State v. Dale, 474 P.3d 291

Background

Dale and a juvenile companion confronted three skateboarders; Dale threatened two (Adam and Kyle) with a BB gun while the companion grabbed electronics found near them; a third skateboarder (wearing headphones) had his phone taken by the companion.
Charges: two counts of aggravated robbery (Adam: cell phone and iPod; Kyle: cell phone) and one count of theft (third skateboarder’s phone). Jury convicted on all counts; district court sentenced on each.
Court of Appeals reversed the aggravated robbery convictions due to a jury instruction error and remanded for retrial on those counts; the theft conviction was previously affirmed on appeal.
On remand Dale moved to bar retrial on aggravated robbery counts under double jeopardy / K.S.A. 21-3107(2)(a) and argued multiplicity; the district court denied the motion and found Dale guilty of both aggravated robbery counts after a stipulated-evidence bench trial.
Court of Appeals later held the two aggravated robbery convictions were not multiplicitous but concluded the affirmed theft conviction was multiplicitous with the aggravated robbery counts and reversed the theft conviction; Dale sought Supreme Court review.

Issues

Issue	State's Argument	Dale's Argument	Held
Whether retrial/conviction for aggravated robbery after an affirmed theft conviction violates K.S.A. 21-3107(2)(a) or the Double Jeopardy Clause	The prosecution is a single, continuing prosecution (“upon prosecution”); continuing prosecution of remaining counts is permitted; defendant who seeks and obtains a new trial waives double jeopardy protection	Dale: theft was a lesser included offense already affirmed on appeal, so retrial/conviction for the greater offense is a second prosecution barred by statute and the Constitution	Retrial/conviction not barred. Statute’s plain language covers the whole prosecution; precedent (Ohio v. Johnson) permits continuing prosecution of remaining counts; exceptions do not apply and Dale’s seeking of a new trial forecloses his double jeopardy claim
Whether Dale’s two aggravated robbery convictions are multiplicitous under the unit of prosecution test	The aggravated robbery counts target property taken from two different victims; force was applied separately to each, so separate convictions are permissible	Dale: conduct was unitary (single transaction) so multiple aggravated-robbery convictions constitute multiple punishments for the same offense	Not multiplicitous. The unit of prosecution for aggravated robbery permits separate convictions where force or threat severs possession/control from each victim (Adam and Kyle)
Whether the underlying acts constituted unitary conduct (same act/transaction)	Concedes same time/place but argues force was applied individually to each victim, supporting separate charges	Dale: all acts were one continuous transaction (unitary conduct)	Conduct was unitary (no intervening event or fresh impulse), so double jeopardy/multiplicity analysis must proceed, but unitary conduct alone does not mandate single conviction

Key Cases Cited

State v. Schoonover, 281 Kan. 453 (Kan. 2006) (framework for double jeopardy and multiplicitous-conviction analysis)
Ohio v. Johnson, 467 U.S. 493 (U.S. 1984) (permitting continuation of prosecution on remaining counts despite prior guilty pleas on other counts)
State v. Pham, 281 Kan. 1227 (Kan. 2006) (unit of prosecution analysis for robbery where possession/control ambiguities existed)
State v. Jackson, 218 Kan. 491 (Kan. 1975) (one transaction can support multiple robberies when property is taken from multiple persons)
State v. McQueen, 224 Kan. 420 (Kan. 1978) (single robbery where one person was compelled to surrender property belonging to multiple owners)
State v. Shoemake, 228 Kan. 572 (Kan. 1980) (separate aggravated robberies where property was taken from different employees holding custody/control)
State v. Glymph, 222 Kan. 73 (Kan. 1977) (defining "presence" and severance of possession/control for robbery)
State v. Evans, 251 Kan. 132 (Kan. 1992) (robbery taking from presence where possessor was not in immediate view)
State v. Weber, 297 Kan. 805 (Kan. 2013) (intervening-event/fresh-impulse discussion in multiplicity context)
State v. Sellers, 292 Kan. 346 (Kan. 2011) (holding separate acts separated by an interruption can be distinct offenses)
State v. Plummer, 295 Kan. 156 (Kan. 2012) (discussion of lesser-included offenses in robbery context)