State v. Weber, 297 Kan. 805

Background

Weber was convicted of rape and attempted rape of an 80-year-old woman after an in-home assault.
The district court sentenced Weber to two life terms without parole as an aggravated habitual sex offender under K.S.A. 2009 Supp. 21-4642.
The district court relied on Michigan convictions to classify Weber as an aggravated habitual sex offender.
Weber challenged multiplicity, the Michigan conviction’s status as a sexually violent crime, sufficiency of evidence for alternative means, jury instruction scope, and the constitutionality of the sentencing statute.
This appeal addressed whether the attempted rape conviction was multiplicitous, whether the Michigan conviction could support the enhancement, and whether the rape conviction and related procedures complied with law.
The court reversed the attempted rape conviction as multiplicitous, vacated the rape sentence, and remanded to determine if Weber qualifies as an aggravated habitual sex offender.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are rape and attempted rape multiplicitous?	Weber argues both convictions arise from unitary conduct.	State contends separate offenses were proved by distinct acts.	Convictions are multiplicitous; must reverse attempted rape.
Does the Michigan assault qualify as a sexually violent crime for 21-4642(c)(1)(B)?	Weber challenges whether prior Michigan conviction satisfies the 'sexually violent crime' requirement.	State asserts Michigan conviction can count under catch-all or as sexually violent crime.	Michigan assault does not clearly meet Kansas’ sexually violent crime definition; remand to resolve factual/legal basis.
Was the evidence sufficient to prove all alternative means of rape?	Weber contends there was no evidence of penile or object penetration as charged.	State argues penetration via finger satisfies the alternative means within the statute.	Rape is not an alternative means crime; finger penetration suffices; conviction upheld.
Is the jury instruction for attempted rape broader than the charging document?	Overbreadth of overt act description violates Trautloff.	No independent claim after reversal of multiplicity issue.	Issue mooted by reversal of the attempted rape conviction.
Is K.S.A. 2009 Supp. 21-4642 constitutional as applied, given facts not found by a jury?	Weber challenges enhanced sentence based on facts not proved to a jury.	Statute has been repeatedly upheld against these challenges.	Statutory scheme consistent with Kansan case law; no constitutional violation.

Key Cases Cited

State v. Schoonover, 281 Kan. 453 (2006) (framework for unitary conduct and multiplicity analysis)
State v. Thompson, 287 Kan. 238 (2009) (multiplicity framework; double jeopardy principles)
State v. Colston, 290 Kan. 952 (2010) (consideration of multiplicity on appeal to protect fundamental rights)
State v. Nguyen, 285 Kan. 418 (2007) (multiplicity and fundamental rights considerations)
State v. Sellers, 292 Kan. 346 (2011) (last-two-factors test; intervening event analysis)
State v. Foster, 290 Kan. 696 (2010) (causal relationship vs. intervening event in conduct analysis)
State v. Vaughn, 288 Kan. 140 (2009) (standard of evidence review in factual/legal mixed questions)
State v. Wright, 290 Kan. 194 (2010) (unanimity concerns in alternative means cases)
State v. Trautloff, 289 Kan. 793 (2009) (overbreadth of jury instructions)
State v. Britt, 295 Kan. 1018 (2012) (rape statute: penetration as actus reus; alternative means distinction)
Urban Renewal Agency v. Reed, 211 Kan. 705 (1973) (limitation on stipulations governing legal conclusions)