event; and (4)
whether there is a fresh impulse motivating some of the
conduct.” 281 Kan. 453, Syl. § 16.

If the convictions are based on the same conduct, the court
must consider whether the charges in the complaint or
information under different statutes requires proof of an
element not necessary to prove the other offense (the same
elements test); if so, the charges stemming from a single
act are not multiplicitous. 281 Kan. at 495-98.

In the present case, the aggravated robbery conviction and
the aggravated kidnapping conviction clearly arose out of
the same conduct. The offenses were committed at the same
time and at the same place, i.e., in Baker’s trailer. There
was no evidence of intervening events between the two
offenses, and there was no evidence of a fresh criminal
impulse occurring between the aggravated kidnapping and the
aggravated robbery.

This leads the analysis into the second step —
considering whether the two crimes are the same offense by
statutory definition. Simmons’ convictions were based upon
different statutes. A same-elements test reveals that each
offense required proof of an element not necessary to prove
the other offense. Aggravated kidnapping, under the
statutory subsection charged in this case, requires proof
of movement or confinement of the victim with intent to
hold such person in order to facilitate the commission of
an aggravated robbery and bodily harm results. See K.S.A.
21-3420(b); K.S.A. 21-3421. Among other elements,
aggravated robbery requires the unlawful taking of property
from the person or presence of another by force or threat
of bodily harm. K.S.A. 21-3426; K.S.A. 21-3427. The
movement or confinement element of aggravated kidnapping is
not required to prove aggravated robbery, and the unlawful
taking of property element of aggravated robbery is not
required to prove aggravated kidnapping.

Under the test outlined in Schoonover, Simmons’ convictions
are not multiplicitous.

Judgment of the Court of Appeals reversing the district
court is reversed. Judgment of the district court is
affirmed.

LUCKERT, J., not participating.

LOCKETT, J., Retired, assigned.[fn1]

[fn1] REPORTER’S NOTE: Justice Tyler C. Lockett, Retired,
was appointed to hear case No. 91,659 vice Justice Luckert
pursuant to the authority vested in the Supreme Court by
K.S.A. 20-2616.